Legal Corner

FMLA
ABA’s summary of 2014 FMLA cases

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year. This excellent resource summarizes all 2014 decision.

ADA
U.S. Supreme Court ruling EEOC guidance on pregnancy

The U.S. Supreme Court revived a woman driver’s pregnancy discrimination claim against UPS Inc. by sending the case back to a lower court. The Court argued a balancing test, known as the McDonnell Douglas burden shift, should be used to determine whether a pregnant employee has suffered employment discrimination as a result of her pregnancy. The test includes:

  • belongs to the protected class (i.e., she is or was pregnant)
  • sought an accommodation
  • the employer did not accommodate and
  • the employer accommodated others similar in their ability or inability to work.

While portions of the EEOC guidance may have to be revised, aspects of the decision may be moot because many employees who are pregnant now have disabilities under the expanded definition of the Americans with Disabilities Act Amendments Act (ADAAA), which was enacted after this case began and, therefore, did not govern the case. Employers should evaluate each situation on a case-by-case basis and adhere to the interactive process established under the ADA.

North Carolina case highlights broadened definition of disability and importance of interactive process

In Jacobs v. N.C. Administrative Office of the Courts, No. 13-2212 (4th Cir. Mar. 12, 2015), a customer service rep in a North Carolina courthouse experienced social anxiety and requested an accommodation to work the front desk less frequently. She was found sleeping at her desk and was terminated. A district court granted summary judgment in favor of the Clerk’s Office on all of the ADA claims, finding the clerk was not disabled. However, The Fourth Circuit found a jury could conclude the clerk was disabled within the meaning of the ADA, and the disability was the cause of her discharge because her supervisor knew of the accommodation request prior to terminating her.

The case serves as a reminder that the expanded definition of “disability” under the amended ADA means employers should not assume that an employee’s medical condition does not qualify as a disability and should engage in a thorough interactive process when there is an accommodation request.

Workers’ Compensation
Employer does not have to pay for palliative care – Connecticut

A physician testified that a worker, who had sustained a head injury, had reached MMI in March 2002, but that he continued to treat the worker for pain management. Other testimony by a neurosurgeon indicated that the former worker showed no signs of brain injury but rather had degenerative changes typical for his age and that no additional treatment would benefit him. Therefore, the court affirmed the finding of the commissioner that various medications prescribed by the treating physician were palliative rather than curative, and thus were not reasonable and necessary medical treatment.

Sellers v. Sellers Garage, Inc., 2015 Conn. App. LEXIS 83 (Mar. 10, 2015)

Worker who returned to work with restrictions but stopped working cannot pursue retaliatory charges – Michigan

In an unpublished decision, a Michigan appellate court affirmed a trial court’s grant of summary judgment favoring an employer in an injured worker’s retaliatory discharge action. The court found that there was not a causal connection between the protected activity-seeking workers’ compensation benefits and requesting a hearing, and the worker’s termination. While the worker’s physician authorized a return to work with restrictions and the employer complied, on two occasions the worker stopped working after a few hours. The worker neither returned to work nor provided an excuse for his absence, in spite of efforts by the employer to provide more opportunities to return to work.

Lucero v. Department of Corrections, 2015 Mich. App. LEXIS 500 (Mar. 12, 2015)

A nurse who broke here ankle on stairs denied benefits – Minnesota

A nurse who fractured her ankle while descending a staircase isn’t entitled to workers’ compensation benefits because she didn’t meet the increased risk test, which requires employees to prove their workplace exposed them to an increased risk of injury, or a “special hazard” they wouldn’t face in everyday life, the state Supreme Court ruled.

Lower court rulings in her favor based their decision on contradictory evidence, noting the injury occurred on the sixth of 12 steps, where there was no handrail present, but also found that handrails extended “about two-thirds” of the way down the staircase. Photographic evidence showed the handrail extended down the entire staircase.

Court of Appeals awards benefits for unexplained fall – Missouri

A worker, who fell 20-25 feet from a rail car, settled his case with the employer and proceeded with a claim for second injury fund benefits. The Commission had denied the claim because the worker did not identify a hazard or risk that caused him to fall and therefore, could not prove the accident arose out of his employment.

The court found that the worker did not have to show why he fell. A fall is compensable from an unexplained cause if a worker identifies a risk source and distinguishes the risk from non-occupational exposure. The case was remanded and Commission could affirm a denial of benefits based on a second ground that was not addressed.

Company that discarded safety not protected under CGL policy – Ohio

An insurer that covered employers under a commercial general liability policy (CGL) isn’t obligated to indemnify the employers if they’re found liable in an injured worker’s intentional tort claim, said the Ohio Supreme Court. An employee, working on a construction project, was injured when he fell about 14 feet from a ladder-jack scaffold. The worker sued under the intentional tort exception to workers’ compensation exclusive remedy.

