Legal Corner

Shift hours not necessarily an “essential function”

This case involved a nurse with a brain tumor who had worked successfully on 8-hour shifts. The hospital changed its shift practices to 12-hour shifts and denied a request from the nurse’s doctor that she be allowed to continue 8-hour shifts for medical reasons. The hospital argued that the new 12-hour shift practice was an essential function because there would not be proper team coverage for the four hours of each shift that this employee could not work, if an exception was made.

The court referred the matter to a jury, finding the nurse had presented enough evidence to question whether the hospital could make an exception to the shift requirement as an accommodation for her, including that varying shifts had worked in the past. There was also an issue whether the employer fully engaged in the interactive process required by the ADA. Karen M. Roberts v. Bayhealth Medical Center, Inc.

Denying FMLA leave to deal with difficult employee not a good idea

A difficult tool and die designer at Wisconsin-based Brunk Industries Inc, whose behavioral problems weren’t adequately addressed, requested FMLA leave because his son was suffering from mental health issues and he needed to arrive late or leave early to get his son to and from school. His manager told him he was expected at work because the company paid for his insurance and was frustrated when he learned that the FMLA paperwork had been turned in. Three days after the employee filed the necessary medical documents, he was fired for unprofessional and inappropriate communications with co-workers. When he was fired he was extremely belligerent and escorted by the police. The court observed that the employee was never warned that he could be fired if he continued to be combative with co-workers and sent the case to a jury.

Professional pointer: In this case, the employee’s past behavior was not well documented, no warnings were issued, and the manager expressed opinions about eligibility for FMLA leave. More training is clearly needed. Hefti v. Brunk Industries, No. 14-C-729 (E.D. Wis. 2015)

Workers’ Compensation
Employee must be fully compensated before employer’s subrogation lien – Georgia

Unlike many other states, the subrogation lien of a Georgia employer and/or its insurer attaches to third-party recovery by the injured employee only after the injured employee has been fully and completely compensated for his economic and noneconomic losses. In Best Buy Co. v. McKinney, an appellate court ruled that the employer had failed to meet its burden of proof that an injured employee had been fully and completely compensated for his losses following a forklift accident in which the employee suffered several facial bone fractures and brain damage.

Mental health practice not liable in injured worker’s suicide – New York

A New York mental health practice that evaluated and treated an injured worker in relation to a workers’ compensation claim cannot be held liable for that worker’s suicide, an appellate court ruled. A sanitation worker, who was injured in 2002, became increasingly depressed due to his injury and his inability to work. He began receiving treatment from a psychiatrist in 2005, was prescribed psychiatric medications, but continued to complain of pain, depression, paranoia and other symptoms. In 2008 he fatally shot himself and his wife sued the medical practice, arguing the practice had not created a treatment plan. The court found that the doctor acted appropriately in relation to the workers’ comp claim. Muth v. Mohammad

Hand sanitizer allergy nets nurse 90 percent wage loss – New York

A nurse at Good Samaritan Hospital was making $2,300 a week when she developed serious respiratory problems and had to be hospitalized. She sought and received workers’ compensation when it was determined she was allergic to the hand sanitizer at work. However, she did not recover completely and had a chronic cough triggered just by talking, so it was difficult for her to go back to her nursing duties. She began working part-time as a cashier, making $8 an hour for 20-25 hours of work a week. An appellate court ruled that she sustained a causally related 90 percent loss of wage-earning capacity since the employee’s wage-earning capacity was based upon her actual earnings at a department store and where there was overwhelming medical evidence that her condition was an impediment to her ability to perform her job as a nurse. Baczuk v. Good Samaritan Hosp.

Burden of rebutting compensability and futility of finding employment rests with employers and insurance carriers – North Carolina

A city of Greensboro 62-year-old employee was in an automobile accident and suffered several injuries, for which he received benefits. He later sought treatment for anxiety and depression, which the court found to be causally related to the accident. The Court of Appeals also found that the City had not carried its burden to show that suitable jobs were available, given the employee’s age, IQ, work history, and physical conditions as a result of the at-work injury, thus entitling him to additional indemnity benefits.

There can be only one employment contract – North Carolina

A Georgia resident signed a contract in South Carolina to be a delivery driver for US Food. When US Food merged, the South Carolina office closed and the driver opted to transfer his assignment and supervision to North Carolina. He suffered a back injury during a delivery in Georgia and the question of jurisdiction made its way through the courts. The Supreme Court reversed the Court of Appeals holding that modification of an employment contract does not change the location of that contract. The Court indicated that there can be only one contract of employment – in South Carolina. Burley v. U.S. Foods, Inc., 2015 N.C. LEXIS 929 (Sept. 25, 2015)

Comp Commission to hear appeal involving employer who opted out of system – Oklahoma

An appeal from a Dillard’s Inc. employee over denied injury work benefits should be heard by the Worker’s Compensation Commission, even though Dillard’s has opted out of the state’s workers’ compensations system, a federal court ruled. Under their alternative benefit plan, Dillard’s denied the claim, in part, because physicians diagnosed the injury as an aggravation of a pre-existing injury.

