According to the Occupational Safety and Health Administration (OSHA), more than two million workers become victims of workplace violence each year. Assaults on workers occur on company premises, at off-site job locations, while making deliveries, and during other business-related activities. Depending on the circumstances, an injured worker can take one or more of the following actions:
- File a workers’ compensation claim
- File a third-party lawsuit against the employer
- File a criminal complaint
Workplace violence usually involves assaultive behavior. Most assaults are to the head and face and result in “soft tissue” injuries. These include bruising, cuts, black eyes and swelling. Assaults can also result in much more serious “hard injuries,” such as brain concussions, fractured skulls, broken bones, herniated disks, and deep gashes. In an extremely violent assault, a victim can sustain life-threatening internal injuries.
Under workers’ compensation laws, an employee injured from an assault has the right to collect workers’ comp benefits. These include payment of medical and therapy bills, out-of-pocket expenses (medications, bandages, etc.), and about two-thirds of wages lost during treatment and recovery.
To begin a workers’ comp claim, you have to file a “first report of injury” form with your employer. You must enter specific information about the date, time and cause of your injury. If your injuries are serious enough to require immediate hospitalization, you may complete the form once you’re stable.
If you need further treatment, ask your employer for a list of company-approved physicians. These physicians are ultimately paid by the insurance company. You choose one of them as your “primary treating physician.”
Your primary physician may schedule you for an MRI or CAT scan if she believes your injury is more serious than soft tissue damage. If you believe your physician isn’t acting in good faith, or that your injury is more serious than she thinks, you may request a second opinion from another company-approved physician.
In some cases you can hire your own physician, but there’s no guarantee you’ll be reimbursed by workers’ comp. You may have to pay the doctor’s costs out of your own pocket.
Your primary physician determines when you’ve reached a level of MMI (maximum medical improvement). At that time, she gives you a return to work form, which notes whether you are cleared to return to your former job duties or not.
Third-party Employer Liability
In most cases, on-the-job injuries are covered by the employer’s workers’ compensation insurance. Under certain conditions, an employee who is injured due to workplace violence may claim workers’ comp benefits AND pursue a “third-party” civil action against the employer.
Employers have a legal duty of care to protect their employees from undue harm and physical injury in the workplace. This includes taking reasonable actions to keep people with a known history of aggressive behavior off the premises and away from workers. Those actions include running criminal background checks, administering drug tests, checking references, and disciplining or firing workers who display aggressive behavior.
When your employer doesn’t take reasonable actions to protect you from workplace violence and you are injured, you may have the right to file a third-party lawsuit. This requires proving your employer failed to protect you, and the failure constituted gross negligence or a wanton disregard for your safety.
Example: Assaulted by coworker
Gerry was a high school student who made good grades and was never in trouble. To save money for college, he worked part-time at a local fast food restaurant owned by Mr. Smith.
After another employee quit and walked off the job, Mr. Smith needed to fill the position immediately, so he hired Sam without doing a background check. A couple of employees knew Sam had a criminal record with several convictions for violent crimes. They had a meeting with Mr. Smith and told him that they feared for their safety if Sam was hired. Mr. Smith felt they were overreacting and dismissed their claims.
Within a week, several coworkers observed Sam making threats of bodily injury to Gerry. Gerry told Mr. Smith about the threats and that he feared for his safety. Mr. Smith took no actions. Three days later while Gerry was emptying the trash, Sam attacked and severely beat him. Gerry sustained a concussion, a fractured left clavicle, and soft tissue injuries to his face.
Gerry filed a workers’ compensation claim. After seeking legal advice, Gerry’s parents also filed a third-party civil lawsuit, alleging “but for” Mr. Smith’s gross negligence and wanton disregard for Gerry’s safety, he wouldn’t have been seriously injured.
Mr. Smith’s attorneys tried to assert that Gerry was limited to workers’ comp benefits only, and asked the court to dismiss his lawsuit. The attorneys stated that their client may have been negligent in hiring Sam, but his actions did not meet the legal requirement of gross negligence or a wanton disregard for Gerry’s safety.
The court disagreed. It held that Mr. Smith’s actions constituted a basic failure to keep his premises safe for Gerry and his coworkers. The court awarded Gerry $100,000 in damages for his medical bills, out-of-pocket expenses, all his lost wages, and a substantial amount for his pain and suffering. The court also awarded Gerry’s attorneys’ fees.
Because state laws require injured employees to reimburse workers’ compensation for benefits paid, Gerry had to pay back $25,000 to workers’ comp. He kept the remaining $75,000.
Criminal Action against an Attacker
One of the first things to do after a workplace assault is to contact the police and file a criminal complaint against your attacker. In most cases of workplace assaults, there are enough witnesses (coworkers or customers) to give the police probable cause to arrest your attacker.
Make clear to the police your attack was unprovoked. An angry verbal exchange usually isn’t considered sufficient provocation; however, if you made threats of imminent injury or death, you may not be able to claim you were unlawfully attacked. In that case, your attacker could say he was defending himself.
A few days after the assault, get a copy of the police report. It may be valuable evidence in a third-party lawsuit against your employer. After a week or so, contact your local district attorney’s office and speak with the prosecutor assigned to your case. Let her know you have medical bills and out-of-pocket expenses, and need financial help to pay them.
Most states have victim compensation funds. These are funds set aside by the state to make reparations to crime victims, especially those with no insurance or who can’t pay all the costs related to the attack. The prosecutor can help you make arrangements if you need help from the fund. If you’ve already received compensation for your damages from another source, you may not be eligible.
The court may order your attacker to pay “restitution.” If your attacker receives probation, the prosecutor can ask the court to order him to pay for your damages as a condition of his probation. That amount isn’t paid directly to you, but it may come through the compensation fund or other state or county source. If the court agrees and your attacker defaults on a payment, he may be in violation of his probation and subject to arrest.
The Role of Attorneys
An attorney is usually not necessary in a workers’ compensation claim for soft tissue injuries. Payment for medical bills, out-of-pocket expenses, and a portion of lost wages is standard. But if you’re seriously injured, you should meet with a workers’ comp attorney as soon as possible. Most won’t charge for an initial consultation.
Third-party claims against employers almost always require legal representation. Your employer has the insurance company and their attorneys working for him, and you need an experienced personal injury attorney who can stand up to them.
Your attorney can take depositions, subpoena records, and if necessary, file a lawsuit on your behalf. And because your attorney is only paid if she succeeds in settling your claim or winning it at trial, you won’t have to worry about paying fees in advance.
In a criminal case, you don’t need to hire an attorney because you are represented by the state or local prosecutor’s office at no cost to you.
Assault and Battery in a Parking Lot
In this case example an employee is assaulted in the parking lot while leaving work. There is obviously criminal liability for the assault, but the employer bears some responsibility for not fixing an unsafe condition on their property.
Assault Case Filed Against an Employer
In this felonious assault case the plaintiff is seeking workers comp benefits from her employer after alleged sexual harassment. The employer was arrested by police.
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