Preventing Violence in the Workplace: Minnesota Work Comp.

Preventing violence in the workplace involves recognizing situations that could potentially lead to violence, and taking steps to prevent violent incidents. A safe work environment is everyone’s responsibility. Employees should be trained on how to recognize an unsafe situation relating to co-workers, employers need to stress that workplace violence is not “part of the job,” and no one has to “put up with it,” and employees should alert management to co-workers who are verbally or physically threatening other workers.

Prior to a violent act, there are almost always red flags. After a violent workplace incident, people almost invariably say “there were warning signs,” or “we should have known.” Employees and employers should be aware of these red flags, and report them before an act of violence takes place: 

• Prior history of violent behavior. 
• Making threats, either verbal or physical. 
• Unexplained mood changes. 
• Screaming, yelling, or making a fist. 
• Expressing homicidal or suicidal thoughts. 
• Holding a grudge against a supervisor/co-workers. 
• Blaming all things that go wrong on a co-worker, supervisors, or management. 
• Expressing a feeling of loss of control within his or her life. 
• A history of domestic abuse. 
• Obsession with weapons or carrying a weapon in the workplace. 
• Isolation from co-workers. 
• Paranoid behavior or verbalizations reflecting paranoid thoughts. 
• Unwanted romantic interest in a co-worker. 
• Abuse of alcohol or illicit drugs. 
• Use of alcohol or illicit drugs at work. 
• Extreme financial or extreme family problems. 

Employees who observe any of these red flags should be encouraged to report them to their immediate supervisor. Employers need to have a process in place to document employee concerns, and to take measures, if appropriate, to protect employee safety.

Workplace violence is not always the result of violent actions of another co-worker. People who work with the general public, such as convenience store cashiers, may be subject to violence from outsiders. Terroristic acts by disgruntled former employees or disgruntled customers can also be the cause of workplace violence. Unfortunately, domestic violence situations can spill over into the workplace, as well.

Employers need to have to have a policy in place addressing how to deal with violent situations from customers or non-workers. Employers should also be cooperative in enforcing no contact orders, and have procedures in place to prevent non-employees from gaining access to the workplace.

Unfortunately, despite good policies and procedures, workplace violence does happen, and will continue to happen. If a worker suffers injuries as the result of workplace violence, in many cases, that worker is eligible for workers’ compensation benefits.

In Minnesota, work injuries that are the result of workplace violence are separated into three separate categories. Injuries which fall into two of the three categories are covered under workers’ compensation, but injuries which fall into the third category are not covered by workers’ compensation. This is known as the Hanson analysis, named after the case of Hanson v. Robitshek Schneider Co., 297 N.W. 19 (1941).

1. First, injuries that are the result of workplace violence where the provocation or motivation behind the assault arises solely out of the activity of the victim as an employee, are covered under Minnesota workers’ compensation. 
2. Second, injuries that are the result of workplace violence where the assailant was motivated by personal animosity towards the victim arising from circumstances completely unconnected with the employment. These injuries are not covered under Minnesota workers’ compensation. 
3. Third, injuries that are the result of workplace violence directed at the victim due to a combination of personal non-work related reasons, and work-related reasons are covered under Minnesota workers’ compensation. Cases where the assailant’s motivation is unknown are usually covered under workers’ compensation. 

Most injuries caused by workplace violence fall into the third category – the assailant was motivated by a combination of workplace factors and non-workplace factors, and they are covered by Minnesota workers’ compensation. That being said, many workers’ compensation insurers will deny injury claims involving assaults or violence, arguing that the incident was non-work related. Just because the workers’ compensation insurance company says your case is not covered, does not mean that they are right!

We’ve represented a wide variety of Minnesota workers who suffered injuries as a result of workplace violence, including a woman who was sexually assaulted by a supervisor, a security guard who was assaulted by a trespasser, a convenience store cashier who was assaulted by a customer, an individual who was hit on the head by a co-worker, several police officers who were assaulted by suspects, corrections officers who were assaulted by inmates, and home health care workers who were assaulted by clients.

If you’ve sustained injuries as a result of violence in your workplace, an experienced Minnesota workers’ compensation lawyer can help you get the benefits you’re entitled to, and navigate the Minnesota workers’ compensation system. For a free, no-obligation consultation, call Meuser & Associate at 877-746-5680 or click here to send us an email to schedule a time to speak with one of our attorneys.

Murder and Minnesota Workers' Compensation

Everyone knows that some jobs are more dangerous than others and that some workers are more likely to get hurt on the job than others. But the risk of being murdered on the job is not something anyone should have to think about. 