The Court ruled that Cincinnati Insurance would have no duty to indemnify the employer, DTJ and Cavanaugh, even if the worker establishes liability, because the CGL policy excludes coverage for all employer intentional torts.

Former Steeler entitled to workers’ comp for football injuries – Pennsylvania

The Commonwealth Court ruled that the Pittsburgh Steelers must pay former center, Chukky Okobi, $779 a week in workers’ compensation, plus more than $22,000 in other fees, for injuries that prevent him from playing pro football. In rejecting the team’s argument that it wasn’t allowed to fully state its case against awarding compensation, a judge noted the team missed numerous filing deadlines set and then reset by the workers’ compensation judge. In ruling in Okobi’s favor, the judges cited football-related back, neck and arm injuries.

Nurse allergic to floor wax entitled to benefits – Pennsylvania

A nurse should receive workers’ compensation benefits for exposure to a floor wax that caused her to have breathing problems, even though she has moved on to a new part-time job and is no longer experiencing asthma symptoms, a Pennsylvania appellate court has ruled. Doctors representing her acknowledged that the condition was caused directly by exposure to di-isocyanate in the workplace, thus it was occupationally induced asthma. Additionally, doctors note she should avoid further exposure to the chemical to prevent future asthma attacks.

The appellate court found that her continued sensitivity to the floor wax chemical and her inability to return to her pre-injury work environment entitled the nurse to additional workers comp benefits.

Judges must evaluate abnormal working conditions on a case-by-case basis – Pennsylvania

In order to determine whether a purely psychiatric injury is compensable, a Workers’ Compensation Judge must consider whether the underlying events represented a singular, extraordinary event or a normal working condition, according to the Commonwealth Court in Murphy v. Workers’ Compensation Appeal Board (Ace Check Cashing, Inc.). In this case, the Court remanded the matter for the WCJ to consider whether an armed robbery in a check-cashing agency met the standard set forth by the Supreme Court in Payes v. Workers’ Compensation Appeal Board (PA State Police).

Exotic dancer is employee, not independent contractor, and entitled to benefits – South Carolina

An exotic dancer who was shot at a Columbia nightclub is entitled to workers’ compensation benefits for her injury, the S.C. Supreme Court ruled in what could be a potentially precedent-setting decision for topless performers in the Palmetto State.

A stray bullet struck the topless dancer in the abdomen after a fight broke out and caused “severe damage to her internal organs and resulted in the loss of a kidney.” The ruling said the employer, Boom Boom Room, exercised enough “control” to show that the worker was an employee, not a contractor.

Worker wins benefits for injury caused by underlying existing condition – Tennessee

An employee should receive workers’ compensation for a knee injury he suffered while at work, even though his injury was caused by an underlying knee condition unrelated to his job, a panel of the Tennessee Supreme Court has ruled. While the employer, Johnson & Johnson Health Care Systems, argued that the injury was idiopathic, a result of an “anatomical disposition” to having the knee cap move out of place rather than a special hazard at the workplace, the Court’s Special Workers’ Compensation Appeals Panel reversed earlier decisions, finding that the injury arose out of his employment because Johnson & Johnson required him to step on and off pallets on a regular basis.

Tribe immune to casino injury claim – Wisconsin

A Wisconsin appeals court tossed a suit against the Lake of the Torches Resort & Casino, an arm of the Lac du Flambeau Band of the Lake Superior Chippewa Indians, over an injury sustained by an employee, ruling the tribe did not waive its sovereign immunity from a suit in state court.

Calculation of death benefits for 17-year-old worker clarified – Wisconsin

Wis. Stat. § 102.11(1)(g), provides that when the employee is under 27 years of age at the time of death, his or her average weekly earnings should be computed based upon what the employee “would probably earn after attaining the age of 27 years.” The dairy farm worker, who was crushed while herding cows and had worked only two weeks for the employer, appeared to be in the U.S. illegally and the insurance carrier was unable to identify “dependents.” The employer contended that since the worker could not be employed legally here, his earnings in Mexico, not projected earnings here, should be used to compute the AWW. The court disagreed.

American Family Mut. Ins. Co. v. Labor and Indus. Rev. Comm’n, 2015 Wisc. App. LEXIS 156

  For Cutting-Edge Strategies on slashing Workers’ Compensation Costs visit www.PremiumReductionCenter.com

David Leng, CPCU, CIC, CBWA, CWCA, CRM

Author | Speaker | Certified Risk Manager | Certified Work Comp Advisor

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s