(Transcript)

Cindy Speaker:  Good afternoon. My name is Cindy Speaker and I have, with me today, as my guest, Attorney Bill Kovalcik, of Michael. J O’Connor and Associates. Bill is a Workers’ Compensation Attorney, who’s going to talk with us about a very, very timely topic. That is violence in the workplace and how Workers’ Compensation benefits can sometimes interact with that. Bill, thanks for being with us today.

Bill Kovalcik:   My pleasure Cindy, always good to see you and to talk about this area of the law.

Cindy Speaker:  Yeah and you as well. Well, I’ve had questions, in light of some of the horrible mass shootings, and things like that, that have gone on. so let’s start off by looking at that type of a scenario. If a mass shooting were to occur, and unfortunately it has, in Pennsylvania, what are the implications for employees?

Bill Kovalcik:  Right. There are many implications. But one of the things, that occurred to me, is that when we hear news of these mass shootings, it’s always from the perspective of, oh, what a tragedy it was, for lives to be lost. Often, young lives. We hear about gun control and everything, but what had occurred to me is that, almost all of these places, where these shootings happen, are workplaces. There are people, who were there doing their job, and it’s interrupted by this horrible violence.

So they obviously have rights unique to an employee, in Pennsylvania. Rights that the other people, who were not there working, don’t have.

Cindy Speaker:  Okay, yeah.

Bill Kovalcik:  I thought about that, originally. Of course, if it’s, say a school, or a hospital, or a church, and you have people who work there, teachers, doctors, the minister, the janitor, the security guard, these are all people who are on the job. Now, generally, just as a general statement of the law is, and there’s going to be some exceptions, and we’ll get to that later. But, if violence erupts at your workplace, and you are either injured, or killed, you’re covered by the Workers’ Comp Act, in general.

Now, what exactly does that mean? As far as injuries are concerned, obviously, some people may get shot and not die, and they may then be unable to work. That’s the physical injury. Of course, that’s the same as any other work injury that disables you. Now, if you die, and I’ll get into this later, there’s a whole section of the workers comp act, on death benefits and what the individuals’ family is entitled to, assuming that they have a family.

One of the things that happens too, when I think about these, when we talk about these terrible shootings, and violence in the workplace. Even if it isn’t a mass shooting, any type of violence in the workplace that involves firearms, often leaves scars on the people, that are not physical, that are mental. Post-traumatic stress disorder, things like that. It’s very common. It’s like being in a war.

Those type of non physical injuries could potentially be covered, but there are, again, exceptions. One of the things I want to talk about is that. These are what are called mental injuries. You suffer a mental stress, i.e., you’re somewhere in a public place, that there’s a shootout, and you suffer a mental injury, as a result. You didn’t get shot, but you’re stressed out by the whole thing, and you seek treatment.

Now, one of the things, that’s always been in the Pennsylvania Workers’ Comp Act, it’s a separate threshold for mental injuries. Those of us in the business don’t really believe it’s fair, but to prove a mental injury, not only do you have to have corroboration of your symptomatology, or of the problems that brought it on, but you also have to prove what is called an abnormal working condition. So the interesting thing here is, in the context say of a school, it is abnormal for a teacher to have to face gunfire.

I would think the court would find that if a teacher, or a janitor, became disabled mentally, due to having to be in a shootout, they would be entitled to benefits, as they can prove that is an abnormal working condition. However, it’s specifically been held, in Pennsylvania, that police officers who face fire, do not suffer an abnormal working condition. That’s normal. That’s part of the job.

So you can envision a situation, where there’s an armed police officer, at a school, who’s involved in a shooting, he’s not entitled to benefits for mental stress, but the teacher would be. so that’s one of the things that occurred to me. Now, this standard, a lot of us in this business, think it is wrong. One of my colleagues told me recently that he is contesting this the whole way of the Supreme Court.

He has a case where an individual had to witness a horrible event, in the course of her employment, as a social worker, whatever, and she became mentally disabled. But she didn’t get benefits, because it was not an abnormal working condition. He’s saying that, that requirement is unconstitutional. Hopefully, maybe later this year, we’ll hear more about that case.

