Legal Corner

ADA
Failing strength test does not qualify as disabled

An employer did not violate the ADA or the Minnesota Human Rights Act (MHRA) when it did not reinstate a janitor who failed a strength test, the 8th U.S. Circuit Court of Appeals ruled. A janitor at Minneapolis Public Schools was laid off due to budget concerns, but waseligible for reinstatement if he passed a strength test to demonstrate he possessed the requisite strength for the janitorial position.When he did not pass, he argued he was perceived to have a disability because his back was weak. The court disagreed, reasoning that determining an employee did not have enough strength to be a janitor was not the same as viewing an employee as disabled. Fischer v. Minneapolis Public Schools, 8th Cir., No. 14-2245 (July 8, 2015)

Requiring a worker to return from leave without restrictions or fully healed will cost you

When Brookdale Senior Living Communities of Denver refused to provide accommodations for an employee with fibromyalgia and required her to remain on full FMLA leave until she could return to work without restrictions, the EEOC went into action. Brookdale was ordered to pay $112,500 in back pay and alleged compensatory damages and to train all employees and management on the requirements of the ADA. While this case was settled and did not go to court, most courts have found that a 100% healed policy violates the ADA, which requires an individualized assessment.

FMLA
Cruise not medically necessary

An employee of the State of Washington Employment Security Department was given intermittent FMLA leave for migraine headaches. The following year, she submitted a doctor’s note excusing her from work for a two-week period for “FMLA vacation,” presumably because of her migraines. As a result, the employer expressed “some concern” about the two-week vacation and posed a number of questions to the treating physician. Upon her return, she received a 12-page termination letter citing six different reasons for her termination, including “inappropriately and in violation of agency policy took a pre-arranged cruise,” which was not related to the FMLA.

When she filed an FMLA interference claim, the court found there was no evidence that a two-week cruise was medically necessary to deal with her migraines. Notably, the doctor indicated that he was approving “FMLA vacation” time simply because she told him she had vacation time available to her.

Takeaway: As pointed out in Jeff Novak’s FMLA blog, employers should use the FMLA tools available to them to obtain more information about the medical condition and the certification. Clarifying certification must be approved by the employee in advance and in writing, such as through a HIPAA-complaint release.

Workers’ Compensation
Bumble Bee to pay $6M for death of employee in oven – California

Bumble Bee Foods has agreed to pay a $6 million settlement over the 2012 death of a worker who was burned alive in an oven, a sum the Los Angeles district attorney’s office says is the largest ever paid for a workplace safety violation in California. It includes $1.5 million restitution to the family of Jose Melena for willfully violating worker safety rules, $3 million for replacing all its outdated ovens with new, automated ones that would never require a worker to step foot inside, another $750,000 to the District Attorney’s Environmental Enforcement Fund, as well as $750,000 in fines, penalties and court costs.

Construction company owner, manager get two years for involuntary manslaughter -California

The conviction of a Fremont construction company owner and manager for involuntary manslaughter involving the death of an employee on a job site might be the first in more than thirty years. A city building inspector gave a “Stop Work” notice to the project manager because of the danger of a cave-in of the unsupported dirt walls in Milpitas. The work did not stop. Three days later, an employee, a resident of Mexico, was crushed to death when several thousand pounds of dirt and rock fell on him. In June, Cal-OSHA hit the now-defunct company with $168,175 in fines for 14 safety violations.

Two employers pay steep cost for misclassifying workers as ‘independent contractors’ – California

National Consolidated Couriers Inc., based in San Leandro, has agreed to a court judgment requiring it to pay $5 million in back wages and damages to more than 600 drivers it misclassified as independent contractors. The judgment disclosed that the employer tried to destroy records showing an employment relationship with its drivers, and had been misclassifying the workers over at least a five-year period.

In another win for workers, a federal judge ruled that drivers for Mountain View-based Stanford Yellow Taxi Cab, Inc. were also misclassified. The court’s decision allows the department to continue with litigation forcing the company to pay nearly $3 million in back wages and damages to dozens of drivers.

