Legal Corner


North Carolina law firm does not violate ADA in firing Support Services Assistant with permanent lifting restrictions

A support services employee took FMLA leave in 2008 when she was diagnosed with breast cancer and later developed lymphedema that limited her ability to lift heavy objects. She suffered a work injury in 2010 related to heavy lifting. Her doctor restricted her to lifting no more than 10 pounds and the firm met with the employee and determined that her duties included many more jobs that she couldn’t perform than she could. She was placed on light duty for six months to do a large scanning job, then on medical leave, and then was terminated. She sued under the ADA, but the court held that she was not a qualified individual because she could not perform the essential job functions, even with accommodations. EEOC v. Womble Carlyle Sandridge & Rice, LLP, 31AD Cases 1349 (4thCir. 2015)


To avoid interference claims, watch your comments

In a recent case, Kimes v. University of Scranton, the U.S. District Court for the Middle District of Pennsylvania held a supervisor’s comment that it would be “inconsiderate” for the employee to take intermittent FMLA because the employer was short-staffed created an actionable claim for FMLA interference. The court reasoned that an equitable jury could conclude that such a comment could discourage the employee from using FMLA leave in the future.

Employer takeaway: The term “interfering with” includes not only refusing to authorize FMLA leave, but also discouraging an employee from using such leave, even if it is ultimately granted.

Pregnant worker’s claim upheld, but jury must decide damages

An employee of Stuart Management Corp., a property management company, was going through a high-risk pregnancy that first limited the types of cleaning tasks she could do and later, the hours she worked. When the hours were restricted, the company terminated her and, on that date, she had been employed for one year, thus making her eligible for FMLA leave. She sued and a judge granted her summary judgment and awarded damages of over $160,000; however, the Eighth Circuit affirmed summary judgment but observed that a jury should determine the damages and whether the employer acted in bad faith. Wages v. Stuart Management Corp., No.14-2793 (8th Cir. Aug. 10, 2015)

Employer takeaway: The FMLA protects those who will soon become FMLA-eligible and who seek leave for medical issues that qualify under the act. Employers may argue that the resulting consequences do not justify large amounts of damages.

Workers’ Compensation

Comp benefits only remedy for asbestos worker’s survivors – California

Workers’ compensation is the exclusive remedy for the family of a California man who died after he was exposed to asbestos at work and from scrap materials that he took home from his employer, Ameron International Corp.The family argued that workers’ comp should not cover asbestos exposure from working with Ameron pipe on his own time. However, a three-judge panel of the California 2nd District Court of Appeal unanimously upheld the lower court ruling, finding that employment at Ameron was the significant factor in the asbestos exposure and separate exposure at home does not create a separate injury outside workers’ compensation coverage. The appellate court also affirmed an award to the employer of $80,719 in expert witness fees. Melendrez v. Ameron Intern’l Corp., 2015 Cal. App. LEXIS 820 (Sept. 17, 2015)

Marijuana case to watch – Massachusetts

A Massachusetts woman, Cristina Barbuto, has filed a suit in Suffolk County Superior Court against her former employer, Irvine, Calif.-based Advantage Sales and Marketing, claiming she was fired from her job for using marijuana, which was legally obtained for medical reasons related to her Crohn’s disease. Court papers indicate she told her employer prior to hiring that she would test positive for marijuana, that she never used marijuana before work or while working, and that she typically used it two or three times a week at home in small quantities and did not feel intoxicated when she did. After her first day at work, she tested positive and was subsequently fired.The company argues it follows federal, not state law.

This case is the first of its kind in Massachusetts where the medical marijuana law is largely silent on an employer’s responsibility toward an employee who uses medical marijuana after hours.

“Alternative employer endorsement” in staffing company’s policy provides immunity protection for special employer sued by injured worker – Massachusetts

An “alternate employer endorsement” written into the workers’ compensation insurance policy of an employment staffing company that named the special employer as an additional insured meant that the special employer was immune from common-law liability under the Workers’ Compensation Act. Molina v. State Garden, Inc.