While Dillard’s argued that the workers’ comp commission should not have jurisdiction over its benefit determination, the court found that the Employee Injury Benefit Act states that injured employees of non-subscribing employers can appeal benefit determinations to an en banc panel of the workers’ comp commission.

Restaurant franchisor not responsible for comp benefits of uninsured franchisee’s injured worker – Pennsylvania

In Saladworks, LLC v. Workers Comp. Appeal Bd. (Gaudioso), the Commonwealth Court of Pennsylvania found that a franchisor was not a statutory employer for employees of a franchisee, since the business conducted by the two companies is not the same. A restaurant franchisor’s main business was the sale of franchises to buyers desiring to use its name and expertise – not the actual operation of restaurants. The benefits were the responsibility of the state’s Uninsured Employers Guaranty Fund.

Comp award to caregiver mother injured by son overturned – Pennsylvania

In February 2014, we discussed a Commonwealth Court decision awarding benefits to a woman employed under a state-funded program to provide full-time attendant care services at her residence for her adult son, who attacked her with a knife while she slept. Recently, a divided Supreme Court of Pennsylvania held that the Commonwealth Court erred and the injury was not in the course and scope of her employment. Her employment contract and job description did not require her to work late-night shifts, provide 24-hour care, or be on call for her son’s needs since her son did not qualify to receive funding for an overnight caretaker. O’Rourke v. Workers’ Comp. Appeal Bd. (Gartland), 2015 Pa. LEXIS 2420 (Oct. 27, 2015)

Toyota forklift seller not liable for lack of safety features – Pennsylvania

A judge of the Eastern District of Pennsylvania said in a memorandum opinion that Kenco Toyota Lift was not negligent in selling a forklift without the optional backup alarms, strobe lights and rearview mirrors that injured an employee of Jet Plastica. However, the judge did not dismiss the case entirely, ruling that a jury had to determine whether the lack of standard safety features on the forklift constituted a design defect. Morello v. Kenco Toyota Lift, PICS No. 15-1553

Leg injury morphs to body as a whole for benefit purposes – Tennessee

A construction worker fell from the roof of a house and injured his leg, suffering a compound fracture to his tibia and fibula in his lower left leg. The injury required three surgical procedures, including a fusion of his injured ankle, which resulted in the shortening of one leg. He asserted that his altered gait caused lower back disability and that the permanency of his injuries resulted in severe clinical depression. The initial trial court awarded 400 weeks of benefits at a weekly compensation rate for vocational disability of 90 percent body as a whole. The employer appealed saying that labeling the injury body as a whole resulted in excessive benefits. The Tennessee Supreme Court said the trial court was correct and the employee met three of the four criteria to make him eligible for excessive permanent partial disability benefits. He did not have a high school degree, he did not have transferable job skills for another occupation, and did not have any reasonable employment opportunities given his location and medical situation. Guy Ratledge v. Langley Enterprises, LLC, et al.

Ironic twist in going and coming case – Texas

A 73-year-old life-long insurance claims professional was returning home from a meeting of the Texas Political Subdivisions (TPS) board, a non-profit entity that is the insurance carrier administering the workers’ compensation benefits and other liability insurance for local governmental entities, when a car crossed the highway and hit her vehicle. She was seriously injured and had to have a leg amputation and more surgeries for other injuries. She is director of employee benefits and risk management for the Temple Independent School District and sits on the board of TPS.

While TPS reimbursed her travel expense and under the state’s Labor Code, an employee traveling for business reasons using transportation paid for by the employer is generally presumed to be at work, the insurance company considered this a “gray” area and denied benefits, generating adverse publicity. After a pre-trial process known as a benefit review conference, the Texas Division of Workers’ Compensation issued a rare “interlocutory order,” requiring immediate action, ordering the insurer to start immediately paying temporary income benefits and cover the cost of reasonable and necessary medical care. TBS plans to take the case to the contested case hearing, which is set for November. (Source: Texas Tribune)

Retaliatory discharge fails when employer’s personal leave policy was uniformly enforced – Texas

An appellate court found in favor of an employer that had been sued for retaliatory discharge where several employees suffered work-related injuries, filed workers’ compensation claims, took extended personal leave of absences, and were terminated pursuant to the employer’s personal leave policy when each employee’s leave extended beyond the number of days permitted by the employer’s written policy. The court agreed that the employees had presented no evidence to rebut the employer’s contention that it had a legitimate reason for the discharges. There was no evidence that the employer’s personal leave policy was not uniformly enforced. Brewer v. Lowe’s Home Ctrs., Inc., 2015 Tex. App. LEXIS 10532 (Oct. 14, 2015)

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