Legal Corner

ADA
County jail worker with cancer denied ADA claim

The 11th U.S. Circuit Court of Appeals found that attendance was an essential function of a position in Spears v. Creel, and denied the ADA discrimination claim of a former corrections supervisor in the medical unit for a county jail in Florida because she failed to identify a reasonable accommodation that would have allowed her to perform the essential functions of an available position.

 

Workers’ Compensation
Drug overdose death puts onus on workers comp payers- California

In the case of South Coast Framing, Inc. vs. Workers’ Compensation Appeal Board, the California Supreme Court ruled an injury must only be a contributing cause in a compensable death. In this case, a carpenter died 10 months after he fell off a roof and suffered serious injuries. His death resulted from the toxic effects of taking four sedating drugs, two of which were prescribed by his workers’ comp physician and two by his personal physician. In its ruling, the California Supreme Court said the surviving family was due compensation since an “industrial injury need only be a contributing cause to the disability.”

Takeaway: Ensuring that physicians use best practices, monitoring treatment through utilization reviews, and independent medical reviews are key preventive approaches.

FedEx settles suit by drivers for $227 million – California

FedEx reached a $227 million settlement in a labor dispute with more than 2,000 of its California delivery drivers after the court found that FedEx misclassified its drivers as independent contractors almost a year ago.

Temporary services and leasing employers prohibited from self-insuring workers’ comp – California

A California appellate court has upheld the constitutionality of Labor Code § 3701.9, which generally prohibits temporary services employers (TSE’s) and leasing employers (LE’s) from self-insuring their workers’ compensation liability. The potential for a rapid increase in the number of employees, coupled with the delay in adjusting the amount of the self-insurance security deposit, was a rational basis for excluding TSE’s and LE’s from the workers’ compensation self-insurance program.

Appeals court tosses ruling that held exclusive remedy unconstitutional – Florida

Florida’s Third District Court of Appeal overturned a circuit judge’s constitutional ruling that the exclusive remedy provision of the state’s Workers’ Compensation Law was unconstitutional. The court found that plaintiffs did not have legal standing and the case was moot, but the appeals court did not weigh in on whether the workers’ compensation system was constitutional.

Average weekly wage must reflect all earnings – Georgia

In Thomas v. Fulton County Board of Education, et al., No. A14A2057 (Ga. Ct. App. 03/30/15), the Georgia Court of Appeals sent a bus driver’s case back for recalculation of her wage-loss compensation award because the wages from a second job were not included. The court explained that under a state statute, when a worker is injured, if she had worked in the same type of employment during “substantially the whole of 13 weeks immediately preceding the injury,” her average weekly wage is 1/13 of the total wages earned during that period.

Injured workers gets $2.4 million jury verdict- Indiana

A 46-year-old suffered a fractured leg when he fell from a ladder while working at a section of ArcelorMittal’s Burns Harbor plant operated by a scrap metal services contractor. The Cook County jury found Scrap Metal Services fully responsible for the accident, partially because the ladder was out of code, and awarded the worker $2.4 million. Douglas Anoman, et al., v. Scrap Metal Services, LLC, et al., 11 L 66009

Tort recovery by law enforcement officer barred – Kansas

The so-called “firefighter’s rule,” is an exception in a number of states to the rights of workers to pursue civil actions against third parties whose negligence causes work-related injuries. Recently, a Kansas appellate court extended the doctrine to cover a law enforcement officer who sustained severe injuries in a vehicular accident as he approached the scene of an earlier wreck. [Apodaca v. Willmore, 2015 Kan. App. LEXIS 35 (May 15, 2015)].

Taxicab drivers are independent contractors – Massachusetts

In a highly anticipated decision, the Massachusetts Supreme Judicial Court vacated a lower court decision and held that Boston taxicab drivers were properly classified as independent contractors and thus not entitled to coverage by the Massachusetts Wage Act. Sebago v. Boston Cab Dispatch, Inc., No. SJC-11757 (April 21, 2015).