6th Circuit affirms ruling that truckers aren’t contractors; employer owes insurance company $100,000 – Michigan

A Michigan trucking company, Max Trucking LLC, owes Liberty Mutual Insurance Co. $100,000 for unpaid workers’ compensation insurance premiums on drivers it wrongly classified as independent contractors. In the 6th U.S. Circuit Court of Appeals’ first ruling on the 2011 amendment to the statute, a unanimous three-judge panel found that a lower court was correct to use the law’s original three-factor test to classify the drivers as employees rather than the 20-factor test that was added to the amendment.

8th Circuit says district court erred in finding FedEx operators were employees as a matter of law – Missouri

Under Missouri law, employment status is an issue of fact, and the 8th Circuit noted that the issue before it was whether a reasonable jury could disagree and conclude that FedEx drivers were independent contractors. It could, said the 8th Circuit, because the operators were not required to deliver packages themselves, but could hire others to do it; the operator could not be fired at will, but only for cause; operators provided their own vehicles; and the operators controlled the manner and means used to make deliveries. However, other factors supported a finding of employment, thus there is a genuine dispute as to whether the operators were employees and the issue should have been submitted to the jury. Gray v. FedEx Ground Package System

Nurse awarded PTSD benefits after series of assaults by patients – Nebraska

A registered nurse who worked in the mental health unit at Good Samaritan Hospital in Kearney, suffered three assaults by patients, the first involved a physical injury but the subsequent two did not. Arguing that Nebraska’s general rule requires mental health claims to be related to or caused by physical injuries, the employer denied the injuries related to the second and third attacks. The nurse reported suffering panic attacks, loss of appetite, general anxiety and depression. The court reasoned that the three assaults produced “the totality of mental illness” and resulted in a permanent partial disability and a complete loss of earning power. Hynes v. Good Samaritan Hosp., 291 Neb. 757, 2015 Neb. LEXIS 156 (Sept. 4, 2015)

Fired disabled worker gets new trial – Nebraska

Nebraska-based construction supply company NEBCO Inc. assigned a concrete truck driver to a less strenuous driving position after he shattered his kneecap in a work-related accident. However, he suffered a brain injury in a 1996 accident while driving a flatbed truck and was absent for six months, requiring rehabilitative care for speech and memory problems, which he still experienced upon his return to work. In 2006, a new supervisor allegedly began singling him out for complaints about his work and ignored his disabilities. In 2010, he was laid off because of slow business, according to the company, which he argued was a pretext to terminate him.

In the lawsuit, the trial judge excluded as irrelevant testimony from a vocational rehabilitation counselor to show that the employee had permanent mental impairments following his 1996 brain injury, which the company had accommodated in the past, but the Supreme Court found this testimony to be relevant and granted a new trial.

Ex-MLB ump wins med mal suit no longer eligible for workers’ comp – New York

A former Major League Baseball (MLB) umpire can’t continue to receive workers’ compensation benefits after settling a medical malpractice lawsuit. The umpire sustained a work-related hip injury and was awarded workers’ comp benefits, but when he underwent hip replacement surgery, he was left permanently disabled following complications and additional surgeries and forced into retirement.

He received a $3.2 million settlement from the maker of his artificial hip. New York-based MLB workers’ comp insurer then suspended his benefits, as it claimed it had reserved its rights to a future offset from the settlement as part of a 2007 agreement. The Workers Compensation Board ruled in favor of the insurer and the 3rd Judicial Department of the State’s Supreme Court Appellate Division agreed.