I was shocked and saddened to read that an 18-year-old woman was murdered in Montevideo, Minnesota on Friday night. I’m originally from Southwest Minnesota near Monte and I have family in Montevideo.

This young woman, who leaves behind an 18-month old son and a fiancée, as well as her parents, was stabbed to death by a 24-year-old co-worker as she left Pizza Ranch after finishing her shift. The initial news reports suggest that the suspect, who had worked with the victim for a year, had become infatuated with the young victim, but the feelings weren’t mutual. Apparently, the suspect was somewhat of a social outcast and the kind-hearted victim had been friendly to him. As a result he started offering to do her chores at work and began giving her cigarettes. It is unclear whether or not the suspect had also been working a shift at Pizza Ranch that night prior to the murder. It is expected that he will be charged with first degree murder.

I extend my deepest sympathies to the family of the young victim.

Dependents of workers who are killed in the course and scope of their employment in Minnesota are eligible for death and dependency benefits, including burial expense benefits of up to $15,000.00, and dependency compensation. Dependents can include: 1) spouses, 2) children under the age of 18, 3) children under the age of 25 who are full-time students, and 4) children over the age of 18 who are deemed to be physically or mentally incapacitated from earning. Other family members, including the deceased workers’ mother, father, grandmother, grandfather, sister, brother, mother-in-law, or father-in-law, may be entitled to workers’ compensation benefits if the family member was wholly or partially supported by the deceased worker.

Thankfully, murder is not an issue that comes up too often in workers’ compensation in Minnesota. That being said, depending on the circumstances, even when a worker is murdered on the job in Minnesota, it may or may not be covered by workers’ compensation.

Minnesota workers’ compensation law sets forth that

"Personal injury does not include an injury caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons and not directed against the employee as an employee, or because of the employment." Minn. Stat. §176.011, Subd. 16. 

In plain language what this means is that an employee must show that the injury (or death) caused by a third-party or co-worker was unintentional, or if it was intentional, motivated by the fact that the employee was an employee.

Over the years, the court developed a test, as set forth in Hanson v. Robitshek Schneider Co., 11 W.C.D. 463, 297 N.W. 19 (1941), which divides cases involving intentional acts, including murder, into three categories:

• Where the assailant is motivated by personal animosity towards his victim arising from circumstances wholly unconnected to the employment, the employee’s injuries are not compensable under Minnesota workers’ compensation. 
• Where the assailant was provoked or motivated solely out of the activity of the victim as an employee, the employee’s injuries are covered under Minnesota workers’ compensation. 
• Where the assault was directed at the victim neither solely due to the employment, nor solely due to personal reasons, these cases are usually compensable. 

In the young woman’s case above, because there are indications that the suspect was obsessed with the victim, it is not 100% clear which category this case would fit into. While it might be possible to argue that there are potential defenses to this claim, I would sincerely hope that the workers’ compensation insurance company does the right thing. 

Is My Injury Work-Related? -- Minnesota Workers’ Compensation

If you’re sustained a work-related injury in Minnesota, you may be eligible for workers’ compensation benefits, including medical expense benefits, wage loss benefits, permanent partial disability benefits, and/or rehabilitation benefits.

In order to qualify for workers’ compensation benefits, you must be able to establish that your injury arose “out of and in the course and scope of employment.” The work activities must also be a substantial contributing factor to the injury.

Arising Out of the Employment 

The “arising out of” requirement is a legal causation standard. It basically means that there must be a causal connection between the employment and the injury. Generally, what this means is that you must show that a condition or incident of employment increased your exposure to potential harm beyond that of the general public or beyond your exposure to potential harm outside of work. In plain language, what this means is that the circumstances of your employment must have had something to do with the work injury.

Most on-the-job injuries satisfy this rule. There, are a few exceptions, however, where an on-the-job injury may not necessarily “arise out of’ the employment, including:

Injuries caused by “Acts of God.” Acts of God can include anything from injuries caused by disease or severe weather. There are many “exceptions” to this “exception,” however. If an employee’s work circumstances placed them at increased risk to exposure to the “Act of God,” or if an employee’s injuries sustained as a result of an “Act of God,” were worsened due to their work activities or circumstances, those injuries are generally compensable.

Injuries while “Coming or Going.” Generally speaking, if you sustain injury while on your way to work, or on your way from work, your injury is not covered for purposes of workers’ compensation. This is known as the “Coming and Going Rule.” Again, there are several exceptions to this exclusion. For example, employers are obligated to provide safe ingress to or egress from the employment premises. In plain language, that means injuries sustained on your way into or out of the workplace, such as walking to an employee parking lot, are generally covered.

