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Assaults at Work II

In a previous post, the issue of Compensation for assaults by a co-worker was addressed. The question was asked if an assault by a co-worker was covered by Worker’s Compensation. The answer was Compensation would cover a claim arising out of an assault that occurred on the job. A second issue that may arise in this case is the right of an employee to directly sue a co-employee for assault.

Generally, employees may sue not their co-worker’s for negligence. If your co-worker’s negligence causes you to sustain injuries on the job, then your exclusive remedy is Compensation benefits. However, if that co-worker punches you, then you can also sue that co-worker for assault.  Unlike Compensation claims, in a suit for assault, the injured employee can obtain an award for pain and suffering.

Sometimes, direct suits against co-workers do not work out. Sometimes, employees may not be able to identify the assailant.  Sometimes, law suits against co-workers result in judgments that can never be collected because the assailant is insolvent.

But the injured worker can still elect to sue the assailant and can have a judgment against that person in the event the assailant ever becomes solvent in the future.

Injuries at School

“My daughter was injured playing softball at school.  She broke her ankle and needed a rod and pins inserted in her leg to repair it. Can she sue the school?”

Injuries incurred while engaging in recreational activities may lead to a successful claim against the school.  But while playing any sport, every particpant assumes that she or he will be subject to some risk that is not present in the classroom. The question of school liability comes down to handling the risk in the best way possible.

The standards for school conduct are different if the activity occurred during school hours in a physical education class versus an interscholastic competition. Besides seeing if written safety policies were followed, the court would have to look at the equipment involved (was it certified by the National Operating Commttee on Standards for Athletic Equipment?). Were the parents fully apprised of all the risks? How much training and experience did the coach have? Was the coach ever evaluated? Were there any prior complaints about the coach? If the safety equipment was certified, did the athlete have adaquate training so she knew how to use the equipement? Did the athlete have proper training to avoid injury? Was the athlete in good physical condition so she could avoid injury? Was the school equiped to render medical assitance so as to avoid further injury to the athlete?

There are many more areas of inquiry depending upon the cirmstances. Without spending more time discussing specifics, it is impossible to determine if the school was liable.

Assaults at Work

“I was injured at my job when a recently hired co-worker lost control of himself and punched me. Do I have a claim against my employer for hiring someone unstable?”

The short answer is yes.  This type of incident would be covered by Worker’s Compensation. Your employer’s Compensation Carrier will cover your medical bills and pay you lost wages while you recover from your injuries. Depending on the type and severity of your injuries, you may be entitled to a settlement at the conclusion of your Compensation case.

 

Injuries Abroad

“I was injured on a jet ski during a recent trip to the Bahamas. Can I sue the hotel for my injuries?”

This is a very complicated question. The answer is going to be probably not. But, the question is so complicated, it would probably take a a long consultation to give you a more precise answer with reasons why you probably couldn’t  sue the hotel.

You will have to consider jurisdiction, the applicable law, the doctrine of forum non conveniens, as well as forum selection clauses, mandatory arbitration clauses, and choice of law clauses. Each of these issues could fill up several law review articles, so I will only attempt to highlight the issues.

If you are injured in the Bahamas, there are substantial questions if an American court has the jurisdiction or authority to hear the dispute between the parties. An American court can have jurisdiction if the hotel or booking agent had marketed itself to people in the State. This may not be difficult, especially considering the internet allows easy international marketing, but this is only the first step.

Second, even if the American court has jurisdiction over the matter, the Court may be compelled to apply the law where the incident occurred. In the Bahamas, there are no jury trials or contingent fees where lawyers can represent victims for fees payable out of the victim’s recovery. (Doe v Sun International Hotels, Ltd., 20 F.Supp.2d 1328 (SD Fla. 1998))

Third, if the case survives the first two hurdles, it must survive a motion to dismiss for forum non conveniens. Essentially, the American court may have jurisdiction, but may decline to exercise that jurisdiction because which court is better suited to interpret the laws of a foreign country, an American court or the Courts in the foreign country?

Finally, if the case can move forward after those three issues, the booking agreement may have a clause or clauses buried in it which may dictate that any disputes be settled in a specific forum (country), or disputes must be settled using only the law of another country, or disputes be settled with arbitration for compensatory damages (medical bills) with no claims for pain and suffering.

Thus, without further information, it is impossible to say with certainty. But chances are, any claims you may have will be derailed by one of the above mentioned issues.

Reimbursement of Travel and Medical Expense

“I was hurt in an accident on the job last year. Can I get reimbursed for my trips to my doctor’s office?”

Yes, you can be reimbursed for your travel expenses. In order to get reimbursed, you should submit a C-257 form to the compensation carrier and the Compensation Board. (You can download the form directly from the Board’s websit by clicking on this sentence .) If you were our client, we could assist you with this process.

You are entitled to reimbursement for attending your doctor’s appointments and other treatments you receive, such as physical therapy appointments, and traveling for diagnostic testing such as an MRI, but you do not receive reimbursement for traveling to and from your pharmacy or attending hearings at the Workers’ Compensation Board.

If you drive yourself, or a friend or relative drives you to your appointment, your travel expenses are reimbursable at the approved rate per mile.  The Carrier’s will use google maps (or a similar search engine) to determine mileage bewteen your home and your doctor’s office. You can print out the results yourself and submit the mileagle along with the form. The rate you are paid at varies year to year.  This year the rate is 56 cents per mile. By clicking on this sentence you can see the reimbursement rates over several years.

If you travel to a hospital, hospital parking is reimbursed provided you obtain a receipt. If you take public transportation, you can be reimbursed provided you obtain receipts. The MTA now offers digital receipts (even if you are taking access-a-ride) which you can use to get reimbursed.

However, using services such as Uber is not generally allowed as a reimbursable expense. First, you need a doctor’s note stating that your medications prevent you from driving and, medically, public transportation is too far away and would require too many transfers or too much time for your condition. Second, you must prove that you have no access to a motor vehicle.

You can also submit medical expenses (with receipts) that are not paid directly by the carrier. Prescription medications, over the counter medications (which your doctor recommends with a note), and bandages, crutches, canes (which your doctor recommends with a note) should be reimbursed by the carrier.