Benefits denied because work was not prevailing cause of ‘Hypertensive Crisis’ – Missouri

In Malam v. State of Missouri Department of Corrections, doctors’ views were mixed as to whether the employee’s injury was work related. A correctional officer was involved in a “take down” of an uncooperative inmate, and soon after experienced shortness of breath. X-rays revealed the presence of a pulmonary edema. The officer recovered with no permanent disability, returned to work and sought workers’ compensation reimbursement for the medical expenses associated with his hospitalization. A denial by an administrative judge was upheld with the court explaining the officer had failed to establish that his accident was the prevailing factor in causing his hypertensive crisis, which is a “sophisticated injury that could be caused by various factors.”

Injured employee’s negligence action against co-employee barred by exclusiveness – New York

As he walked across their employer’s parking lot at the end of his shift, a car driven by a co-employee struck an employee. The co-employee had driven his father’s car to work, had clocked in, and then returned to his car to wait for a parking space to open up during the employer’s shift change. The injured employee filed a civil suit against the co-employee and his father as owner of the car, but the court found both employees were acting within the course and scope of their employment and the civil suit was barred by exclusivity.The civil action against the co-employee’s father (as owner of the vehicle) could not proceed since the co-employee defendant was immune from direct liability. Power v. Frasier, 2015 N.Y. App. Div. LEXIS 6292

Grocer to pay $45K for allegedly firing injured employees on probationary period – New York

C&C Wholesale Grocers, the country’s largest wholesale grocery supply store, allegedly fired employees who were injured on “preventable accidents” while they were still in their 90-day probationary period of employment. The company’s employment policy stated any employee that was injured during their probationary period would be terminated. However, that policy was in violation of state law, which prohibits companies from firing or retaliating against employees who seek workers’ compensation benefits.

Game of laser tag leads to workers comp benefits – North Carolina

A former territory manager and outside sales representative for Tropical Nut & Fruit Co. who injured his knee playing laser tag during a mandatory company conference is entitled to workers’ comp benefits, a North Carolina appellate court has ruled. Participation was mandatory and he was paid his normal salary for attending. On the first night of the conference, attendees were assigned to participate in recreational activities paid for by the company. Upon returning home he saw an orthopedist and an MRI revealed tears to the knee’s medial meniscus and lateral meniscus. After arthroscopic right knee surgery, he was able to continue performing his job duties, but he was laid off due to a companywide restructuring. An orthopedic specialist later recommended a total knee replacement, and he filed a workers’ comp claim in connection with his earlier injury, but Tropical Nut & Fruit denied his request for benefits. However, the commission found that recreational events, including laser tag, were essential parts of the conference and served a business purpose for Tropical Nut & Fruit.

Money for family of late Wilmington Ten members denied – North Carolina

The North Carolina Court of Appeals declined to award compensation to the estates of the deceased members of the Wilmington Ten who were wrongfully convicted in 1972. The unanimous decision says section 148-82 of the Workers’ Compensation Act doesn’t allow for compensation for those wrongfully convicted because they were not pardoned before their deaths.

Surviving spouse loses claim for death benefits since she neither lived with nor was dependent upon worker at time of his death – North Carolina

In Easley (Deceased) v. TLC Cos, the court of appeals ruled a surviving spouse was not entitled to workers’ compensation death benefits because she left the family home several years prior to the deceased employee’s death, rarely spoke with him thereafter, did not rely upon him for financial or personal assistance, and had virtually no contact with him during the year prior to his death.

‘Employer’s liability’ exclusion does not bar coverage for suit against ‘additional insured’s’ – Pennsylvania

An important decision earlier this summer by the Pennsylvania Supreme Court in Mutual Benefit Ins. Co. v. Christos Politsopoulos, is good news for those who rely on additional insured provisions in their contractor’s insurance policies as a way of transferring risk. The Supreme Court ruled that the language in the standard employers’ liability exclusion is ambiguous (that it is not clear whether it is intended to apply to either the named insured or the additional insured, or both), and, using a standard rule of policy interpretation, held that the policy language must be construed against the insurance company and in favor of the policyholder. Accordingly, insurance companies can no longer use the Employers’ Liability exclusion contained in virtually all commercial liability policies to deny coverage to an additional insured that is sued by the named insured’s employee.