Important decision regarding the use of AMA Guides – Pennsylvania

In M.A. Protz v. Workers’ Compensation Appeal Board, a sharply divided Commonwealth Court declared Section 306(a.2), which states that IREs are to be performed “pursuant to the most recent edition of the American Medical Association (AMA) ‘Guides to the Evaluation of Permanent Impairment,'” is an improper delegation of legislative authority and is unconstitutional. The majority noted that in 1996, when the statute was modified to require the use of the AMA Guides, 4th Edition, the Legislature had examined the Guides and determined that it conformed to public policy. However, once adopted, those guidelines remain in effect even if the AMA amends or changes them (it is currently in its Sixth Edition). Although delegation of this authority to a government agency might be allowed, the statute would still be unconstitutional because the delegation in this case was to a private party, the AMA.

The Court remanded the case back to the Workers’ Compensation Judge (WCJ), for the WCJ to consider the IRE under the Fourth Edition.

Truck driver denied benefits following extraterritorial injury – Pennsylvania

An appellate court held that a truck driver was not entitled to benefits in Pennsylvania for an extraterritorial injury because his employment was not principally localized in Pennsylvania.The driver and the employer entered into an agreement in Alabama that clearly indicated all workers’ compensation claims for on-the-job injuries were to be exclusively governed by the workers’ compensation laws of Alabama, and the driver performed his duties in a number of states, including Pennsylvania, Alabama, and New Jersey – where the injury occurred. The agreement’s terms did not violate public policy. Had the injury occurred in Pennsylvania, the decision would have been different, indicated the court. Watt v. Workers’ Compensation Appeal Board (Boyd Brothers Transportation)

Store manager’s PTSD found compensable after encounter in parking lot – Tennessee

A store manager who sustained injuries in her employer’s parking lot after she pursued two persons, posing as customers, who stole her purse from the store, could recover workers’ compensation benefits for psychological injuries in the nature of PTSD, held the Special Workers’ Compensation Appeals Panel of the Supreme Court. While disagreeing with the trial court’s reliance on the so-called “street risk rule” for the award of benefits, the panel held that the manager’s injuries arose out of and in the course of her employment since the assault had an “inherent connection” to the employment because the parking lot was part of the employer’s premises. Mattress Firm, Inc. v. Mudryk, 2015 Tenn. LEXIS 689 (Aug. 24, 2015)

Tennessee Titan tackle, Michael Roos, settles workers’ comp claim – Tennessee

Roos and the Titans negotiated a lump sum payment of $76,633.70 for the 28 injuries, many of which were deemed “minor”, sustained during a 10-year career, with the acknowledgment that some of the former player’s injuries might require further attention. Although a knee injury ended Roos’ 2014 season after just five games, the Titans maintained that his “marketable talents, skills and physical abilities were not diminished by the subject injuries” and that his retirement was “voluntary.”

Court affirms judgment on $680,000 verdict against non-subscribing employer – Texas

An appellate court has upheld most of a $780,000 jury verdict against a workers’ compensation nonsubscriber, and awarded $680,000 to an injured worker who was struck by a bundle of large-gauge wire used to make springs at the employer’s facility. The employer had two reels for containing the wire – a company-made reel and another reel manufactured by Spectral Systems. The latter had two safety mechanisms to prevent this sort of accident; the company-made reel did not and, therefore, jurors could have concluded that the defendant did not act as a reasonable employee. Katy Springs & Mfg., Inc. v. Favalora, 2015 Tex. App. LEXIS 9027

Injured restaurant worker denied lifetime comp benefit – Texas

An injured worker who suffered a back injury cannot receive lifetime workers’ compensation benefits because her claim was not directly related to her work accident, the Supreme Court has ruled. The case involved a cook who worked for a Kona Kreek restaurant in El Paso and injured her left knee and back after falling at work in 2004. She underwent back surgery and knee surgery, but continued to experience pain and numbness in her legs. She was unable to perform light duty because of pain and sought lifetime income benefits in 2009, claiming that her 2004 injury caused the total, permanent loss of the use of her feet based on her continued pain. While lower courts agreed, the Supreme Court overturned, finding that injured workers can only receive lifetime comp benefits for body parts that were directly injured in the worker’s accident. Further, pain alone is not an injury because it is not damage or harm to the physical structure of the body.


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