Employment & Labor Law for Public Safety Agencies

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Workers' Compensation - Exclusive Remedy

     Three injured Laotian correctional officers, filed suit against the county under the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq., claiming that they were allegedly subjected to racial and national origin discrimination, harassment and retaliation, while simultaneously pursuing their workers' compensation remedies for alleged psychiatric injuries arising from those claims. An intermediate state appeals court upheld summary judgment for the county on the FEHA claims. While workers' compensation was not plaintiffs’ exclusive remedy for their claims, once they elected to pursue that remedy to a final, adverse judgment instead of insisting on the primacy of their rights under the FEHA, the WCAB that decides workers’ comp claims became the exclusive forum to recover for their alleged injuries. Ly v. County of Fresno, #F072351, 2017 Cal. App. Unpub. Lexis 6321, 2017 WL 4081831.

     Two Massachusetts state statutes grant additional compensation to correctional employees who sustain bodily injury as a result of inmate violence during the course of his duties. “Bodily injury” is defined as that which results in physical injury. A correction officer sued the sheriff, the sheriff’s department, and the state to obtain compensation under the statutes. His symptoms were an accelerated heart rate accompanied by light-headedness and difficulty breathing. The state’s highest court affirmed the judgment of the trial court, holding that while the plaintiff may well have sustained an injury, he failed to show that he had a bodily injury within the meaning of the statutes entitling him to additional compensation. Modica v. Sheriff of Suffolk County, #SJC-12201, 477 Mass. 102, 2017 Mass. Lexis 346.

     An employee of a water district was the victim of a staged mock robbery planned by her co-workers. She had not been told of the plan, handed over the money, ad later received treatment for psychiatric injury. She sued the employer and four co-employees for assault and intentional infliction of emotional distress, and a jury awarded her $360,000 in damages. Overturning an order granting a new trial, a California intermediate appeals court acknowledged that the usual rule is that workers' compensation is the exclusive remedy for injuries arising out of and in the course of employment arising out of work, but in this case, the complaint did not concede that the case was within the Workers' Compensation Act. The evidence was able to support a finding that the work was not a contributing cause of the injury, and a theory that they fell within the assault exception to the workers' compensation exclusivity rule. Lee v. West Kern Water Dist., #F070772, 2016 Cal. App. Lexis 985, 81 Cal. Comp. Cases 966.
     A former city police officer claimed that exposure to asbestos during his employment caused his diagnosis of mesothelioma. The officer and his wife sought permission to serve a late notice of claim on the city. The city argued, in opposition, that leave should be denied because N.Y. Gen. Mun. Law 207-c provides the exclusive remedy for the alleged work-related remedies. At issue on appeal was whether a police officer who is entitled to receive benefits under section 207-c for a duty-related injury is barred from bringing a claim against his or her employer under N.Y. Gen. Mun. Law 205-e. The highest court in New York held that section 205-e does not bar a lawsuit by a police officer who suffers a line-of-duty injury caused by the employer’s statutory or regulatory violations when that police officer is employed by a municipality that has elected not to provide coverage pursuant to the Workers’ Compensation Law. Diegelman v. City of Buffalo, #168, 2016 NY Slip Op 07817, 2016 N.Y. Lexis 3532.

     A correctional officer was injured on the prison grounds when he fell on an allegedly defective concrete step while walking to work from an apartment he rented on the premises. While he received workers' compensation for the injury, he then filed a premises liability lawsuit. Summary judgment for the state was reversed. A factual determination was required as to whether he was acting in the course of his employment at the time of the injury. He presented evidence that he was not required to live on the premises as a condition of employment and the mere fact that he was injured on property owned by his employer did not necessarily bar his personal injury lawsuit. Wright v. State of California, #A139034, 2015 Cal. App. Lexis 91.
