Lawyers in the "know" on the relationship of "exclusive remedy" provisions, "intentional conduct", and tort liability established by Kentucky's Workers Compensation Act were probably disturbed by this bit of cross-examination in the Strip Search Hoax lawsuit against McDonald's being tried in Bullitt County.
Disturbed to the extent of how a law designed to protect injured workers could possibly be manipulated by an employer to deprive a claimant of the full protection of the laws!
The story found in the Courier-Journal was entitled Testimony could hurt McDonald's. Although the story by Andrew Wolfson contains excerpts of excellent cross-examination by Kirsten Daniel on behalf of the injured Plaintiff Ogburn showing how there is always "more to the story", there was one bit of cross-examination which should have been a wake-up call to those who are considering changes to the workers compensation laws and the need for it to achieve its purpose and PROTECT the injured workers by plugging a possible hole in the system. Here is an extract of that cross-examination:
Area supervisor Jacque Heck, who was in charge of the Mount Washington store and several others, acknowledged on cross-examination that a manager altered Ogborn's time records to show that she was working at the time of her ordeal.
After initially claiming she didn't know why anyone at the company would do that, she conceded that one of McDonald's defenses is that Ogborn was on duty and cannot sue because her damages would be covered by worker's compensation.
"Louise wasn't working when she was stripped, spanked and sexually assaulted, was she?" one of Ogborn's lawyers, Kirsten Daniel, asked Heck.
"No, ma'am," she answered.
Obviously this is only one witness's testimony which may or may not be an accurate acknowledgement of the existence of a fact involving the actual altering of records, since a few questions and answers does not paint a complete picture of the defense or the evidence. However, it is nonetheless a damning acknowledgement to the extent that employers do know the workers compensation laws and the advantages and disadvantages of the benefits to the employer.
Whether or not any employee was "on the clock" at the time of an incident is a critical and technical component of any analysis as to potential remedies for an injury. For example, the "exclusive remedy" provisions of the Workers Compensation Act can be used by both employers and third parties to lock a claimant into a single source of recovery under the Workers Compensation Act for some or all of the injuries' consequences and damages.
What is noteworthy from these few questions are the implications and recognition that the potential harm that can be perpetrated on an employee by those in the know with an employer who might alter the evidence to deprive the employee of a remedy.
The Workers Compensation Act is designed to protect workers injured on the job and not workers off the job. To get these workers compensation protections, the workers give up rights to sue an employer or fellow worker for negligence in return for some compensation for their injuries regardless of negligence. Most would agree that workers compensation benefits are totally inadequate to make a worker whole following an injury, but the legislature nearly a century ago struck a balance between employer and employee to afford these protections. Making sure that balance is checked is important.
The Workers Compensation Act does NOT deprive a worker OFF the job who is injured by the employer from suing the employer just like any other person or customer of the establishment. Nor does it deprive the worker from suing third parties (those who are not also employed by the employer) for injuries. For example, the worker is driving a company car and is injured in a car wreck caused by another's negligence can sue this third party for damages not covered under workers compensation. In this example, the employer's medicals and wages are handled through workers compensation, but those damages which are not paid by workers compensation (excess wages, some medicals, and pain, suffering, anguish and inconvenience) could be recoverable from this negligent third party motorist.
Again, this post does not claim the statement by Jacque Heck is true or not true or go any further on how it relates to the trial, but simply addresses a potential for abuse exists in workers compensation law, and recognition that this legal nuance is apparently not a stranger in the house of the employer.
For what it is worth, this is not the only area for potential abuse in depriving a worker of compensation and bringing them within the forced umbrella of protection of the Workers Compensation Act. Eg.,
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