Cindy Speaker: Yeah, I hope so.

Bill Kovalcik: And if that changes the law-

Cindy Speaker: That’s awful.

Bill Kovalcik: That’ll help a lot of people. So anyway, let’s get back to, what happens if, in fact, employees are killed at work? Their surviving family members are entitled to benefits. Now, one of the problems, with the Pennsylvania Workers’ Comp Act, is that you have to prove that you have dependents. So if you’re married, that individual could get the benefits. If you have children, who are dependent upon you, they could get it.

If you have children who are in loco parentis, which means you’re acting in the role of a parent for them. Maybe they’re not your children, maybe you’re just watching your brother’s children, or whatever. That could be. there could be other people, who are not even related to you, who you are taking care of, who might be entitled to benefits. Sometimes people’s parents are entitled to benefits, because they are also dependent on them.

It’s not automatic. So if you have siblings, or you have parents that survive you, but no wife and kids, those siblings, and parents, don’t necessarily get the benefits automatically. They have to prove dependency and that’s hard, so that’s kind of a gap. There are people, and I’ve had these cases, people die, in the course of their employment, and no one gets any benefits, because there are no dependents.

That’s one of the things to look out for, in Pennsylvania. It doesn’t absolutely cover everyone.

Cindy Speaker: Yeah, yeah.

Bill Kovalcik:  So, the other thing-

Cindy Speaker: Well, that’s mass shootings, what about if there’s a single assailant?

Bill Kovalcik: Oh, right. We’re talking about this in terms of some kind of mass shooting, or involving a lot of people. There’s a lot of violence, in the workplace, that doesn’t involve a lot of people. It involves maybe one person against another. You get that a lot. It could be as simple as two guys, at a factory, get in a fist fight. Okay?

Cindy Speaker: Yeah.

Bill Kovalcik: Now, if one of these guys gets injured, whether he gets benefits is dependent upon a lot of things. One of the things, that’s very important here, is the personal animus defense. Personal animus means you have something personal against another person. For instance, you work at a particular place and you have a conflict with an individual. That individual is ultimately fired, because you pushed management to get rid of him, and he resents it. Two days later, he comes back in with a gun, and he shoots you, and only you. Is that death compensable, is the question.

The answer is yes, because the reason he shot you, and this is weird, you have to want to cover this, to get the guys’ family benefits. Why did he shoot him? He shot him because of the job, because he lost his job, because this individual complained to management. That would be a compensable death.

However, say, a man comes in with a gun, and shoots another man, at a factory, because he just found out that man is having an affair with his wife. That’s personal animus and that is not a work-related death.

Cindy Speaker:  Oh, wow.

Bill Kovalcik:  So while it seems unfair, the insurance company can defend it, if they can establish that the death was related to something personal. Now, this also occurred to me that this would come up even in mass shootings. Because often, one person will be violent against another, because they just hate the person, or it’s because they have a dispute over how to do the job, or something. That depends on whether it’s work related or not.

But what about in these school shootings? Say, for instance, or a lot of these school, or church, or public shootings, are revenge oriented. So you get someone, “Oh, he used to belong to the church.” And that was that guy, down in Texas, I think. He had some connection to the church. He didn’t like-

Cindy Speaker:  Right. The mother-in-law went to that church.

Bill Kovalcik:  Yeah and he had a dispute with her. So he goes in there and if he kills the pastor, based on revenge, on some personal matter, and if that was in Pennsylvania, there could be a defense. There could be no benefits, because there was just personal and animus. Say, for instance, as a contrast, that shooting in Las Vegas. If that was in Pennsylvania, I don’t know if they ever uncovered any motivation for that.

If you don’t uncover a motivation, it’s just random killing. If, say, there’s a roadie, for a band, who got shot dead during that assault, he would be entitled to workers comp, because there was no motive and, in fact, the shooter wouldn’t have even known him. It was a random shooting. So the motivation-

Cindy Speaker: Well, can I ask you a question?

