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Replying to Thread: Psyche Injury?
Created On Tuesday 24, February, 2009 10:17 PM by shark


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shark
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Tuesday February 24, 2009 10:17 PM

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Assume the following facts: security guard working for a bank is walking around the bank's parking lot looking for "bad guys." Distracted, the guard negligently walks in front of moving car that is forced to veer right to avoid striking the him. The car then drives up onto a sidewalk where a child is standing and kills the innocent child. The guard, who has worked for the bank for more than one year, twisted his ankle trying to avoid the car. Immediatly after the incident, the security guard files an claim form for his lower extremity injury as well as for the psyche injury incurred as a result of having seen the little girl killed. Does he have a valid claim?

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Jpod
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Wednesday February 25, 2009 8:52 AM

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Why wouldn't he have a vallid claim? Unless you have time and place arguments (which you do not illustrate) he was acting as a security guard. Look up the statistics on how often banks are robbed each week, you'd be surprised at the frequency it occurs, at least I was when I learned about it almost 30 years ago.

What the nature and extent of the claim is may be subject to debate but you have an incident that arose of, and in the course of employment.

Would you have any issues realizing that you caused a child to be hit by a car, which then led to the child's death? Injury doesn't seem that far fetched at all. WC is no fault so the security guards negligence is immaterial.

I think the employer also has to worry about a third party claim from the driver of the vehicle who may also have psychiatric injuries b/c of the negligent acts of the security guard - not watching where he was walking - which caused them to swerve and hit the child. The WC claim is hardly the big dollar issue here.

edited note:
Not to mention the obvious claim from the parents of the child. The security guard's negligence imputes to the bank in the civil case so the bank has potential civil liability which wil hurt subrogation too.

Edited: Wednesday February 25, 2009 at 9:03 AM by Jpod

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appliedpsych
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Wednesday February 25, 2009 12:41 PM

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Distracted or not, from the information you gave, he was in the performance of his job, so a AOE/COE seems a logical assumption. A full company intitiated investigation of all the facts would be needed, to understand all the various factors of the case, and that should be given to the psych QME.

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steelmanlaw
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Thursday February 26, 2009 2:44 PM

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he was obviously injured during COE. the question is whether it is AOE. logically, you would say that if the ankle injury arises out of employment, then so does the psyche. both derive from the same negligent driver, and in the absence of employee S&W, the Ee's negligence is irrelevant. however, the critical question is whether the employment increased the risk of the applicant by any substantial amount that he would see the girl being struck by the car.

would not be hard at all to find AOE and COE.


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Loislane
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Thursday February 26, 2009 6:54 PM

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Has the EE satisfied the statutory time period of employment, for a psyche claim? Six months.

Lois

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art...
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Thursday February 26, 2009 7:09 PM

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LL,

From initial post " The guard, who has worked for the bank for more than one year, ". Additionally, one could (probably) successfully argue the event was "Sudden and extraordinary" thus negating the six month requirement.


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Loislane
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Thursday February 26, 2009 10:18 PM

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Thanks, Art,

I see, said the blind man, as he picked up his hammer, and saw.
My new pup stepped gingerly walked across my 'puter keyboard last night, and made all my text teeny-weenie!!!!

I would argue that the sudden & Extra would apply if the injury happened to the guard, himself. I am not familiar with cases that apply this theory when the physical injury occurs to a 3P, and the EE asserts a psyche claim. This is most commonly asserted in Tort law, emotional distress claims.

James Stewart may be aware of instances involving WC claims.

Lois

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stewshe@comcast.net
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Friday February 27, 2009 5:36 AM

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Lois,

No specific cites, but I would think it would qualify as "sudden" and as far as "extraordinary" goes, I doubt this is the type of thing which has ever happened to a bank guard before?

Falling from a ladder is also sudden, but there are cases saying that it is not extraordinary for people who work on ladders. I guess the reasoning is they shouldn't be surprised by a fall since it is rather obvious.

I doubt the defense would be upheld on these facts. Seems reasonable to me the child's death and psyche problems due to the MVA would almost certainly be found compensable.

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Author: Work Comp Index & Tables & Schedules in "The Labor Code Book," by LexisNexis/Matthew Bender.

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7dayweekend@mindspring.com
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Friday February 27, 2009 7:31 AM

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I don't understand why this would even be a close call. It's a no fault system. Compensable.

