Legal Corner

ADA

Employer does not have to remove essential job functions as reasonable accommodation

In Wilkerson v. Boomerang Tube, LLC, 2014 U.S. Dist. LEXIS 146695, the employee injured his hand and returned to work on light duty. After reinjuring his hand, he returned to work on light duty and eventually to full duty. A few months later he injured his other hand and was put on light duty, but there was a dispute about what he could do and he was fired for insubordination. He sued and alleged that Boomerang discriminated against him based on his disability.

The court found that the injured employee could not show he could perform his job with any reasonable accommodation and that the company did not have to relieve him of the essential functions of his job. The purpose of reasonable accommodation is to allow the employee to perform his or her job.

Employee who quit has no ADA claim

A diabetic former sales employee with Kohl’s Department Stores Inc., who quit after the store failed to grant her requested accommodation of a steady and predictable work schedule, lacked an Americans with Disabilities Act (ADA) claim because she walked away from the interactive process, a divided 1st U.S. Circuit Court of Appeals ruled.

Kohl’s did not present a specific alternative schedule and the employee walked out of a meeting when a manager advised a steady 9 to 5 schedule could not be given. Kohl’s made further attempts to discuss the options, but the employee refused. Because the employee had prematurely ended the interactive process by quitting, the court concluded the EEOC could not pursue either discrimination or a constructive discharge claim. EEOC v. Kohl’s Dep’t Stores, Inc., No. 14-1268 (1st Cir. Dec. 19, 2014)

EEOC Regional Attorney John Hendrickson offers key insights on EEOC’s Pregnancy discrimination guidance

This blog offers helpful information on EEOC’s recently drafted Pregnancy Discrimination Enforcement Guidance and how these guidelines will impact the manner in which employers are required to provide accommodations to its pregnant employees.

 

Workers’ Compensation

Case to watch – Are Uber and Lyft drivers independent contractors? – California

Two federal lawsuits filed in San Francisco U.S. District Court against ride-sharing services, Uber Technologies Inc. and Lyft Inc., raise questions about on-the-job accidents and workers’ compensation insurance. The cases allege that these companies improperly shifted costs onto drivers by classifying them as independent contractors.

GM improperly reduced workers’ comp benefits to some retired workers – Michigan

In the estate of Clifton Arbuckle vs. GM, the Michigan Court of Appeals has reversed a decision that allowed General Motors in 2010 to reduce workers’ compensation benefits for a retiree who was injured on the job. General Motors said it plans to appeal the ruling to the Michigan Supreme Court and the decision on whether or not to take up the case could ultimately impact benefits for hundreds of retirees.

Language barrier leads to $20,000 medical expense award for simple muscle strain – Missouri

An employer must pay almost $20,000 in medical expenses incurred when a worker, a U.S. citizen whose native language is Spanish and who could not read or write English, could not communicate effectively with medical staff. The staff misunderstood his complaints of chest pain, which occurred after he picked up a turkey weighing some 80 pounds and lifted it onto a tray, as a cardiac event, rather than minor muscle strain and performed expensive tests. When the employer refused to pay the medical bills, the court found that it was not unreasonable for emergency and medical personnel to have conducted tests to rule out a heart attack since the consequences would have been serious. Gonzales v. Butterball, L.L.C., 2015 Mo. App. LEXIS 139 (Feb. 11, 2015)

Coroner’s report not entitled to full faith and credit – Nebraska

An employee’s widow contended her husband died from an accidental overdose and relied on a Wyoming county coroner’s report that listed the cause of death as an accidental overdose of medications he was taking to relieve back pain following a compensable injury. The employer offered testimony by a board-certified clinical chemist, toxicologist, and forensic toxicologist that while the drugs were indeed present, the levels were far beneath those that would have been required to cause injury or death. The appellate court found that this was substantial evidence in spite of the fact that the chemist was not a physician and the widow did not prove a direct link between the work injury and his death. Michie v. Anderson Builders, Inc., 22 Neb. App. 731, 2015 Neb. App. LEXIS 27

Future surgery possibility does not prevent finding of MMI – Pennsylvania

In Neff v. Workers’ Compensation Appeal Board (Pennsylvania Game Commission), the injured worker had chronic lateral epicondylitis of the right elbow. An Impairment Rating Evaluations (IRE) was performed, and, after finding the injured worker had reached Maximum Medical Improvement (MMI), the examiner found a 1% whole body impairment (WBI). Based on this rating, the workers’ comp insurance carrier filed a Petition to Modify, to change the status of the injured worker to partial disability from total. The petition was granted and on appeal, the injured worker pointed out that the IRE examiner agreed that surgery for her elbow condition would be a reasonable future treatment option and therefore, she could not be seen as having reached MMI.

The Commonwealth Court disagreed, noting whether an injured employee has reached MMI is an inherently medical determination and the examiner had considered the possibility of surgery in determining whether MMI had been reached.

Ongoing wage loss not related to work injury – Pennsylvania

In Donahay v. Workers’ Compensation Appeal Board (Skills of Central PA, Inc.), the worker was employed at a group home for mentally challenged adults and suffered a ruptured right biceps when a resident hung on her arm. She returned to work in a limited role and transitioned to full duty, although she had physical restrictions that did not affect her ability to do her job.

When she returned to work, her hourly wage was higher than it had been when she was injured, however she was working less overtime, so her total pay was less. She argued the reduction in overtime was a result of her physical restrictions, but the insurance carrier explained that the reduction in overtime was based on budget issues, and applied to all employees. After hearing the evidence, the Workers’ Compensation Judge (WCJ) ordered the wage loss benefits suspended, since the loss of earning power was not caused by the work injury. Upon appeal, this decision was upheld with the Commonwealth Court, noting “medical restrictions are not relevant if they do not require a modification of the claimant’s pre-injury job duties.”

Worker’s claim of blindness from fracking chemicals denied – Pennsylvania

The Commonwealth Court denied the appeal of a worker who claimed to be blinded from exposure to chemicals used on a hydraulic fracturing site. While the former employee said he was sprayed in the face with water while working to prepare a water tank (for) transportation at a gas drilling site that led to blurred vision, the employer disputed the claim. The court found the employer’s expert, an ophthalmologist, more credible than the former employee’s medical expert, who was a family practice physician who had not treated him for any eye condition. James Dershem v. Workers Compensation Appeal Board

Goodyear worker due benefits for hearing loss – Tennessee

Although there is no mention of high-frequency hearing loss beyond the 3,000-hertz range in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, a worker for Goodyear Tire & Rubber Co. in Tennessee is entitled to workers’ compensation benefits, the Tennessee Supreme Court ruled. While Goodyear argued that the AMA guidelines “are the exclusive methodology for calculation of the medical impairment rating” the court noted since the guidelines do not address hearing losses at frequencies higher than 3,000, the guidelines do not cover this type of injury, but expert testimony had established an appropriate alternative method for calculating such high-frequency losses. Orville Lambdin v. Goodyear Tire & Rubber Company, Supreme Court of Tennessee, 1/29/15

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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