Bill Kovalcik:  Well, yeah, go ahead.

Cindy Speaker:  Let me ask you a question. So if you take the shooting, in Texas, where the mother-in-law was a bit of the reason for the shooting, because of the connection, that would be the personal animus. But if the pastor, and I don’t remember who all actually died, but let’s say the pastor dies and the mother-in-law dies. Is there a difference in the benefits that go to the family, based on the personal animus connected with the mother-in-law, but not with the pastor?

Bill Kovalcik: Exactly. Exactly. This is the kind of case that would end up in court. There would be all kinds of testimony about what the motivation was. Did he know the pastor? Did he have resent for … Was he shooting up the church because of the function of the church? Does that make it work related?

There could be all kinds of … It could really get interesting. What I think about even school shootings too, often, we’ll get a student coming to a school, and shoot a teacher, who he didn’t like. Now, what if that happened? Now, why didn’t he like that teacher? We’d have to get into all that.

What if he shot the football coach because he cut him from the team? Well, that seems work related. That’s a job of a coach. But what if he just didn’t like a particular class and he shot it up? You see, all this, with motivation, becomes relevant when we’re talking about workplace violence.

Cindy Speaker: What if it’s an employee that does the shooting?

Bill Kovalcik:  Right. That’s another interesting thing. Right, so that could … Let’s just envision a situation, where an employee, and this is another thing that I thought of, comes into the workplace, and commits violence? What if that employee, either is injured during the course of that, or commits suicide?

If, during the course of a workday, one employee becomes violent. Say, for instance, someone defends themselves and injures, or kills, that employee? Is that employee-assailant entitled to any type of benefits? Now, normally, we’d say, “Of course not. Why would they be?” The answer usually is yes. Because just because you killed yourself in the course of your employment, doesn’t mean your widow would necessarily have the right to sue for workers comp benefits.

Because there is a specific exclusion, in the Pennsylvania Workers’ Comp Act, for suicide. Also, there’s an exclusion for a violation of the law. It doesn’t usually come up, but say, for instance, an individual is driving, in the course of his employment. He’s going 90 miles an hour, in a 50 mile per hour speed zone, and he crashes.

His violation of the law may have taken his life and he can’t get benefits. Same thing with a shooter. You come in and violate the law, and the security guard puts you down, you can’t then get Workers’ Comp benefits, because you initiated it with a violation of the law, so that’s another part of it.

Now, when we talk about these mass shootings, and wonder what’s the redress for these people? Obviously, if you work there, Pennsylvania has Workers’ Comp coverage. But, you know, there’s all types of other, and we’ve talked about this before, third party liability. So people who were injured, in the course of their employment, may also sue the gun manufacturers. They may sue the police.

In that thing, in Parkland, apparently, the police, and the FBI, had prior knowledge of the violent tendencies of this individual. They’re going to be subject to lawsuits. So if an individual has Workers’ Comp, and they sue, again, that comes into play. Those benefits coordinate, there’s subrogation back and forth, and when terrible things like this happen, believe me, there are people who will look for a guilty party to sue. That always happens.

 

Cindy Speaker:   What if it’s a hostile act? What if 9/11 were to happen again?

Bill Kovalcik:  Right.

Cindy Speaker: What are the implications there?

Bill Kovalcik: Right, exactly. Some of these mass shootings could be considered terrorism. Say, for instance, we think about there was a workplace, in San Bernardino, that was shot up, 14 people died. It was by jihadists, so that was classified as terrorism, by the federal government. Now, what about those people who were at the workplace, are they entitled to the same benefits?

Section 301, of the Pennsylvania Workers’ Comp Act, provides that, no benefits shall be paid to victims, who are injured or killed during a hostile act, against the United States, by enemy forces, or sabotage. Now, what exactly does this mean? I don’t believe it’s ever been tested. Obviously, it means, if there’s a war on the home front, and the Russians invade Pennsylvania, and everybody who’s at work gets killed, they don’t all get workers comp benefits, because it was an act of war.

