Workers’ Comp May Not Be Best or the Only Remedy in Workplace Sexual Assaults

10.25.2017


By Jim Thompson

Sarasota, FL (WorkersCompensation.com) - Fallout from the massively publicized sexual assault allegations made against Hollywood producer Harvey Weinstein — perhaps most notably, the use of the #MeToo social media hashtag — indicates that sexual misconduct is a depressingly regular workplace occurrence.

However, questions of how — or even whether — injuries resulting from workplace sexual assaults are pursued through workers’ compensation claims is difficult to answer. In large part, that’s likely a result of victims not wanting to go into excruciating detail about the circumstances of such an injury, according to a representative of the California’s workers’ compensation system.

A very general idea of the level of violence in the American workplace, which doesn’t specifically separate sexual violence from other incidents, is available from the National Institute for Occupational Safety and Health (NIOSH).

According to the data, 15,980 workers in the private industry experienced trauma from nonfatal workplace violence in 2014, requiring some number of days away from work. Of those victims, 67 percent were female, and 23 percent required 31 or more days away from work to recover.

California is a case in point for the difficulty of definitively determining the extent of workplace sexual assault through any analysis of workers’ compensation claims. Peter Melton, a spokesman for the Division of Workers’ Compensation in California’s Department of Industrial Relations, told WorkersCompensation.com that while workers’ comp claims can certainly be filed in cases of workplace sexual assault, state officials and other interested parties might not necessarily be able to determine whether a specific claim was, in fact, filed as the result of a sexual assault.

The reason, Melton explained, is that workers’ comp claims use codes for different body part injuries, and may not include more specific information helpful to researchers and others interested in quantifying workplace sexual assaults. 

“Very few people are going to want to put unpleasant things in their case file,” Melton said.

And, Melton said, while it’s certain that any number of people, such as claims representatives, would know that a given incident involved injuries sustained in a sexual assault, “they would take care to be discrete” as the claim moved through the process from filing to resolution.

Illustrating the effects of that discretion, as well as the understandable reluctance of victims to provide excruciating details of a sexual assault, Melton said that in his 10 years in the Department of Industrial Relations, he hasn’t seen a single workers’ comp claim that could be specifically traced to a sexual assault.

There has been at least one attempt to research the extent of sexual assault in California workplaces through workers’ compensation claims records, Melton added, but that initiative was hobbled by the fact that those records weren’t specific enough to definitively tie a given claim to a sexual assault.

And while they aren’t exactly analogous to a sexual assault, other instances of workplace assaults in California can provide some insight into the special challenges of those sorts of claims, Melton noted.

In the wake of the 2015 mass workplace shooting at the Inland Regional Center in San Bernardino that left 14 people dead and 22 more people injured, a number of workers’ compensation claims were filed. Claims involved surgeries, significant recovery periods and post-trauma stress, and lawsuits, Melton said.

“Some of those folks have some pretty serious injuries,” he said. 

Robert P. Hartwig, an associate professor in the finance department in the Darla Moore School of Business at the University of South Carolina, and co-director of the school’s Center for Risk and Uncertainty Management, said injuries arising from sexual assaults in the workplace, whether by a coworker or customer, are compensable injuries in workers’ compensation programs across the United States. In some instances, though, when an employee has sexually assaulted another employee, the incident may be handled under the business’ employment practices liability insurance, Hartwig said.

In many states, workers’ compensation is the “exclusive remedy” for addressing an injured employee’s medical treatment and wage needs, according to Hartwig, a former CEO of the Insurance Information Institute. That doesn’t, though, preclude a worker from taking a case to court seeking compensation on issues outside of the bounds of workers’ compensation coverage, Hartwig said.

For example, he explained, a worker dealing with mental anguish in the wake of a sexual attack, or who may face adverse effects on their career as a result of an attack, could file a lawsuit seeking punitive damages in connection with those circumstances.

Complicating the legal environment regarding workplace sexual assaults is the fact that a workers’ injuries may be the result of a crime that will put issues surrounding the incident into the criminal court system, Hartwig added. 

And, he said, it’s possible that the circumstances of a sexual assault will run afoul of federal workplace regulations, placing the issue in the federal court system.

The best strategy for an injured worker seeking compensation for the consequences of a workplace sexual assault — whether through workers’ compensation, or a lawsuit, or a combination of the two approaches — is to consult an attorney, Hartwig said.

Attorneys will often focus their efforts beyond workers’ compensation toward other targets where “they see deep pockets” that might provide an injured worker with financial resources beyond those needed for medical treatment and wage replacement, Hartwig explained.

As far as employers are concerned, when a workplace sexual assault is reported, “the general rule is that workers’ compensation should respond,” Hartwig said, meaning that whatever other actions are taking place in terms of seeking redress for the assault, the employer should ensure that a workers’ compensation claim is part of the mix.

In the end, Hartwig said, workers’ compensation will be “possibly a part” of the resources provided to help a sexual assault victim, “but probably a small part.”

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