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bassman314
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Friday February 27, 2009 4:00 PM

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You don't have grounds to deny the claim outright. The ankle is compensable. No question about it. The best you have is a Nature and Extent argument. You aren't going to be able to deny the psyche portion of this outright. You will need a thorough investigation to determine the unlikely chance that the innocent bystander was neither innocent, nor a bystander. In that case, you'd be able to rule out the psyche.

In the mean time, you'll still be paying for the psyche treatment. In this sort of instance, it might be easier (and MUCH cheaper in the long run) to admit the psyche injury, as it pertains to the incident. Provide the IW with therapy, and likely, he'll resolve with limited disability.

I had a similar case in which the IW, who is a site supervisor for a contractor, witnessed the collapse of an elevator scaffold with 2 of his subordinates and an independent contractor left suspended around the 20th story of the building they were working on. The physical injuries to the three, thankfully, were minor. The Supervisor had about a month of sleepless nights recalling the episode, even though he was not physically injured.

I called his supervisor and spoke with her at length, and then spoke with him. We accepted the claim, and provided him with treatment. He was released from care in about 5 weeks after starting treatment. In total, about $1,500 was spent on the case. Food for thought.

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postscript2
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Friday February 27, 2009 9:42 PM

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Hi All:

I've had a few of these in "my" day, as a "C/A..."

First and foremost -- the "Security Guard," has a duty to protect and report any "suspicous activity..." It sounds like a total "AOE/COE," compensable claim...

The last case I dealt with involving a similar "incident," wasn't exactly the same. It involved an I/W who claimed that she was "robbed," while making a bank deposit. Lots of facts to this case that are not relevant to this one, except for the following:

My thought is that the bank, like most other banks have surveillance camera's outside, surrounding the premises... Now these cameras, as I understand from the investigators, are "roving/moving" cameras..." They film in my "lay terms," a picture of what goes on in the parking lot and in close proximity to the bank's door entrance. Since they "scan" to and fro--it's quite possible that the entire and/or parts of the incident were caught on film. And since the cameras are "scanning" they pick up bits pieces of what occurs in the parking lot.

It would likely show if the Security Guard was just checking out a "cool car," or if he/she was just "bored" and was somewhat negligent about what their job duties entailed... My last recollection regarding the job duties of a "Security Guard," was to survey the entire area surrounding the bank parking lot, adjacent area parking lots and entrances to and from the bank.

This for certain a "horrific" and most unfortunate accident. 3rd parties are going to be involved for certain!!! Take care of the workers' compensation case FIRST AND FOREMOST, as it's "exclusive remedy and a 'no fault' system," by and large. I would be willing to bet (Dah) that the civil recourse is going to involve "comparative and contributory negligence," regarding the I/W, the driver of the car and the aggreived family members of the child whom had his/her life taken away.

The sooner the "defense" and "applicant" obtain the surveillance tapes and police reports, the better!!! Please do not hesitate on this, as memories seem to fade; especially when several parties have been exposed to a situation such as this...

The police report and surveillance films from the bank are imperative for all parties!!! I cannot emphasize this enough!

God help all those whom were involved! I would, IMHO, opine that this was an extrordinary case and since the I/W was employed for over a year--the 6 month rule would not apply, for psyche... Another thing to consider is was this "Security Guard," a direct EE of the "bank," or a "contract EE???"

Again, I cannot emphasize this enough, no matter which party is involved: OBTAIN THE SURVEILLANCE TAPES, WITNESS STATEMENTS AND POLICE REPORTS "ASAP!"

So many parties to consider!!! Of course the "defense" can delay the claim--however, remember that the first $10k in medical is payable, while a clam is pending.

IMHO, "mitigate the damages" in the w/c case and let the 3rd party actions "stand alone." Again this is just my "opinion. As for the "defense," if would be pennywise and pound foolish not to resolve this ASAP. this is a case that could/would/will likely be tied up in civil court for years...

As a w/c rep, no matter what side--resolve now and this is one that I wouldn't even include a 3rd party C&R/settlement agreement upon. Help the I/W NOW and be done with it!!!

Good luck folks, such a sad situation!

Sincerely,

LCS


Edited: Friday February 27, 2009 at 9:51 PM by postscript2

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