Legal Corner

ADA
Essential job functions must be proven

Camp v. Bi-Lo involved an employee who was a grocery stocker for 38 years in spite of a bad back. He worked the night shift and there was an informal agreement with two co-workers that they would help him with extremely heavy packages.

One night, the work was not complete because of the volume of heavy packages and the employee was ordered to have a medical exam. The doctor concluded the employee could lift 10 pounds all the time, 35 pounds frequently, but never more than 35 pounds. Although a job description was written in 2007 (almost 30 years after he was hired), neither he nor his coworkers had seen it. Bi-Lo argued lifting 60 pounds was an essential job function and told him to use up his sick leave days so he could to receive his salary until he turned 62 and was eligible for Social Security payments.

The employee filed both an ADA and age discrimination case. The district court granted summary judgment to Bi-Lo on both charges, but a 2-1 majority of the 6th Circuit overturned both rulings. The issue on appeal came down to whether heavy lifting was an essential job function; his supervisor and co-workers all testified that heavy lifting was only a very small part of the job. “There is no evidence in the record of what the job description was for “stock clerk” in 1974 when he was first hired. The workers on the third shift testified that they had never seen a job description for stock clerk before this litigation. It appears that Bi-Lo looked only to the job description to render its opinion that heavy lifting was an “essential function” of the stock clerk position.”

The majority also ruled that even if lifting 60 pounds was essential to the job, Bi-Lo failed to consider reasonable accommodations both generally, and in the form in which the co-workers had helped over the years.

Takeaway: This case emphasizes the importance of considering not just the written job description but what actually happens in the workplace. It also demonstrates why supervisors should be involved in termination decisions and the importance of understanding their viewpoint before a case goes to court.

Workers’ Compensation
Employers must protect workers from secondary asbestos exposure – California

Considering two cases, Haver v. BNSF Railway Co. and Kesner v. Pneumo Abex, LLC, the state Supreme Court ruled that employers have a duty to protect the families of employees from “take-home exposure” to harmful substances that its employees came into contact with at work.

Employer cannot compel employee to produce video of IME exam – Florida

In Medina v. American Airlines, the 1st District Court of Appeal ruled that an employer could not compel a worker to produce a videotape of an examination by an independent medical examiner because the videotape constituted a privileged work product. Overturning a ruling by a judge of compensation claims, the court noted that materials prepared in anticipation of trial are normally protected from compulsory disclosure.

Temp workers cannot sue employer’s client or employee of client for auto accident – Illinois

In Morales v. Herrera, two employees of a temporary agency were assigned to work for Radio Flyer. While passengers in a vehicle being driven by a Radio Flyer employee and traveling from one worksite to another, they were injured in an accident. They collected workers’ comp from the temp agency but sued Radio Flyer and its driver for negligence. The courts ruled that the injured employees were “borrowed employees” of Radio Flyer, so the Workers’ Compensation Act barred them from seeking additional payment from the company or their co-employee.

Volunteer work incidental to employment and compensable – Indiana

In John C. Morris v. Custom Kitchen & Baths, a general contractor performed volunteer work for his church and the Boy Scouts that often led to more work for his professional contracting business. While doing a volunteer project for the Boy Scouts, he fell from the roof of a storage shed and fractured his right leg, resulting in three separate surgeries. His sole proprietor’s workers’ comp carrier, the church’s liability carrier and the Boy Scouts’ insurance carrier all paid money on his behalf.

He then filed an application for adjustment of claim with the Indiana Worker’s Compensation Board but was denied because he had failed to meet his burden of showing that his injuries arose out of and occurred in the course of his employment. The decision was reversed by the Court of Appeals, which found he had demonstrated “a sufficient connection between his interests in improving his business by conducting community service projects and his sole proprietorship.”

Odd lot doctrine used to uphold PTD award – Nebraska

In Hostetler v. First State Bank, the Nebraska Court of Appeal upheld an award of permanent total disability benefits to a bank employee for her fall, injuring her coccyx and sacrum. Her doctor limited her to working no more than four hours per day since the job was sedentary.

The “odd-lot” doctrine provides that permanent total disability (PTD) benefits may be awarded to workers who are not completely incapacitated for work but are so handicapped that they will not be employed regularly in the labor market. Recognizing that the worker had been diligent in her use of pain alleviation techniques, a trial judge found her permanently and totally disabled under the odd-lot doctrine.

