Legal Corner


Bully manager terminated after FMLA leave loses suit

A manager for Tyson Foods with a long history of progressive discipline for bullying subordinates was terminated after he intimidated and was condescending toward others around him and undermined a supervisor. He sued alleging that Tyson terminated him, in part, because he had just taken FMLA leave a few weeks earlier. Recognizing that Tyson would have terminated him even if he had not taken FMLA leave, the courts dismissed the retaliation claim. Shell v. Tyson Foods, Inc.


Workers’ Compensation

Injured employee must transfer treatment to the ADR agreement’s exclusive provider network – California

In Ramirez Farias v. Able Building Maintenance, 2016 Cal. Wrk. Comp. P.D. LEXIS, an employee who suffered an industrial injury to her neck, back, right wrist, and right shoulder was treating outside of an alternative dispute resolution (ADR) agreement when her claim was denied. After her claim was accepted, the WCAB, in a split panel opinion, found that she was required to transfer treatment to the ADR agreement’s exclusive provider network pursuant to the provisions in Labor Code § 3201.5 and the terms of the ADR agreement.

For commentary.

Must be “convicted” for felony to preclude benefits – California

In Ease Entertainment v. Workers’ Compensation Appeals Board, a first assistant director was denied access to shoot footage on a train trestle in Georgia, but she did it anyway with catastrophic results. While shooting, a train hit the film set causing one crewmember’s death and injuring several others. The director was charged with and found guilty of both manslaughter and criminal trespass and was placed on probation through Georgia’s First Offender law. No conviction is recorded if she passes probation.

She filed a claim for psychiatric injury under California’s workers’ compensation laws and was denied because her injury occurred during the commission of a felony; however, both the WCJ and the WCAB ruled that a conviction for felony is required to bar a psychiatric claim and she was not “convicted.”

Asbestos-laden product supplier must show that it actually and reasonably relied on a knowledgeable intermediary to warn end users – California

The Ninth Circuit vacated a summary judgment award in favor of two asbestos-laden product manufacturers accused of causing a Navy machinist’s lung disease and death and gave the family’s lawsuit new life. The two Virginia-based defendants, General Dynamics Corp. and Huntington Ingalls Inc., used the government-contractor defense, but the high court held that a product supplier must show that it actually and reasonably relied on a knowledgeable intermediary to warn end users in order to establish a defense under the sophisticated-intermediary doctrine.

Average weekly wage (AWW) must include prior part-time work – Florida

In Great Cleaning Corp. v. Bello, an employee had worked full-time for three weeks and part-time for 13 weeks prior to her injury. An appellate court found that although she would have earned a higher wage had she not been injured, her AWW had to be computed using the 13-week method set forth in § 440.14(1)(a), Fla. Stat. (2003).

Employer must pay 25% attorney fee of third-party recovery, including value of future medical care – Illinois

In Bayer v. Panduit Corp.Area Erectors, 2016 IL 119553, 2016 Ill. LEXIS 772 (Sept. 22, 2016), the Supreme Court of Illinois ruled that absent another agreement, the gross amount of reimbursement subject to attorney fees includes not only benefits already paid at the time of the third-party recovery, but the benefits the employer will not have to pay in the future as a result of the worker’s recovery in the third-party action.

Exclusive remedy prevails in intentional-tort exception case – Michigan

In Barnes v. Sun Chemical Corp., a worker was killed when a 1600-pound bag of press cake fell from a mezzanine while being stacked by a forklift operator. The deceased employee’s estate sought the intentional-tort exception, arguing that the employer knew employees used a particular forklift method that contributed to the accident and also knew that employees walked in the restricted area beneath the mezzanine.

However, the Sixth Circuit Court of Appeals affirmed summary judgment in favor of the employer, “An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.”

Exclusive remedy does not bar suit against co-worker for negligent operation of forklift – Missouri

In Fogerty v. Armstrong, 2016 Mo. App. LEXIS 925, an appellate court held an employee could maintain a tort action against a co-employee who was allegedly negligent in the operation of the employer’s forklift. In most cases, injuries incurred in the course and scope of employment would fall within the employer’s duty to provide a safe workplace and co-workers would be immune. However, under the state’s co-employee immunity rule, an employee who violated a personal duty of care separate from the employer’s duty to provide a safe workplace can be held liable. In this case, the co-worker did not operate the forklift in a safe manner, by lowering the forks without taking any steps to warn or protect the injured employee.

State Supreme Court upholds finding of permanently and totally disabled in forklift injury – Nebraska

In Nichols v. Fairway Bldg. Prods., a forklift operator injured his back when the hydraulic lift dock that supported the forklift collapsed. At first, the injuries did not appear serious and he tried several non-surgical treatments without success and eventually underwent three surgeries. At maximum medical improvement, he had significant permanent physical restriction. While the employer argued the worker had suffered from some injuries prior to his work accident, the Workers’ Compensation Court entered judgment in favor of the employee, finding him permanently and totally disabled as a result of his workplace injury. Nebraska Supreme Court affirmed, but did modify the award of temporary total disability.

Appeals court reverses asbestos-related decision – North Carolina

In Richardson vs. PCS Phosphate Company an employee was exposed to asbestos during his employment and filed a workers’ compensation claim in 2009 against PCS alleging asbestos related medical conditions including mesothelioma and cancer. The appeals court determined that because the occupational disease was mesothelioma and not asbestosis or silicosis, the date on which he was last injuriously exposed to the hazards of mesothelioma is calculated by determining the “exposure that proximately augmented the disease to any extent, however slight.” Therefore, the Full Commission erred by concluding that last injurious exposure for mesothelioma required exposure “for a period of 30 days, or parts thereof, within seven consecutive calendar months.”

Guillain-Barre syndrome contracted as result of flu shot compensable – Pennsylvania

In Phillips v. Wyman Gordon, the Pennsylvania Workers’ Compensation Appeals Board affirmed the workers’ compensation judge’s decision awarding benefits to a worker, who alleged that he contracted Guillain-Barre syndrome after receiving a flu shot at work. It agreed that the flu shot at work arose in the course and scope of employment, although the shot was voluntary and there were no benefits denied or received as a result of receiving the shot. The treating doctor testified that the machine operator’s condition was caused by the flu shot because there were no other potential causes identified and that GBS is one of the risk factors of a flu shot.

510 pills per month 20 years after MMI warrants change in physician – Tennessee

In Russell v. Dana Corp., 2016 Tenn. LEXIS 520 (Aug. 1, 2016), aff’d and adopted, 2016 Tenn. LEXIS 519 (Aug. 1, 2016), a Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee held that a state trial court erred when it denied an employer’s motion to remove an injured employee’s treating physician. The evidence showed that while the employee had achieved MMI more than 20 years earlier, the employee’s physician was still prescribing some 510 pills each month, many of which were Schedule II controlled substances.

Employer may terminate an at-will employee unable to perform satisfactorily because of physical infirmity caused by on-the-job accident – Tennessee

In Cantrell v. Yates Servs., LLC, an employee missed 20 consecutive days of work and both parties agreed he was unable to perform the functions of his job. The federal district court found that under Tennessee law, an employer may terminate an at-will employee who is unable to perform satisfactorily because of physical infirmities, even though the physical infirmity resulted from an on-the-job compensable accident.

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