      The Washington State Patrol appealed a trial court's denial of its motion for summary judgment in a lawsuit brought by a trooper for alleged deliberately intentional infliction of "certain injury" from being shot with a Taser in the dart mode during training. An intermediate state appeals court, finding that the plaintiff had presented a genuine issue of material fact on his claim that the defendant intentionally inflicted "certain injury," upheld the denial of summary judgment and remanded the case for trial. The Taser exposure caused the plaintiff instant temporary pain, discomfort, trouble breathing, and incapacitation. He was later diagnosed with a fracture in his vertebrae and a "bulged disc." The court said that the description, by the person responsible for developing the training program, of the Taser's "most typical effect's, together with the Taser manufacturer's warning that Taser probes cause "wounds," were sufficient evidence of "certain injury" to create a material issue of fact as to that claim allowing a lawsuit despite the providing of workers' compensation benefits. Under state law, workers' compensation immunity from an injury lawsuit does not apply if an employer knows of and willfully disregarded certain injury. This exception does not depend, the court ruled, on the severity of the initial injury that an employer deliberately causes in disregard of its knowledge that its action will always produce this "certain injury." Whether the defendant willfully disregarded that injury would occur was a question of fact for the factfinder. Taken in the light most favorable to the plaintiff, the evidence submitted could be interpreted as showing that the employer knew that the mandatory Taser training would certainly cause the injuries of the probes inflicting wounds and the exposure to an electrical current, yet disregarded this by still requiring the training. Michelbrink v. Wash. State Patrol, #44035-1-II, 2014 Wash. App. Lexis 973.
    Wisconsin appellate court holds that workers' compensation is not the exclusive remedy for a former county employee, who brought a defamation lawsuit based on statements that were made after his resignation. Anderson v. Hebert, #2010AP1992, 2011 Wisc. App. Lexis 203.
     Workers' Comp is the exclusive remedy for jail nurses, who were held hostage by inmates, including one who was shot by a police officer during the recapture of the inmates. Hunt v. CCA, #1D09-1260, 2010 Fla. App. Lexis 6661 (1st Dist.).
     Workers' Comp is the exclusive remedy for a corrections officer who was assaulted by an inmate. Abrams v. Dept. of Reh. & Corr., #2006-04679, 2010-Ohio-1530, 2010 Ohio Misc. Lexis 30 (Ohio Ct. Cl.).
    California appellate court rejects a damages claim for emotional distress arising from allegedly retaliatory treatment of the plaintiff, a county firefighter. In California, injuries sustained and arising out of the course of employment are generally subject to workers’ compensation procedures, an exclusive remedy. “The exclusive remedy applies even when the damages result from intentional conduct by the employer that is a normal part of employment relationships, and even though such conduct may be described as egregious, harassment, manifestly unfair, or intended to cause emotional distress.”  Mueller v. County of L.A., #B201171, 2009 Cal. App. Lexis 1335 (2d Dist.), relying on Shoemaker v. Myers, 52 Cal.3d (1990) and Cole v. Fair Oaks Fire Prot. Dist., 43 Cal.3d 148 (1987).
     Federal court concludes that unpaid volunteer firefighters in Louisiana are not covered by workers' compensation. Dillon v. Washington Parish Fire Dist., #04-1639, 2006 U.S. Dist. Lexis 63583 (E.D. La. 2006). {N/R}
     Florida Supreme Court rules that the state's Worker's Comp. law did not bar a wrongful death suit filed by the family of a police crossing guard who was fatally injured because of a faulty county traffic signal. Although the county was the employer of the deceased and the defendants, they worked in different departments, at different locations, and had different job duties. Aravena v. Miami-Dade County, #SC04-2349, 2006 Fla. Lexis 556 (Fla. 2006). {N/R}
