Injured in unprovoked attack by a customer, but claim denied?
I'd just started a job, and while going through orientation at a cash register an erratic-acting customer wanted to greet me with a hand shake. When I did he grabbed my hand and wrist with both hands. He first pulled me off balance, then again, jerking and lifting me off the ground, where I ended up approximately 6-7 feet away.
He then grabbed me in a 'bear hug' causing severe damage/pain to my hand (broken blood vessels), wrist, elbow, shoulder, and underlying soft tissue. The lowest vertebrae closest to my spine is especially swollen and inflamed (bone spurs). I can't lift my right arm from my side and can hardly turn my neck.
The home improvement store I was working for sent me to an urgent care facility contracted by them. I received X-rays, a pain shot, cortisone shot, some physical therapy on the first day, and was instructed to return to work with 10lb. limitation (impossible). They set me up with an undetermined/unlimited amount of return visits for physical therapy.
At my last visit the doctor reexamined me and a prescribed prednisone. He told me I should be better, that I had to try to move/grip with my hand, and there was no reason I shouldn't be able to (although I can't grip anything). I went to physical therapy that day and had more scheduled appointments.
I received a letter 2 days later from the Dept.of Labor/Division of Workers' Compensation, stating my workers comp. claim had been denied. The reason they gave was, "Employee did not sustain an injury that arose out of or occurred in the in the course of employment." But I was on the clock when I was attacked?
During the course of treatment I found out that the customer who hurt me had done the same thing and had injured other employees (male and female) and management was aware of it. They even knew his name, but had disregarded it as 'horseplay' because no one had complained or filed an incident report before. He did the same act to a customer.
Now I'm in limbo, taking a medication that makes me sick. I have headaches and worse pain, without an option to do a followup visit with the physician who prescribed the medication. They have recorded security footage of the incident. If they claim it's not a workers compensation claim, do I now pursue a criminal/civil suit? Do I sue the customer who did this (I doubt he has any money)? How do I convince workers' comp to pay for my claim? Thank you.
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ANSWER for "Injured in unprovoked attack by a customer, but claim denied?":
D (Nashville, TN):
It is incredulous your employer's workers' compensation insurance company denied your claim. From the facts you present, you were working for the company at the time. File an appeal with the State of Tennessee's Workers' Comp Administration. For information about the appeals process, go to TN.gov.
If your appeal is denied, consider retaining an attorney. Most workers' comp attorneys will not charge for initial office consultations.
While Tennessee workers' comp statutes preclude injured workers from filing independent personal injury claims against their employers, there are some exceptions. Those exceptions include events where employers' conduct was grossly negligent, or displayed wonton indifference to the real possibility the workers may be exposed to undue harm or injury.
In your case, you may have the basis of such a claim. To succeed, your attorney will have to prove your employer not only knew the man who attacked you was dangerous, but that there existed a real probability the man could injure other workers.
Moreover, your attorney will have to prove that, in spite of a clear and present danger, your employer failed to take appropriate action to neutralize or eliminate the man who injured you. Your attorney will be able to subpoena the video tape.
There appears to be sufficient evidence the man who injured you committed the crime of assault. You have the right to report the event and hope the police will have him arrested. Your attorney can use the arrest to assist in your workers' compensation appeal, and in a separate personal injury claim.
The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.
Best of luck,
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