Black Friday Body Slam
With Thanksgiving comes Black Friday. Over this past weekend I was watching these clips on Youtube of Black Friday Madness. One in particular was particularly brutal. It depicts what appears to be a shopper slamming a Kmart employee into shelving. I believe the Kmart employee broke his hip in the incident.
I thought to myself is this a compensable work injury?
- happened at work? yes, assuming the Kmart vest wearing man was working at Kmart and not some weirdo wearing a Kmart vest while shopping at Walmart.
- Not an idiopathic injury? No, idiopathic essentially means you are walking down a hall and you pass out/fall onto the ground for no apparent reason. You didn’t trip over a rug, or something on the ground. Clearly here the kmart worker was body slammed by some crazy shopper.
- Is there an exception that applies that would make this not a compensable work injury: not Horseplay, not frolic/detour, going/coming rule doesn’t apply, probably not intoxicated due to drugs/alcohol, obviously Fight Exception may apply.
In the Ohio Workers Comp, Work Injury world if you get injured while fighting on the job, your injury may not be a compensable injury. That is you may not have a workers comp claim. The rule is as follows:
Work Injury Due to a Fight
Work Injuries due to fights at work are compensable injuries as long as
- the injured worker did not start the altercation or start the fight.
- the basis of the fight must centers around the job. There’s room for argument with this particular factor, particular since the lines between work matters and personal matters can be blurry. A quick example: not job related you get in a fight because you co-worker called your dog a smelly mutt. Job related, your co-worker is jealous you got a pay raise and he didn’t and he gets into your face, insults your dignity, you respond and then he hits you.
Back to our Kmart body slam incident. I’m thinking this situation is more analogous to circumstances of our clients who are employed in specialized health care and incarceration environments. For instance if you get attacked by a developmentally disabled patient, that’s not a fight perse but an unprovoked attacked. Likewise if you working in a jail and are ambushed by an inmate.
I’d argue that the Kmart employee, though possibly a bit over-zealously, was working for the benefit of Kmart by executing Kmart policies against something that the customer was doing. Therefore the Kmart employees broken hip should be a compensable work claim.
Bottomline folks, there’s nothing wrong with doing your best or trying to your best on the job, but at the end of the day a job is just a job, please don’t take unnecessary risks. I hope the Kmart worker is getting all the necessary treatment he is due.
Hopefully you do not have a work injury, but if you do and have questions or concerns please give the attorneys at the Malek Law Firm a call/email. Have a nice and calm December. Cheers, Kip