Legal Corner

FMLA
Worker with stage one kidney disease not entitled to FMLA leave

An employee diagnosed with stage one chronic kidney disease was not entitled to protection under the Family and Medical Leave Act (FMLA) because she did not have a “serious health condition” under the law, according to the 8th U.S. Circuit Court of Appeals. A doctor testified that stage one chronic kidney disease is not really a disease because kidney function “is actually normal to above normal at that point.” Rather, the kidneys are working harder than usual and a patient who receives proper care may avoid advancing to the higher stages of kidney disease.

In Dalton v. ManorCare of West Des Moines LLC, 8th Cir., No. 13-3743 (April 7, 2015), the employee also had performance issues and received a final written warning for violating work rules and eventually was terminated. She sued, claiming interference with her FMLA rights. The trial court dismissed the case, concluding that she was not protected by the FMLA because she did not have a serious health condition. The 8th Circuit agreed.

Workers’ Compensation
Industrial injury only has to be a contributing cause to be compensable – California

The California Supreme Court reversed a Court of Appeal decision that attempted to establish a higher causation standard for claiming workers’ comp benefits in a death case. The court upheld the long-standing position that an industrial injury only has to be a contributing cause for the worker’s death to be compensable.The decision in South Coast Framing v. Workers’ Compensation Appeals Board reinstates the original award of death benefits for Brandon Clark’s accidental drug overdose from four medications.

Supreme court ruling in hearing-loss case a big victory for industry – Louisiana

The Louisiana Supreme Court has ruled that employees who work in loud environments and suffer gradual hearing loss as a result of their workplace environment cannot sue their employers for their injuries. Gradual hearing loss claims are covered under the Louisiana Workers Compensation Act, according to the court. The ruling is a landmark decision, affecting dozens of hearing-loss lawsuits that are pending throughout the state.

Employee receiving workers’ compensation disability benefits guilty of theft by deception – Maine

The Supreme Judicial Court of Maine affirmed the conviction of a person receiving workers’ compensation disability benefits guilty of theft by deception. After paying more than $50,000 in benefits for a hand injury, the insurer became suspicious and conducted surveillance. The investigator captured video showing the defendant working full-time at a small-engine repair shop, performing various tasks there, opening and closing the shop, often working eight-hour days or longer, and wearing a uniform displaying the name Littleton Repair with his first name embroidered on it.

While he admitted, at a workers’ compensation hearing, that both telephone numbers displayed on the Littleton Repair business sign were in his name, he claimed that his son owned and operated the business and that he was never paid for his work. The Court held sufficient evidence was presented to show that he repeatedly made deceptive representations both about his ability to work and that he was not working or receiving income from labor. State v. Tucker, 2015 ME 68, 2015 Me. LEXIS 74 (May 19, 2015)

Contractual provisions protect project management firm – Massachusetts

In Rodrigues, et al. v. Tribeca Builders Corp., et al. (Civil Action No. 13-00730-C), the Suffolk (MA) Superior Court, recently granted summary judgment to a project management firm retained by a property’s landlord/owner, that was sued after an employee for a subcontractor was injured at a construction site. The injured employee brought claims against the general contractor, another subcontractor, and the project management firm hired by the landlord to provide project management services on its behalf.

The Court found that the project management firm role was that of a conventional “Clerk of the Works,” functioning as the eyes and ears of the owner in respect to the administration of the project, but not to matters of construction safety. Moreover, the general contract and subcontracts all contained terms obligating those parties to be responsible for job safety. Therefore, it owed no duty to the employee, and thus the injured employee could not assert a negligence claim against it.

Burden of proving mental stress claims lowered – Missouri

In Mantia v MoDot, there was no disagreement that the employee’s job as a highway worker exposed her to “horrific scenes of carnage, death and human tragedy over 20 years” and caused permanent psychological injury. However, the ALJ denied benefits and found the worker failed to prove that the stress was extraordinary or unusual compared to others in the same profession. An expert indicated dealing with this trauma was “part and parcel” of the job as a highway worker.

The Commission reversed the denial, and found the expert’s rating of 2.5% to be “extremely low” and awarded claimant 50% BAW based on expert testimony that claimant became depressed, cynical, angry, and socially withdrawn. The Commission based its rating on a diagnosis of depression, and did not adopt the opinion of the treating physician that claimant developed post traumatic stress disorder.