Injuries due to the intentional acts of third parties. On the-job injuries that are the result of a violent act of a third party, totally unconnected with the employment, are not compensable. In most cases, however, there is at least some connection between the circumstances of the employment and the violent act, so these types of injuries are usually covered.

Idiopathic injuries. “Idiopathic” basically means spontaneous, or peculiar to the individual. Personal conditions that cause an injury at the workplace are not compensable. That being said, if the employment premises or activities aggravate or increase the risk of injury, these types of injuries can be compensable.

In the Course and Scope of Employment 

To meet the second part of the legal causation test, you must also show that the injury occurred within the period of the employment, and at a place where you could reasonable expected to be, and while you were performing your duties or something incident thereto. In plain language, this means that typically your injury must have occurred on the employer’s premises, during working hours, while performing your job duties.

There are, however, a number of exceptions to these requirements, including:

Traveling employees. Employment that requires travel involves a special set of rules. Each case is very fact specific, and involves an analysis of where the employee was at the time of the injury, what the employee was doing, and if the employee was required to be traveling as part of his or her duties.

Acts to assist others outside the employment. Generally, an act outside an employee’s regular duties, which is performed to advance the interests of the employer, is considered to be within the course of employment.

Acts of “personal comfort.” Under what is known as the “Personal Comfort Doctrine,” injuries that are sustained while an employee is attending to personal needs or comforts are generally held to be within the course of employment. This can include getting a drink of water, smoking, and using the restroom.

Horseplay. “Goofing around” or “horseplay” is generally considered to be incidental, or related to employment, and injuries that occur during such activities are generally compensable.

Violation of employer rules. Even violating an employer’s rules which results in an injury, is usually not grounds to deny benefits, unless the employee is engaged in a prohibited act at the time of the injury, and there must be a direct link between the performance of the prohibited act and the injury.

Recreational activities and employer sponsored events. Most social and recreational activities are no longer considered to be within the course of employment, unless the employee is able to show that the employer ordered or assigned the employee to participate in the program.

Injuries during lunches or breaks. Injuries that occur during a lunch break that is unpaid and off the employer’s premises are usually not covered, although there are some exceptions.

Work from home and home offices. This is becoming more and more common. Injuries sustained by employees during the actual performance of work activities while at home are generally compensable.

Substantial Contributing Factor

In addition to meeting the legal causation requirements set forth above, an employee must also show that his or her work activities were a substantial contributing factor to the development of his or her injury. There are a variety of different types of injuries that satisfy this definition, including specific injuries, Gillette-type or cumulative trauma injuries, aggravations or accelerations of a pre-existing condition, and occupational diseases. An employees work activities need not be the only cause of the condition—they need only be a substantial contributing factor.

Specific injuries. Specific injuries occur as a result of a specific incident or an accident. These are usually pretty clear. For example, falling off a ladder, sustaining a lifting injury, or being involved in a work-related motor vehicle collision are all specific incidents or events.

Cumulative trauma or Gillette-type injuries. Compensation is allowed for injuries that occur as a result of repetitive, minute trauma brought about by the performance of ordinary job duties. These types of injuries can occur over a long period of time. So long as an employee’s work activities are a substantial contributing factor to the development of the injury or condition, they are covered. Some common examples of these types of injuries include carpal tunnel syndrome or degenerative disc disease of the spine.

Aggravations or accelerations of a pre-existing condition. If an employee’s work activities substantially contribute to an aggravation or acceleration of a pre-existing condition, those conditions or injuries are compensable as well. A work-related aggravation can be temporary, or an aggravation can be permanent.

Occupational diseases. In very general terms, a disease that arises out of and in the course of employment, and which is peculiar to the occupation in which the employee is engaged, and which is not an ordinary disease of life to which the general public is equally exposed, is covered under Minnesota workers’ compensation. Occupational diseases have very specific definitions, causation requirements, and procedural rules.

Consequential injuries. Injuries that occur as a direct and natural consequence of a previous compensable injury are also, themselves, compensable. This can include conditions that develop as a medical consequence of an injury, and it can include injuries that are sustained as a legal consequence of a prior, work-related injury. For example, an injury that is sustained while doing physical therapy for a prior injury is a consequential injury. Injuries sustained as a result of a car accident on the way to a workers' compensation doctor's appointment are consequential injuries.

Psychological injuries.  Physical injuries which are occasioned by mental stimulus, and psychological injuries which are caused by a physical injury, may be covered for purposes of workers’ compensation. Psychological injuries which are occasioned by mental stimulus are not generally covered by workers’ compensation.