But on a smaller scale, on a smaller scale, what does it mean? If there’s just a terrorist act, at your workplace. Can there be a defense, that this was a hostile act, against the peace and dignity of the United States? As opposed to just a violent act directed at you?

I don’t know the answer to that, but I find it interesting. Because if we had, God forbid, a terrorist act, at a large workplace. say for instance, machine gun fire at a plant, by jihadists, or people who were proclaiming that they were terrorists, they were Isis, they were Al-Qaeda, whatever, and they just randomly killed people who were working. Would they be entitled for death benefits, would their family be entitled?

Cindy Speaker:  Right, yeah.

Bill Kovalcik: I think there’s a possibility that the insurance company, for that employer, could defend it. Based on it’s a sabotage against the United States. However, I think if they did, there would be so much public outcry, that they might just pay it anyway, because nobody want to see families suffer from this sort of thing.

I would also point out that, when 9/11 happened, the Twin Towers had all these people at work. These people were all at work. I think that the same loophole, in Pennsylvania, existed in New York at the time, that would prevent them from getting Workers’ Comp benefits. What happened there, the federal government created a fund. It still exists to this day.

The 9/11 fund, if you were afflicted by that in any away, injured, family member killed, you can apply to that fund for benefits, because there is a gap. There is a gap. When you think about the firefighters, and everything, who were up there. There’s insurance for them, and all that, I know. But if Workers’ Comp was denied, there’s a fund for them.

Cindy Speaker:  You know, that’s very interesting. So 9/11, because of the fund that was set up, those people, and their family members, if they were deceased, we covered. But if it had been litigated, just on the basis of Workers’ Comp, what you’re saying is, possible, because of the loophole-

Bill Kovalcik: Yes.

Cindy Speaker:  There may not have been compensation?

Bill Kovalcik:  Exactly. If that was in Pennsylvania, with the state of our act, the way it is, I could see it being a defense. Because they called it an act of War, you know the government did. So there you go, is that a defense? It may be.

Cindy Speaker:  Boy that’s really, that’s really something.

Bill Kovalcik:  I know.

Cindy Speaker:  What about sexual assault in the workplace?

Bill Kovalcik:  Right, and again, here’s another timely topic. We hear about it all the time. Certainly, in the movie industry.

Cindy Speaker:   That’s for sure.

Bill Kovalcik:   Yes, so what if you’re working on a movie, and Harvey Weinstein wants you to come up to his room? And you know, the whole problem with that?

Cindy Speaker:  Yeah, yeah.

Bill Kovalcik:  These people they end up with physical injuries, or psychological injuries, or both.

Cindy Speaker:   All these gymnasts.

Bill Kovalcik:  And they’re still suffering from it, years later. If it happened in the course of that work, would they be entitled to some type? But again, here’s what we’re talking about, the difference between sexual harassment, and sexual assault. A physical assault, rape, that’s going to be a work injury. Unless, and I can’t imagine this happening, they’re able to prove that the rape was the result of some, again, personal animus. You can see how we can get into this?

Now, why does someone rape another person? Is it personal? Is it work related? Is it a power thing? I don’t know and I wouldn’t even want to get in the middle of it. but, I would think that if a woman was raped by a co-employee, she’d be entitled to benefits for everything she suffered.

Cindy Speaker:  I would hope so.

Bill Kovalcik:  But I do anticipate there might be some resistance.

Cindy Speaker: Yeah, yeah.

Bill Kovalcik: There is resistance on sexual harassment. We see it all the time. Because, not only do you have to prove that sexual harassment is present in the workplace, you have to prove that it’s an abnormal working condition, and your psychological problems are related to that harassment. Sometimes it is and sometimes it isn’t. Depending on the severity of it, how it’s directed, the credibility of the people.

Some people are overly sensitive. one dirty joke overheard, over a period of six months, is probably not enough. Direct harassment, attempting to get a woman to concede to your sexual wishes, probably is. so there’s a whole spectrum here, but again, that’s violence in the workplace. That is, technically, covered by the Workers’ Comp Act.

