A worker sued his employer for failure to help him while he was suffering a stroke at work. The employer says this should be a workers’ comp case. How did a court rule?
Israel Baiguen was suffering a stroke when he arrived for work at Harrah’s Las Vegas. While Baiguen was waiting in line to receive his keys and radio for his shift, his immediate supervisor asked him a question. When he didn’t respond, the supervisor noted Baiguen was drooling and his face was drooping. The supervisor notified a manager who told Baiguen he couldn’t work. Two co-workers drove Baiguen home and then left after about a half hour. He was in the apartment for two days until his girlfriend found him unable to talk and drooling, and drove him to the hospital.
As a diabetic, Baiguen had about a three-hour window after exhibiting stroke symptoms to be treated with a blood-clot-busting medication called tissue plasminogen activator (t-PA). When administered within that window, t-PA increases by 30% the chance that a patient will fully recover from the stroke. Baiguen didn’t receive t-PA following his stroke because the treatment window had long passed by the time his girlfriend took him to the hospital.
Baiguen sued Harrah’s for failure to help him during the window of opportunity. A court granted summary judgment to Harrah’s, finding Baiguen’s exclusive remedy was workers’ compensation because the injury occurred in the workplace and arose out of his employment. Baiguen appealed. The Nevada Supreme Court recently heard the case.
In the course of employment?
Baiguen argued Harrah’s failure to respond to his stroke didn’t occur within the course of his employment, therefore it wasn’t covered under workers’ comp. Baiguen notes he hadn’t clocked in when his symptoms appeared.
The Nevada Supreme Court said Baiguen was on Harrah’s property at his regularly scheduled time, waiting in line to receive his radio and keys when the stroke occurred. In a previous case, the court ruled “injuries sustained on the employer’s premises while the employee is proceeding to or from work, within a reasonable time, are sufficiently connected with the employment to have occurred ‘in the course of employment.'”
But did Harrah’s alleged failure to help Baiguen occur in the course of his employment?
Baiguen argued his injury was a personal risk – something not covered under workers’ comp. Harrah’s argued the injury was the lost chance of recovery due to alleged failure to properly train employees to get medical attention for Baiguen, which would be an employment risk covered by workers’ comp.
The state’s highest court found Baiguen’s injuries were the result of a mixed risk – the personal risk of having a stroke and the employment risk that his employer might fail to render help.
The court said inadequate policies, procedures and training were risks related to Baiguen’s employment. Therefore, his exclusive remedy was workers’ comp. He wouldn’t be able to sue Harrah’s.
(Israel Baiguen v. Harrah’s Las Vegas LLC, Supreme Court of Nevada, No. 70204, 9/13/18)
Strokes: What to do
As noted above, Baiguen couldn’t talk and his face was drooped when he was having the stroke. If you think a co-worker is having a stroke:
- Ask them to smile. Does one side of their face droop?
- Ask them to say something. Can they respond? Does the speech sound different than usual?
- Ask them to lift both their arms over their head. Does one arm drift downward?
Three steps to take:
- Call 911 immediately.
- Note the time you first see symptoms. As in Baiguen’s case, it’s important so doctors know if they can administer t-PA. (For most patients, the window to administer t-PA is four-and-a-half hours.)
- Perform CPR if the person loses consciousness. In most stroke cases, this isn’t necessary.
Three things not to do:
- Let the person sleep or talk you out of calling 911.
- Give them medication, food or drink. That includes aspirin because 20% of strokes involve a ruptured blood vessel in which case aspirin isn’t appropriate.
- Drive yourself or someone else to the ER. Emergency responders can start life-saving treatment.
Consider giving employees this information during a toolbox talk or safety training.