Legal Corner

ADA

Driving may not be an essential job function for traveling salesperson – 4th Circuit Court of Appeals

A top, long-term sales representative for Pfizer developed an eye condition that badly affected her vision and she was unable to drive. She requested a driver to take her to and from her sales meetings. Pfizer denied the request but the district court found that the ability to drive an automobile was an essential function of the job as a salesperson. The 4th circuit court reversed, emphasizing that the job description said nothing about driving or even possessing a driver’s license. The court sent the case back to the district court to determine whether driving or traveling was an essential function of the job.

Takeaway: The case illustrates the importance of thorough and precisely worded job descriptions.

Obesity alone does not qualify as disability – 8th Circuit Court of Appeals

A man who was 5-foot-10, weighed 285 pounds and had a body mass index of 40.9 was conditionally offered a machinist position by Fort Worth, Texas-based BNSF Railway Co. But the offer was rescinded when two medical examinations revealed his BMI exceeded a company policy preventing people with a BMI over 40 from being hired for safety-sensitive positions. An Omaha, Nebraska, District Court judge granted summary judgment in favor of BNSF noting that for obesity to be considered a physical impairment, it must be shown that a physiological disorder or other condition caused the obesity. Upon appeal, the 8th Circuit Court of Appeals agreed.

Employee can pursue suit for “associational” disability discrimination based on the disability of his son

In Luis Castro-Ramirez vs. Dependable Highway Express, Inc. an appeals court in California found that that an employee can maintain a suit for “associational” disability discrimination based on the disability of his son. The employee was terminated for refusing to work a shift that would have prevented him from performing his son’s dialysis on time. The appellate court held that the employee could pursue his claims for disability discrimination, failure to prevent discrimination, and retaliation in violation of the California Fair Employment and Housing Act (FEHA), as well as wrongful termination in violation of public policy.

Potentially embarrassing reassignment did not violate ADA

In Kelleher v. Wal-Mart Stores Inc., Wal-Mart did not fail to accommodate a stockroom worker with multiple sclerosis by reassigning her to a night cashier position, even though the worker feared she would have difficulty and face embarrassment in performing cashier duties, the 8th U.S. Circuit Court of Appeals ruled. Accommodation was challenging because of the many job restrictions, but the position included many of the same duties as the stocker position, and only required operating the cash register when the store was unusually busy. The 8th Circuit found that her transfer to a new position was not an adverse employment action because she did not present any medical evidence that the duties of the position would be difficult for her.

FMLA

Workers’ Compensation compromise and release agreement precludes FMLA claim

A federal judge ruled that an employee who suffered an eye injury while working at a farmers market in Reading, PA had his FMLA claims precluded by a Workers’ Compensation compromise and release agreement. The worker was fired shortly after he returned to work for an alleged security breach. When his workers’ comp claim was resolved he signed a broad compromise and release agreement, which in effect waived the FMLA claim.

 

Workers’ Compensation

Federal case to watch: DOL sues U.S. Steel for injury reporting policy

The U.S. Department of Labor (DOL) filed suit against U.S. Steel for disciplinary action against two Pennsylvania-based employees who reported injuries several days after they occurred and were suspended without pay for violating the company’s policy of reporting an injury within 24 hours. DOL’s lawsuit charges that U.S. Steel’s action violates the anti-discrimination provision of the Occupational Safety and Health Act. U.S. District Court for the Eastern District of Pennsylvania case 5:15-cv-03874

Workers’ comp laws should be liberally construed – California

In the unpublished case of Rodas v WCAB, the Court of Appeal found that death benefits should be awarded for an employee who died from a pulmonary hemorrhage while taking out the garbage at work. His arteries were prone to bleed because of lesions caused by tuberculosis. The court noted it was difficult to pinpoint the cause of death and all reasonable doubts as to whether an injury is compensable are to be resolved in favor of the employee.

Slip on sidewalk compensable – Missouri

In Lincoln University v. Kathy Narens, an administrative assistant was leaving work, and injured her ankle on the employer’s property on the way to her car. The court of appeals found that the accident arose out of her employment, noting the accident was caused by an unsafe hazard of uneven ground and a congested walkway. The court concluded the presence of the hazard met the statute’s requirement that there was something more than just being injured while on property owned and control by the employer.

Employee’s testimony is sufficient evidence to support claim – Nebraska

In Tchikobava v. Albatross Express, a decision of the Nebraska Supreme Court serves as a reminder that an employee’s testimony may serve as the sole basis to support an award for a compensable injury. A lower court had refused to award temporary total disability for a 3 1/2-year period because there were no medical records regarding medical care, nor medical records to verify the nature and extent of the disability during that period. The employee, however, testified that during that period his pain was such that it was difficult for him to move, he did not try to apply for employment, and he continued seeking medical care.

In reversing and remanding the case back to the trial court, the Supreme Court noted that “a compensation court may refuse to follow uncontradicted evidence in the record, but when it does so, its reasons for rejecting the only evidence in the record should appear… Unless some explanation is furnished for the disregard of all the uncontradicted testimony or other evidence in the record, the [compensation court] may find its award reversed as arbitrary and unsupported.”

Widow receives benefits six years after husband’s death from heart attack – New York

A process operator in Albany International Airport’s glycol facility sustained a myocardial infarction, collapsed on the job, and died a few days later in December 2010. When the widow’s application for benefits was denied, the case went through several appeals each favoring the award of benefits. According to case law “a heart injury precipitated by work-related physical strain is compensable, even if a pre-existing pathology may have been a contributing factor and the physical exertion was no more severe than that regularly encountered by the claimant.”

Joint employee and lent employee doctrines – North Carolina

Whicker v. Compass Group USA et al considered whether both the cleaning contractor and the health center to which a housekeeper reported each day employed her. The agreement between the two companies specified the work to be done, but the health center didn’t directly oversee the cleaning crews. The housekeeper fell in the parking lot during a lunch break and broke her shoulder. Her claim was denied by the cleaning company as not in the scope of employment and shortly thereafter she was fired for an infraction of company policies. She then filed another claim citing both the cleaning contractor and health center as employers, hoping to benefit from an exception to the coming and going rule that injuries on the premises of the employer may be compensable. The courts, however, determined her injury didn’t occur in the course and scope of employment and further, she was not a joint employee of the two companies.

Parking lot injury not compensable – Pennsylvania

In Quality Bicycle Products, Inc. v. Workers’ Compensation Appeal Board (Shaw), the employee injured his knee while he was running to his car due to a family emergency. While lower courts approved the claim for benefits, upon appeal, the Commonwealth Court of Pennsylvania found that the injury was not in the scope and course of employment and the decision was reversed.

$17.7 million verdict in wrongful death suit – Texas

The family of a Texas ironworker, who was killed while working on a project to build a pedestrian bridge to the Baylor University football stadium for Derr and Isbell Construction in 2014, sued his employer for wrongful death. It was argued that the construction company, Austin Bridge & Road, by-passed safety procedures to accelerate the project schedule. The boom lift that the employee was working on when he fell into the river was not chained down to the barge. The jury in the trial decided that Austin Bridge and Road was responsible and awarded the family $17,720,000.

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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