Worker who did not know how or why she fell awarded benefits – Missouri

In Riggins v My Camp, 2015 MO WCLR Lexis 47 (May 14, 2015), the employer argued that a worker who could not identify how or why she fell was not entitled to workers’ compensation. However, the Commission noted an expert may establish a risk source even if there is no recollection why the accident occurred.

The injured employee worked long shifts at a non-profit supported living program. A sleep medicine specialist testified that a shift work disorder and circadian misalignment syndrome contributed to her syncope and loss of consciousness. The ALJ concluded the injured employee worked “extremely long over night shifts” with inadequate rest intervals, which created a work risk that was the most likely explanation for the fall. The Commission in a 2-1 opinion affirmed an award of disability of more than $82,000.

Excuse that Hurricane Sandy caused a delay in filing claim inadequate – New York

The employee claimed he sustained an injury in a fall from the flat bed of a railroad car in the Bronx on August 14, 2012, meaning the time to file a timely notice of claim expired on November 12, 2012. Hurricane Sandy struck on October 29, 2012, and the employee’s proceeding seeking leave to serve a late notice was not commenced until January 9, 2013. While the employee claimed he could not meet with counsel because of the aftermath of Hurricane Sandy, the court found that he had regularly attended work at a nearby Bronx railway yard and had traveled in and around the city by car. Gonzalez v. City of New York, 2015 N.Y. App. Div. LEXIS 3444 (Apr. 28, 2015)

LLC Members must follow special statutory procedure to qualify for benefits – North Carolina

In North Carolina, employers must secure workers’ compensation coverage if three or more persons are employed. Under a separate provision, a member of a limited liability company (LLC) may elect to be included as an employee under the workers’ compensation coverage of the business if (a) he or she is actively engaged in the operation of the business and (b) if the insurer is notified of the election to be so included.

In Crabtree v. EVP Properties, LLC, 2015 N.C. App. LEXIS 365 (May 5, 2015), the Court of Appeals of North Carolina held that where the statutory procedure was not strictly followed, the managing member could not be considered an employee of the company. While the managing member clearly met the first criterion, she did not meet the second. There was no insurer and the firm only had two employees. Accordingly, an award of workers’ compensation benefits (and statutory penalties for failing to provide coverage) to the firm’s property manager, who sustained a broken wrist in the course and scope of her employment, was improper.

Workers’ comp insurer cannot file subrogation action when injured employee has taken no action — Pennsylvania

In Liberty Mut. Ins. Co. v. Domtar Paper Co., 2015 Pa. LEXIS 887 (Apr. 27, 2015) the Supreme Court of Pennsylvania held that employers or their workers’ compensation insurers, have no direct right of action against a third-party tortfeasor, when the injured employee has taken no action against the tortfeasor. The Court stressed that the employer and/or insurer stood in the injured employee’s shoes; neither had an independent right of action in their own name. The Court stopped short of holding that an employer or insurer could actually file suit in the name of the injured employee.

Lack of meaningful return to work spells seven percent impairment rating – Tennessee

An employee sustained an injury to his knee while attempting to repair a piece of heavy machinery owned by his employer. Because of a staph infection, three separate surgical procedures were required. The knee gradually healed, leaving a thick and sensitive scar, but the painful scar and the onset of early arthritis behind the kneecap, required work restrictions for four to six months. The symptoms, however, did not improve and the employee filed a lawsuit seeking benefits for permanent and total disability, which made its way to The Tennessee Supreme Court Special Workers’ Compensation Appeals Panel. The court affirmed the Circuit Court for McMinn County’s ruling for seven percent impairment and that the employee was denied a meaningful return to work. “When an injured employee is not returned to work by the employer at a wage equal to or greater than his or her pre-injury wage, the employee may receive permanent partial disability benefits up to six times the medical impairment rating,” according to the state Supreme court ruling. Gamble V. Abitibibowater, Inc. et al.

Employer caught by contract that required indemnification and defense from lawsuits -Wisconsin

The Wisconsin Court of Appeals recently found that an employer had waived its exclusive remedy protection through broad language in a service contract in Zenoni v. Discover Property & Casualty Insurance Company, 2015 WL 1824381 (April 23, 2015). The employee tripped on a floor mat in the employer’s (restaurant) kitchen. In addition to the worker’s compensation claim, she brought a civil suit against the owner of the building where the restaurant was located and against the floor mat supplier.

The restaurant had signed a service contract containing a broad indemnification clause in favor of the floor mat supplier. When the restaurant worker sued the mat supplier, the mat supplier sued the restaurant.While the outcome is to be determined, the restaurant must pay for the floor mat supplier’s defense to the employee’s civil suit.

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

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