Entitlement to comp benefits end after settling civil suit – New York

In Shiner v. SUNY At Buffalo, a university employee was collecting comp benefits for post-traumatic stress and a neck injury after her supervisor allegedly groped her at a holiday party. She later filed a civil suit against the university and her supervisor, which was settled for $255,000. The comp carrier filed a petition asserting the injured employee was not entitled to benefits as of the date of the settlement because she had not obtained consent for the settlement, which is required for settlements of a third-party action. Although the settlement was with her employer, the intent of the law is to provide a carrier with reimbursement whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits, according to the court.

Alternative suitable employment after work injury – North Carolina

In McKnight v. Lowe’s, a 31-year-old worker at Lowe’s, who had begun as a cashier and worked her way up to a manager, suffered an injury to her neck and shoulder and had permanent lifting restrictions. The company initiated vocational rehabilitation services, but she was unable to find employment and eventually she was offered a modified job as a cashier, which her doctor approved and which paid about $150 less per week than the manager’s job. She refused to return to the position, fearful it would require her to exceed her lifting restrictions.

Lowes then filed to terminate or suspend her workers’ compensation. This request was granted by the deputy commissioner and later the commissioner, but the appellate court vacated, arguing there had not been sufficient fact-finding. The employer had not shown the position offered actually existed in the labor market and did not constitute “make work and that other employers would hire for the same type of work.” The case was remanded back to the lower court for further findings.

Employer’s subrogation rights include medical expenses as well as indemnity benefits – Pennsylvania

In a close decision, Whitmoyer v. WCAB (Mountain Country Meats), the Commonwealth Court ruled that an employer’s subrogation rights against a worker’s third-party recovery include medical expenses as well as indemnity benefits. The worker had suffered an injury that resulted in the amputation of his right arm at the forearm and eventually settled his claim with a lump sum of $69,995 and a promise of ongoing medical care.

Five years later, the injured employee and his employer entered into a settlement with the third parties allegedly blamed for the accident for $300,000. After adjusting for legal costs and the lien owed to the employer, there was a balance of $189,416. The settlement agreement provided the employer could use this balance as a “credit against future workers’ compensation payable,” but Whitmover noted he did not believe it could be used to reimburse his employer for medical bills.

Thirteen years later, the employer filed a petition to modify the terms of the third-party settlement agreement and specifically allow for it to use the $189,416 for medical expenses. Whitmoyer argued that “future installments of compensation” could not include medical benefits since they are not paid in that fashion. Also, allowing a credit for future medical expenses would make the injured worker responsible for the remainder of the medical bill, something specifically precluded.

The courts disagreed and on a 4 – 3 decision, the Commonwealth Court noted, “an employer, innocent of negligence, is entitled to a subrogation credit up to the full amount of a claimant’s recovery.”

Injured worker doing unasked favor for employer entitled to benefits – Pennsylvania

In Grill v. Workers’ Compensation Appeal Board (U.S. Airways), the worker was at his job, on work time, and was helping his coworkers move a locker he brought from home to replace a battered one the employer had been using. No supervisor had authorized or was even aware of this project. While moving the locker, the worker suffered shaft fractures in his fourth and fifth metacarpals, which required surgical treatment.

When the claim was denied, a WCJ and the WCAB affirmed that the employee was not in the course and scope of employment. But the Commonwealth Court reversed, noting that while the employee was not performing his normal duties, the continuity of the employment was not broken nor did the action constitute abandonment. The actions of the injured worker were not for his personal benefit, nor the benefit of a coworker, and were undertaken with the honest attempt to benefit his employer; therefore, it was within the scope and course of employment.

PTD benefits for migraines approved in spite of AMA Guides – Tennessee

There was sharp disagreement in the medical evidence testimony presented in Patton v. Paris Henry Cnty. Med. Clinic. An X-ray technician contended her migraine headaches were triggered by exposure to chemicals at the medical clinic where she worked. The AMA Guides (6th edition), assigned only maximum five percent impairment for migraine headache conditions, but the trial court gave little weight to this and found the technician permanently and totally disabled. This was affirmed by the Special Workers’ Compensation Appeals Panel of the state Supreme Court.

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