TSA procedures could trigger workers' comp claims, attorneys suggest

The controversy surrounding new airport security measures could serve as a warning for employers to take some precautionary measures, several workers' comp attorneys advise. With lawsuits being filed and horror stories from offended passengers appearing on the Internet, it's likely just a matter of time before a disgruntled "road warrior" files a workers' comp claim.

"I think you're going to see some claims from it," said Richard Lenkov, a partner with Bryce Downey & Lenkov in Chicago. "Whether they'll be compensable is a different story."

The Transportation Security Administration recently initiated more thorough physical patdowns for passengers who opt-out of advanced-imaging technology full-body scanners and those who trigger alarms by metal detectors or AIT screening.

Flooding prompts call to reduce mold risks (06/20/11)
Telecommuters pose added risks for employers (08/01/11)
New Jersey blood clot case raises questions for comp community (08/01/11)
Criteria outlines exit strategy for employers under special scrutiny (09/27/12)
Survey shows workers largely unaware of employers' safety efforts (08/02/12)

The issue for workers' comp participants is whether such an incident would warrant a claim. "Most states allow for psychological injuries," Lenkov said. "The question is whether they must be accompanied by physical injuries. The trend is to allow for mental/mental claims" where a physical injury is not required for compensability.

But proving those claims can be challenging. In mental/mental states, the injury needs to be associated with a traumatic event.

"If you're at your job when a coworker gets his hand sliced off and you see it, that causes you mental anguish," said plaintiffs' attorney Matthew Belcher of the Belcher Law Office in Chicago. "But [in the case of a TSA patdown] the case can be defended by just saying it isn't abjectly harmful to pat somebody down."

Proving the cases, even where there is a physical injury claimed, would be difficult. "It would need to be very fact specific on a case-by-case basis," Belcher said.

The key is to look at the law of each state. "It depends on the standard of proof," said attorney Jim Pocius, a shareholder with Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia."The claimant could proceed through security and be embarrassed due to the patdown search,then claim mental anguish and indicate he couldn't fly.If this was considered a mental/mental type injury, the claimant would be considered disabled for the duties of his job.It could be considered a work-related disability."

Even in states that require a physical injury for compensability, the procedures could generate a claim."If a TSA person groped you or forcefully patted you down causing bruising, you would have a physical injury," Pocius said."If the worker is physically injured and can no longer fly as a result of a mental fear of further searching, there could be a mental injury resulting from a physical injury."

Pocius said the possibility of compensable claims stemming from the new procedures could be more likely for pilots and flight attendants. "They have to get patted down every day," he said. "It could even be a repetitive injury. Again, it depends on state law."

Concerned employers would be wise to try to mitigate the likelihood of workers' comp claims. "You could warn your traveling employees in advance," Lenkov said.

Additionally, consider new language in job descriptions for employees that may be routinely flying. "Employers should indicate to the employees that flying and searches are a routine occurrence," Pocius advised."Also, modify existing job descriptions to indicate that flying is a routine part of the job to protect yourself from mental/mental claims."

Read more at the WorkersComp Forum homepage.

December 16, 2010

Newsletter Sign-up