Some on-the-job injuries are obvious – if you fall off a ladder while performing your job duties and you sustain injuries, that’s clearly a work-related injury. If you sustain a lifting injury and hurt your back while performing your job duties, that’s clearly a work-related injury. Some work-related injuries, however, are not quite so obvious. If your injury falls into one of these "gray" areas, chances are, the workers' compensation insurer will deny your claim. Don't rely on the workers' compensation insurance company to make a "fair" determination as to whether your claim is compensable or not.

We frequently talk to individuals who sustain injuries or conditions that clearly meet the requirements of a work-related injury, but they didn't realize they had a compensable claim. If you believe you've sustained an injury that may be a result of your work activities, contact Meuser & Associate for a free, no-obligation case evaluation at 877-746-5680, or click here to send us an email. 

 

Health Care Workers and Workplace Violence

According to Medical New Today, in September 2010, a nurse was attacked and beaten by a psychiatric patient at Franklin Hospital in New York. She suffered facial fractures requiring multiple surgeries as part of her recovery.

Unfortunately, this type of on-the job violence faced by nurses and other health care nurses is very common. According to studies, 430,000 nurses are victims of on-the-job violence each year, and OSHA estimates that 48% of all non-fatal injuries from occupational assaults and violence occurred in healthcare and social service settings. Sadly, there were also 69 homicides in the health services between 1996 and 2000. Among all healthcare workers, nurses are most likely to be assaulted, and most assaults occurred in hospitals, nursing and personal care facilities.

In 2000, health service workers overall suffered injuries causing days away from work as a result of violent assault at a rate of 9.3 per 10,000 full-time workers. For social workers, the rate was 15 per 10,000 workers, and for personal care facility workers, the rate was 25 per 10,000. In the overall private sector, the injury rate due to violent assault is 2 per 10,000.

The rate of violence in the health care field is actually much higher than OSHA’s figures represent. According to the Department of Justice’s National Crime Victimization Survey for 1993 to 1999, the average annual rate non-fatal violent crime for physicians was 16.2 per 1,000, for nurses, the rate was 21.9 per 1,000, for mental health professionals, the rate was 68.2 per 1,000, and for mental health custodial workers, the rate was 69 per 1,000.

OSHA notes that the actual number of incidents is probably much higher. Violence is likely to be underreported, due in part to the perception within the health care industry that assaults and violence are part of the job. Underreporting may also be due in part to a lack of institutional reporting policies or fear on the part of the employee that reporting violence may reflect poor job performance.

Violence can occur within any area of the health care industry. The health care industry includes public and private hospitals, nursing and residential care facilities, home health care services, outpatient care centers, ambulatory care centers, and medical and diagnostic laboratories. Occupations within this field include, but are not limited to, physicians, surgeons, dentists, dental hygienists and assistants, registered nurses (RN), licensed practical nurses (LPN), licensed vocational nurses (LVN), physician’s assistants, social workers, physical therapists, psychiatrists, psychologists, radiologists, audiologists, chiropractors, dieticians and nutritionists, pharmacists, optometrists, podiatrists, radiologists, technicians, emergency medical technicians (EMT) and paramedics, nursing aids, certified nursing assistants (CNA), home health aides, orderlies and attendants, occupational therapists, medical assistants, personal aides and home health care aides.

Violence is NOT a normal part of the job, nor is it acceptable. If you’re injured at work, even if it seems relatively minor, it is very important that you report it!

I represented a woman who did in-home health care. Over the course of a few years, she had several separate instances where she was assaulted by the clients she was caring for. At the time, she didn’t really think she was injured, but she started to develop worsening low back pain. Finally, while restraining a client who was demonstrating violent behaviors, her back pain suddenly became severe. Within a few months, she had to undergo a two-level fusion in her low back. All of the relatively small injuries she sustained over a few years contributed to significant wear and tear in the discs in her low back, and the final incident, although it was relatively minor, was the proverbial straw that literally broke her back.

Protect your health and your livelihood by reporting your injuries!

Meuser & Associate has represented dozens and dozens of Minnesota health care workers who have sustained on-the-job injuries as a result of violence, or otherwise. Health care workers who sustain injuries arising out of and in the course and scope of their employment may be entitled to workers’ compensation benefits.

For a free, no-obligation consultation to learn more about your Minnesota workers’ compensation rights, and how to protect yourself if you’re injured on the job, call us at 877-746-5680 or click here to send us an email to speak with Ron Meuser or Jen Yackley.