Legal Corner

Truck company’s sleep study requirement based on driver BMI upheld by eighth circuit court

The U.S. Court of Appeals for the Eighth Circuit allowed Crete Carrier Corporation’s driver sleep study testing requirement in a lawsuit challenging the practice under the Americans with Disabilities Act (ADA). Based on a medical advisory from the Federal Motor Carrier Safety Administration (FMSCA), the company established a sleep study requirement for all drivers with a Body Mass Index (BMI) of 35 or over.

A driver argued that he had a good safety record, had no documented sleep issues at work, had recently received a Department of Transportation (DOT) medical certification, and obtained a letter from his private physician questioning the necessity of the test.

Rejecting the argument that decisions to seek medical information from employees must be made on an individualized basis, the court confirmed that medical examinations may be required of a class of workers, as long as the employer has a “reasonable basis for concluding that the class poses a genuine safety risk and the exam requirement allows the employers to decrease that risk effectively.” The court concluded that the sleep study requirement was job-related “because it deals with a condition that impairs drivers’ abilities to operate their vehicles” and was “consistent with business necessity” because it would “determine whether an individual has [OSA], a condition that poses a public safety hazard.”


Workers’ Compensation
Recycler found guilty in death of employee – California

One of the state’s largest recyclers, rePlanet LLC, was convicted and found guilty in connection with the death of an employee who was crushed by a 35,000-pound earth mover. The criminal plea agreement puts rePlanet on probation for three years, calls for payment of $500,000 in restitution for the victim’s family, a $400,000 fine stayed pending successful completion of probation, and a $21,000 fine paid to the court. In lieu of additional fines, rePlanet will pay $140,000 to the California District Attorneys Association Worker Safety Training Fund, and nearly $90,000 to Cal-OSHA for fines and training costs.


Parking lot fall not compensable – Florida

In Quinn v. CP Franchising , an employee fell in a parking lot that her employer did not own but had the rights to a limited number of spaces as part of their office lease. Generally, a worker’s fall while traveling to or from her workplace is not compensable, but there can be exceptions if there are “special hazards” or while traveling between two workplaces. Since there were no special hazards and the employer did not own the lot, the exceptions did not apply.


Appeals court rules employer cannot be compelled to pay for housing and automobile insurance for a paraplegic employee that are unreasonable – Florida

In Kilyn Construction v. Pierce , a fall from a roof left an employee a paraplegic and as part of the settlement he was provided a van and paid the difference between the cost of his handicap-accessible apartment and his pre-accident housing. He lost his apartment and found a much larger home costing about three times as much. While the 1st District Court of Appeal acknowledged that the company did little to help the employee find housing, it ruled that an employer could not be compelled to pay for housing and automobile insurance without a finding that the costs demanded by the employee were reasonable.

Office worker who fell off chair denied benefits – Illinois

In Noonan v. IWCC , a worker injured his wrist when his office chair rolled out from underneath him as he was leaning over to pick up a pen from the floor. While an appellate court acknowledged that there were procedural errors by a circuit court judge and the Workers’ Compensation Commission in handling the case, it agreed with the finding that the job did not expose the worker to a greater risk of injury than a member of the public would a face in performing the same action.

Subcontractor has no viable claim against railroad – Illinois

In Carney v. Union Pacific Railroad Co., an independent contractor was engaged to remove abandoned bridges and entered into a handshake agreement with a subcontractor to assist in the bridge removal work. During the removal of one of the bridges, the subcontractor’s son suffered a serious injury, severing both legs below the knees. The subcontractor filed suit against a number of parties, including the railroad. All suits were settled except for the railroad, which went to the state Supreme Court.

According to the decision, “under the common law, one who employs an independent contractor is not liable for harm caused by the latter’s acts or omissions.” Although a hiring entity may be liable for its own negligence where it retains some control over the independent contractor, in this case the railroad did not retain control.

No loss of earning capacity nixes disability benefits for nursing supervisor – Mississippi

The state Supreme Court overturned an award of disability benefits to a nursing supervisor who injured her back in a workplace fall and missed six weeks of work. In Hudspeth Regional Center v. Mitchell , the supervisor returned to her old job but was fired seven months later for insubordination and excessive tardiness.

After losing her job, she had a functional-capacity evaluation, which found she should not lift weights in excess of 20 pounds and should avoid prolonged standing. An ALJ, the WC Commission, and an appeals court agreed that these restrictions from the injury resulted in a total loss of earning capacity. The Supreme Court disagreed since she had returned to work in the same position at the same rate of pay.