Traveling nurse awarded benefits – Missouri

A traveling nurse on a home visit fell on the front icy trailer steps and sustained multiple transverse process fractures with radiculopathy. While the employer argued the nurse had not yet started her job nor had she clocked in at the time the accident occurred, the Commission noted the nurse was compensated for travel and had no further obligation to show that she clocked in to work. It also found a greater exposure – the unique hazard of climbing stairs of a patient’s trailer on a winter evening when ice and snow were present. West v Phoenix Home Care, 2015 MO WCLR Lexis 54 (May 29, 2015).

Pre-existing condition does not exclude comp benefits – New York

The New York Supreme Court Appellate Division’s 3rd Judicial Department in Albany found a worker’s pre-existing neck injuries should not bar him from getting full workers’ compensation benefits for a back injury. The employer, Consolidated Edison Co. of New York Inc, asked the court to permit apportionment between the current compensable disability and the previous non-work-related, non-compensable disability. However, the appeals court said apportionment is not applicable in conditions where the pre-existing condition was not the result of a compensable injury and the worker is able to “perform his or her job duties at the time of the work-related accident” despite the pre-existing condition.

Delayed comp payment costs employer 20% penalty – New York

An injured worker is entitled to a 20% penalty from an employer that was late in paying a compensation claim, the 3rd Department of the State of New York Supreme Court’s Appellate Division in Albany has ruled. The New York Workers’ Compensation Board awarded benefits to the New York City Health and Hospitals Corp employee in February 2012 but the employer did not pay until September 2012.

The employee requested that the employer pay a penalty amounting to 20% of the unpaid compensation, pursuant to a provision in the state’s workers compensation law requiring payment within 10 days. While lower courts denied her request based on the rules of a conciliation process, the Appellate Court stated that a decision rendered as part of the conciliation process could not override the state’s workers compensation laws, and awarded the 20% penalty.

Employee must provide information about subrogation settlements – Pennsylvania

In Reed v. Workers’ Compensation Appeal Board (Allied Signal, Inc.), the Commonwealth Court ruled that the employer’s right to subrogation against an injured worker’s third party tort action is automatic. If the employee refuses to disclose the amount of the settlement, the employer is entitled to a suspension of benefits.

Social Security offsets & specific losses clarified – Pennsylvania

In Pocono Mountain School Dist. v. Workers’ Compensation Appeal Board (Easterling), the Commonwealth Court addressed specific losses and social security offsets. To receive both total disability and specific loss benefits, a worker need only to have suffered separate and distinct disabilities, pursuant to Section 306(d) of the Workers’ Compensation Act, 77 P.S. § 513, provided the payment of specific loss benefits is withheld until all disability benefits are terminated. The Court also said that an employer is not entitled to an offset for Social Security retirement benefits if the worker was entitled to the Social Security retirement benefits before the date of the work injury.

Remote worker’s injury traveling from motel to work site not barred by going and coming rule – Texas

A divided Supreme Court of Texas affirmed that an employee was acting in the course and scope of his employment when he died in an automobile accident while traveling to a job site located some 40 miles from a motel where he as staying. The employee had been assigned to work at a remote job site and while he was not paid for travel time, he was given a per diem for lodging and food expenses, was supplied with a company vehicle to travel from his motel to the work site,and was transporting two other workers to the site when the accident occurred. Seabright Ins. Co. v. Lopez, 2015 Tex. LEXIS 553 (June 12, 2015)

Employees limited in ability to sue non-insured employers under premises liability – Texas

The Texas Supreme Court held, in Austin v. Kroger Texas, L.P., No. 14-0216 (Tex. Sup. Ct. June 12, 2015) that an employer has a duty to maintain its premises in a reasonably safe condition for employees and warn employees of concealed dangers. However, an employer generally does not have a duty to warn or protect its employees from unreasonably dangerous premises conditions that are open and obvious or known to the employee.

While the ruling applies to the premises liability law, in the same opinion, the high court stated that employees should be able to recover damages under a separate “negligence” law if the employer failed to provide proper equipment, training or supervision that could have prevented the injury. This could open the door for negligence claims with potentially major damage awards, which have not been previously available to workers of non-insured employers in Texas.

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