     Who is liable for overtime payments to injured officers that are treated at the hospital? The city or the Workers' Comp. plan? Arbitrator finds this city had an established past practice of paying salaries to officers undergoing treatment, and is enforceable even if the payments might have been made on an erroneous legal assumption. Vil. of Romeoville and Metrop. Alliance of Police, 121 LA (BNA) 1797, FMCS #05/00563 (Wolff, 2006). [2006 FP May]
     California appeals court holds that an employee can recover damages for emotional distress arising from an unlawful act of discrimination; the claim is not barred by workers' compensation laws. Yanowitz v. L'Oreal, #A095474, 2003 Cal. App. Lexis 342 (1st Dist. 2003). [2003 FP May]
     The fact that a firefighter died while performing mutual aid duties did not allow his widow the right to sue the agencies that requested assistance. The requesting and responding agencies had not signed a formal mutual aid agreement, which would have permitted a wrongful death action. Hauber v. Yakima County, #71618-8, 56 P.3d 559, 2002 Wash. Lexis 666 (Wash. 2002). [2003 FP Feb]
     Injured N.C. firefighter could simultaneously recover under the Worker's Comp. Act and sue an instructor for willful and wantonly negligent conduct. Seymour v. Lenoir County, #COA01-972, 567 S.E.2d 799, 2002 N.C. App. Lexis 914 (2002). [2003 FP Jan]
     Louisiana affirms an over-million dollar award to a corrections officer who was injured during a baton training exercise. Cole v. State, #01-C-2123, 2002 La. Lexis 2454 (2002). [2002 FP Dec]
     California appellate court holds that a workers comp. claim is the exclusive remedy for an off-duty employee, who was injured in her employer's workplace. Wright v. Beverly Fabrics, #F035445, 95 Cal. App. 4th 346, 115 Cal.Rptr.2d 503, 02 C.D.O.S. 529, 2002 Cal.App. Lexis 448 (5th Dist. Cal. App.). [N/R]
     Massachusetts comp. laws barred the claims of a police cadet who quit the academy because of untreated illness, hazing and rigorous regimen. Perkins v. Comm. of Mass., #98-P-1988, 52 Mass. App.Ct. 175, 752 N.E.2d 761, 2001 Mass. App. Lexis 745. [2001 FP 174-5]
     Connecticut rejects a worker's damage suit for emotional trauma, suffered as a consequence of being forced to perform oral sex on her superior. The act also involved a physical assault and a workers' comp. claim was an exclusive remedy. Driscoll v. GNC, #SC-16090, 252 Conn. 215, 2000 Conn. Lexis 34, 16 IER Cases (BNA) 587. [2000 FP 126]
     Utah holds that a public employer can be liable for an assault by one worker on another, due to the intentional character of the act. Clark v. Pangan, #981694, 2000 UT 37, 2000 Utah Lexis 44, 16 IER Cases (BNA) 259. {N/R}
     R.I. high court allows sexually harassed public employees to collect worker's comp. benefits and also sue the employing entity for damages. The amount of comp. benefits paid for loss of earning capacity must be subtracted from any damage award later obtained under employment discrimination laws. Folan v. St. of Rhode Island, #97-274, 723 A.2d 287, 1999 R.I. Lexis 24. [1999 FP 62]
     Workers' comp. law did not preclude a Sec. 1983 claim, brought by the widow of a police officer that was fatally shot by another, during a SWAT entry. Jensen v. City of Oxnard, #97-55936, 145 F.3d 1078, 1998 U.S. App. Lexis 10589 (9th Cir.); cert. den. 1998 U.S. Lexis 7596. [1998 LR 315:42]
     Federal judge dismisses a suit by brought by the father of an officer who killed himself, asking damages from the police chief. There was no evidence the chief knew of the officer's suicidal tendencies and workers' comp. laws provide an exclusive remedy. Hanrahan v. City of Norwich, 959 F.Supp. 118 (D.Conn. 1997). {N/R}
     Police officer could sue his city for intentionally inflicted injuries; workers' comp. does not bar intentional acts. Santmyer v. City of Syracuse, 654 N.Y.S.2d 547 (A.D. 1997). [1997 FP 174]
     California appellate court absolves public training facilities from all liability due to negligent operations; student was injured during a hostage-taking simulation. Soto v. California, 1997 Cal.App. Lexis 539, 65 Cal.Rptr.2d 11. [1997 FP 142]
     Rhode Island Supreme Court rejects suit by injured sergeant that his department made him a target by wearing a supervisor's white shirt, and failing to provide him with riot gear. Kaya v. Partington, 681 A.2d 256 (R.I. 1996). [1997 FP 94]