Widow recovers death benefits when husband in fatal, unexplained, one-car accident – Missouri

In Campbell v. Trees Unlimited, Inc. , 2016 Mo. App. LEXIS 942, a salesperson who drove an employer-owned vehicle, was killed in a one-car accident about seven miles from his office. He was on a route he typically used for customer visits, phone records showed he had called a customer that morning, and there was no evidence that he was conducting personal business. While the employer argued he was not in the course and scope of employment because he had not performed work that morning and “was still in transit between his home and the principal place of employment,” and an idiopathic condition was the cause of the accident, a judge, the Commission and the appellate court all agreed that the widow had met her burden of proof and awarded death benefits and funeral expenses.

Counter claims not permissible in workers’ comp cases – Nebraska

In Interiano-Lopez v. Tyson Fresh Meats , 294 Neb. 586 (2016), the Nebraska Supreme Court determined counterclaims are not permissible in workers’ compensation cases. However, the Court did imply that the employer has the option of filing a Petition to determine the rights of the parties in lieu of filing a counterclaim.

Worker forfeits benefits for hiding fact she was working – New York

In Leising v. Williamsville , an appellate court overturned a finding by the Workers’ Compensation Board that a worker had not forfeited her entitlement to benefits by concealing the fact she was holding down a job. Although the worker at one point indicated she was working at a seasonal part-time job, her attorneys later contacted the adjuster and said that she was not working and the doctors’ records showed she was not working.

The court concluded, “remittal to the board is necessary for a determination as to whether claimant’s failure to disclose her seasonal work was material, and done both knowingly and for the purpose of obtaining benefits.”

Accident reconstruction experts squash worker’s claim – North Carolina

In Yarborough v. Duke Univ. , 2016 N.C. App. LEXIS 978, two experts in biomechanics and accident reconstruction disputed a claim by a patient food service technician that a swinging door caused a torn rotator cup. While the deputy commissioner entered a finding that the injury was compensable, the appellate court noted the Full Commission, not the deputy commissioner who hears the case, is the sole judge of the credibility of witnesses. The Commission found the employer’s medical expert and the reconstruction experts’ testimony most convincing.

Commercial insurers investigation of employment status not “bad faith” refusal to pay – Pennsylvania, federal

In Bodnar v. Nationwide Mut. Ins. Co. , 2016 U.S. App. LEXIS 17903, a worker was killed in a ditch cave-in and his widow filed a tort action against the owner of a masonry business alleging negligence. In this case there was conflicting evidence about employment status and the court ruled it was appropriate for the insurer, under the business’ commercial general liability policy, to investigate whether the deceased worker was an employee under Pennsylvania law. The widow’s separate civil action for the insurer’s alleged bad faith could not withstand a summary judgment motion.

Firefighters cancer claim was time barred – Pennsylvania

In Fargo v. WCAB (City of Philadelphia), a firefighter filed a petition for benefits, blaming his work for his bladder and skin cancers. While the Pennsylvania Workers’ Compensation Act provides a presumption that a firefighter who develops cancer after being exposed to a known carcinogen has suffered a compensable occupational disease, disability or death resulting from cancer must occur or manifest within 300 weeks of the last date of exposure to carcinogens, and a firefighter must file a comp claim within 600 weeks of the last exposure. Since the claim was filed more than 600 weeks after the last day he could have suffered an occupational exposure to a carcinogen, the claim was time barred.


Staffing agency and township are both employers under “borrowed-servant” doctrine – Pennsylvania

In Nagle v. TrueBlue , a worker from a temporary staffing agency was sent to assist with garbage collection in Rye Township and was seriously injured when he stepped off the truck before it stopped. As a result of his subdural hematoma and skull fracture, he was unable to manage his own affairs and appointed a guardian. The worker died from complications of the injury and the guardian filed a civil action for negligence, wrongful death and survival against the staffing agency and township.

A judge ruled that the exclusive remedy provisions of workers’ comp protected both, but the guardian argued the staffing agency was not immune because it did not have control over the employee’s work. The Commonwealth Court found the staffing agency had to be the employer because it was responsible for providing the workers’ compensation benefits and the guardian had filed a penalty petition against them when benefits were not paid in a timely manner. Under the “borrowed servant” doctrine, if a worker’s employer passes on the right to control the work done by an employee to another party, that party becomes an employer as well.

Janitorial worker entitled to PTD benefits for foot injuries and related depression and complex regional pain syndrome – Tennessee

In Mayes v. City of Tullahoma , the Special Workers’ Compensation Appeals Panel of the state Supreme Court ruled that a janitorial worker who developed severe depression and complex regional pain syndrome after suffering two-foot injuries was permanently and totally disabled. A trial court judge found the worker was permanently and totally disabled by the combination of his physical and mental injuries. Although none of the treating doctors said that he was unable to work at an occupation that brings an income, they agreed he had chronic pain syndrome that could interfere with obtaining or maintaining employment.

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