Cindy Speaker: Wow, what a topic. I mean, it’s interesting, but it’s also devastating to think about. Some of the things that can happen and the idea that, potentially, people are not covered with any kind of benefits, because of various types of loopholes. Another reason to get an attorney involved to sort this out.

Bill Kovalcik:  Absolutely. I agree.

Cindy Speaker: It’s so complicated.

Bill Kovalcik: Yeah it is. Right. Sure.

Cindy Speaker: So complicated. Let’s turn our attention for a moment. Any new developments in Workers’ Compensation law?

Bill Kovalcik: Yes. I’ve talked about this before, and it’s basically the evidence based medicine formulary, this is the bill that has passed in other states. Pennsylvania is now trying. It’s a Republican sponsored senate bill. Senate Bill 936.

For anyone who’s interested, and you want to contact your state legislator, it’s Senate Bill 936, that seeks to take discretion out of injured workers’ doctors hands, and put it into insurance companies. Such that the treatment you get, the pharmaceutical treatment, will be controlled by a formula. The insurance company, ultimately, is trying to save money on this. They say that they’re trying to avoid opioid addiction, whatever, but it is a cost saving move.

Those of us, who represent injured workers, are against it. As far as a call to action is concerned, I would say, anyone who’s interested, should contact your local legislator, in Pennsylvania. Now, this came up, a couple of weeks ago, for a vote and it was 98 to 98.

Cindy Speaker:  Oh, wow.

Bill Kovalcik:  So it did not pass. But I’m told that it’s going to be up for reconsideration, so there’s still time to prevent this. This is just another example of chipping away at the rights of injured workers, in Pennsylvania. These little amendments, like this, should be resisted.

Cindy Speaker:  Yeah, yeah, yeah. Interesting.

 

 

Bill Kovalcik:  There’s another bill, that’s pending right now. We have something, in Pennsylvania, called the Uninsured Employers Guarantee Fund. That is funded, by insurance companies, to cover employers who have no insurance. So if you get injured, working for them, there’s some fund for you.

But that fund is depleted and they’re asking for the state government to provide funds. Now, in turn for that, the state government wants to put some other things in the law, to limit these claims, which could be difficult. Because a lot of my clients, who do work for uninsured employers, are kind of out of luck. They need some type of help.

But that’s pending, now too. One thing, when I was researching this, what I realized is, I saw a statistic from a national organization, that I’m involved in, that said, of small businesses, in the United States, only one in five has Workers’ Comp insurance.

Cindy Speaker:  Oh my word.

Bill Kovalcik:  When we start talking about small businesses, we might be talking about mom-and-pop’s. If you’re just self-employed, you don’t have to cover yourself, you could opt out of that. But if you’re small, and you have a couple employees, the law requires you to cover them, but a lot of people violate that.

It’s becoming a problem in Pennsylvania. There’s more of these claims, there’s less money. Hopefully, the legislature will address it.

Cindy Speaker:  Yeah. Yeah.

Bill Kovalcik: Mm-hmm (affirmative).

Cindy Speaker:  This has been fascinating Bill. Honestly, I can’t wait to talk to you again. Really interesting stuff. So timely.

Bill Kovalcik:  Excellent.

Cindy Speaker:  Yeah, thank you so much, for your research.

Bill Kovalcik:  Mm-hmm (affirmative).

Cindy Speaker:  And sharing your knowledge with us. Bill, if someone has specific questions, how can they reach you?

Bill Kovalcik:  Well, we have an 800 number, that will reach our main office, and you can ask for a consultation for one of our attorneys. That means Workers’ Comp, social security, motor vehicle, whatever you have, that we cover. It’s 1-800-518-4LAW, 4-L-A-W. That’s our 800 number. You could always find us on the web, at OConnorLaw.com.

Cindy Speaker: Excellent. Bill, thanks so much for your time today.

Bill Kovalcik:  Sure. Good to see you.

Cindy Speaker: You too. To those of you watching, I’m sure some of you have questions. Please put them on this page, we’ll get them answered for you. Just put them in the comments section. Thanks everybody, for being with us. Have a great day.

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