     Wisconsin says you can't sue your employer if it negligently releases your home address and phone number and you are victimized by a third person. Workers Comp is the sole remedy. Weiss v. City of Milwaukee, 559 N.W.2d 588 (Wis. 1997). [1997 FP 78]
     State anti-discrimination and worker's comp laws prevented a damage suit, brought by an ex-officer who was psychologically harassed by fellow officers. Choroszy v. Wentworth, 915 F.Supp. 446 (D.Mass. 1996). [1996 FP 156]
     NY's W/C law precluded a suit against employer for negligent retention & supervision; sexual harassment claim. Persaud v. S. Axelrod Co., 69 FEP Cases (BNA) 1371 (S.D.N.Y. 1996). {N/R}
     Federal court dismisses employee's suit for false imprisonment and assault by the employer's security force. Workers' Comp. is the sole remedy. Keller v. Dalton, 1996 U.S.Dist. Lexis 842 (E.D.Pa.). [1996 FP 110]
     Police officer, who was injured from a piece of concrete which fell off a highway bridge, could not recover against the city for its negligence; compensation laws provided his sole remedy, because officer was on-duty when injured. Fligelman v. City of Chicago, 657 N.E.2d 24, 1995 Ill.App. Lexis 781. {N/R}
     The exclusive remedy provisions of compensation laws do not bar an employee's claim the employer failed to accommodate a physical disability resulting from on-the-job injuries. Goodman v. Boeing, 877 P.2d 703 (Wash.App. 1994). {N/R}
     W.C. laws do not prevent a suit for damages by disabled workers against an employer for ADA violations. Wood v. Alameda Co., 875 F.Supp. 659, 4 AD Cases 43 (N.D.Cal. 1995). {N/R}
     W.C. claims are the exclusive remedy for police employees injured by toxic fumes caused by roof repairs. Digliani v. City of Fort Collins, 873 P.2d 4, 1993 Colo.App. Lexis 220. [1994 FP 14-15]
     Workers' Comp. an exclusive remedy. Officer who was shot in the eye by another officer cannot sue the shooter and his employer. Bustamante v. Tuliano, 248 N.J.Super. 492, 591 A.2d 694, 1991 N.J. Super. Lexis 170. [1992 FP 94]
     Worker's Comp. laws did not bar a damage suit filed by a sergeant against his chief for alleged harassment. King v. Brooks, 5 IER Cases (BNA) 65 (Alaska, 1990).
     Illinois appellate court allows employee to sue for the intentional infliction of emotional distress; workers' comp. laws do not preclude such suits. Johnson v. Federal Reserve Bank of Chicago, 199 Ill. App.3d 427, 557 N.E.2d 328 (1990).
     California holds that W.C. law prevents an employee's suit against his employer for the negligent infliction of emotional distress. Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 729 P.2d 743 (1987).
     Workers' comp. laws provide the exclusive remedy for employer-caused harassment; suit for damages dismissed. Valenquela v. State, 240 Cal.Rptr. 45 (App. 1987).
     Firefighter entitled to workers' comp for total permanent disability could not also file lawsuit against employer and fellow employee for emotional distress. Cole v. Fair Oaks Fire Protection District, 233 Cal.Rptr. 308, 729 P.2d 743 (Cal. 1987).
     Prison officer who was attacked by an inmate failed to raise a constitutional injury, and did not overcome the exclusivity provision of the D.C. worker's comp. laws. Washington v. Dist. of Col., 256 U.S. App. D.C. 84, 802 F.2d 1478 at 1481 (D.C. Cir. 1986). {N/R}
     Workers' comp. rule against suing fellow employees includes those in other departments working on "joint venture". Berger v. Mead, 338 N.W.2d 919 (Mich. App. 1983).
     Connecticut allows one officer to sue another for injuries sustained from reckless driving. Bowrys v. Santanella, 39 Conn. Sup. 102, 470 A.2d 1245 (1983).
     Comp' law is exclusive remedy; suit against fellow employee disallowed. Keogh v. City of Bridgeport, 187 Conn. 53, 444 A.2d 225 (1982).
     One employee cannot sue another employee for his injuries; worker's compensation sole remedy. Malone v. Jacobs, 450 N.Y.S.2d 885 (A.D. 1992).
     New York abolishes the "fellow servant" rule, thus allowing damage suits for injuries caused by fellow employees. Buckley v. City of New York, 56 N.Y.2d 300, 437 N.E.2d 1088 (1982). Note: see Malone case above; state law may have changed since Buckley.
     Exclusive remedy against a municipality: Goebel v. City of Cedar Rapids, 267 N.W.2d 388 (Iowa, 1978).

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