Employers do not need to seek agreement from employee before requesting an impairment rating evaluation – Pennsylvania

An employer is not required to seek an agreement with an injured employee as to the identity of an impairment rating evaluation (IRE) physician under Section 306(a.2) of the Workers’ Compensation Act, before seeking the designation of a physician from the Bureau of Workers’ Compensation. Logue v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania)

Widow who claimed husband was worked to death granted worker’s comp benefits – Pennsylvania

An appeals board did not find sufficient proof that the long, strenuous shift caused the employee’s fatal heart attack, however, a judge of the Commonwealth Court overturned the decision. While the employer argued that pre-existing health issues and a history of smoking, prompted the heart attack, the judge found the physically demanding job as a field maintenance worker working a 14-hour workday caused his heart-attack.

Court rejects intentional negligence claim by injured oil field worker – Texas

A Texas man who lost a thumb while working in the Oklahoma oil fields has lost his bid to sue outside of the state’s exclusive remedy rule for workers’ compensation, but the company for which he was a contract worker still may face a premises liability claim, a federal appeals court has ruled. Jesus Martinez and Kanda Martinez vs. Angel Exploration, LLC

Trucker’s heart attack is compensable – Tennessee

Although a cardiologist said there was no way to determine, “within a reasonable degree of medical certainty,” the physical exertion of the long-haul truck driver precipitated the heart attack, he noted the emotional stress of driving a large truck while experiencing chest pains could have accelerated the onset of the heart attack. The Circuit Court of Sevier County found, and the Tennessee Supreme Court Special Workers’ Compensation Appeals Panel affirmed, the heart attack arose out of and in the scope of his employment and that, as a result, he was permanently and totally disabled. Curtis D. Marvel v. Roane Transportation Services, LLC

Employer liable for second knee surgery after injured employee falls in backyard – Tennessee

A special workers’ compensation appeals panel of the Supreme Court of Tennessee affirmed the trial court’s finding that an employer was liable for medical expenses and disability indemnity that arose from an injured employee’s backyard fall as she attempted to pick up a small, sharp object that she saw lying on the ground. Less than a month earlier, the employee had undergone ACL surgery to repair damage she sustained in a work-related accident. The employer contended the backyard fall was an intervening event that absolved it of further liability. But the courts disagreed, after hearing testimony from the treating physician that the employee had not violated her medical restrictions. United Parcel Service, Inc. v. Brown, 2015 Tenn. LEXIS 628 (Aug. 11, 2015)

Supreme Court declines to recognize job applicant’s claim that previous workers’ comp claim resulted in failure to hire – Tennessee

The Tennessee Supreme Court has ruled that a job applicant does not have a claim against a prospective employer when the employer fails to hire the person because she previously filed a workers’ compensation claim. While an employee was performing light duty as a result of an injury, her employer, the University Medical Center contracted with Hospital Housekeeping Systems, LLC to perform the hospital’s cleaning services. She was not considered for a job because she was on light duty and not working in the housekeeping department at that time.

When she was released by her doctor to perform full-duty work, she applied for work with Hospital Housekeeping Systems, but was not hired, at least in part, due to her previously filed workers’ compensation claim while employed by the hospital. She sued in federal district court, raising a number of claims, including that the housekeeping company’s failure to hire her because she had filed a previous workers’ compensation claim gave rise to a cause of action for retaliatory failure to hire. The federal district court asked the Tennessee Supreme Court to consider whether there should be a cause of action for retaliatory failure to hire in Tennessee.

In a unanimous opinion the Supreme Court declined to recognize a cause of action for retaliatory failure to hire. The Court explained that although some states allow for this type of lawsuit, Tennessee is an employment-at-will state and the Tennessee Legislature has not created this cause of action. Moreover, while an at-will employee may not be fired for filing a workers’ compensation claim, there is a fundamental difference between discharging an employee and refusing to hire a job applicant. Kighwaunda M. Yardley v. Hospital Housekeeping Systems, LLC

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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