Legal Corner

ADA

Case to watch: Do employers have to offer disabled employees reassignment to another job if there are more qualified candidates?

In December, the 11th U.S. Circuit Court of Appeals (covering Florida, Georgia, and Alabama) ruled in EEOC v. St. Joseph’s Hospital Inc. that the ADA “does not automatically mandate reassignment without competition.” The ruling conflicts with other appellate court decisions, and legal experts speculate that it is an issue likely to be heard by the U.S. Supreme Court.

St. Elizabeth’s Hospital had a best-qualified applicant policy in place and the court found the ADA only requires that an employer allow the disabled employee to compete equally for a vacant position. The EEOC argued that the hospital violated the ADA by requiring the nurse to compete for a vacant position she was qualified to perform. The court stated, “[p]assing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficient or good performance.” Further “‘the ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.”

The conflicting appellate court rulings on the issue means employers’ obligations will vary depending on the circuit in which they operate.

Broken arm can be considered disability

A U.S. District Court refused to dismiss a discrimination charge filed by a worker who was terminated after she continued to need accommodations for her broken arm, a work-related injury. She worked for Kingsport, Tennessee-based Eastman Chemical and tripped and fell and broke her arm, requiring two surgeries. The company put her on light-duty assignment but eventually terminated her arguing it could not accommodate her temporary activity restrictions on an ongoing basis because there were several essential job duties she could not perform. The worker filed suit under the ADA.

The court refused to dismiss her case noting, “pertinent inquiry is not whether plaintiff’s restrictions were labeled ‘temporary’ or ‘permanent’ or the precise length of time she was under restrictions, but whether she was essentially limited in a major life activity.”

 

FMLA

Failure to provide a fragrance-free work environment does not equate to a failure to provide a reasonable accommodation

In Alanis v. Metra, an employee began suffering from a variety of fragrance-sensitivity symptoms such as difficulty breathing and speaking after ten years on the job. She was seen by her employer’s medical provider who concluded that she could return to work but gave her 30 days to obtain a psychological clearance exam. A week later, she again experienced symptoms and claimed that she was unable to speak and could only communicate through text messages, in writing or by whispering and was determined to be “medically disqualified” from working.

She took FMLA leave and a few months later her treating physician released her to work. However, she had not had the psychological clearance exam and when she did she was diagnosed as having a fragrance sensitivity, but was allowed to return to work a few months later.

The company made every effort to accommodate her requests for accommodation, which included flexible work hours, a modified dress code, limitation on extended talking, periodic rest breaks, self-paced work-load, and efforts to create a fragrance-free workplace. But she was not satisfied and filed suit, alleging discrimination based on the fact that she was Hispanic and retaliated against because of her disability.

The District Court for the Northern District of Illinois found that there was no evidence of discrimination or retaliation because no adverse employment action was taken. Furthermore, the Court found that the company had gone above and beyond to grant her requests for accommodation, specifically noting the changes made to reduce the existence of odors in the workplace.

Workers’ Compensation

Court supports DWC action suspending providers linked to fraudulent activities from workers’ comp system – California

Chiropractor Michael Barri, his company, Tri-Star Medical Group, and a newly formed nonprofit called the Coalition for Sensible Workers’ Compensation Reforms, filed a constitutional challenge seeking a peremptory or alternative writ of mandate blocking the state from suspending providers from the workers’ comp system and staying their medical liens when the providers are linked to fraudulent activities. Barri pled guilty to receiving illegal kickbacks to refer patients to Pacific Hospital during the spinal surgery kickback scheme.

The First District Court of Appeal took only two days in rejecting the request. The Division of Workers’ Compensation is moving to suspend providers and stay liens under new authority granted to it by the passage last year of SB 1160 and AB 1244.

EMA’s opinion that goes beyond the scope of the issues should be considered – Florida

In Hillsborough County School Board v. Kubik, the 1st District Court of Appeal ruled that a Judge of Compensation Claims erred in refusing to consider the opinion of an expert medical advisor (EMA) as to the cause of a worker’s need for medical treatment, and in denying the worker temporary total disability benefits. While the EMA had not been asked to evaluate the major contribution cause of the need for ongoing treatment, the court noted an EMA’s opinion that goes beyond the scope of the issues is admissible but not afforded a presumption of correctness.

Former Congressman collecting $100,000 annually in workers’ comp for bipolar disorder – Illinois

According to the Chicago Tribune, former U.S. Rep. Jesse Jackson Jr., who was convicted of looting thousands of dollars from his campaign fund, is receiving a little more than $100,000 in worker’s compensation payments. Quoting Chicago attorney Barry Schatz, who is representing Jackson in a divorce proceeding, the article notes that the benefits are temporary total disability for bipolar disorder and depression.

The Federal Employees’ Compensation Act gives workers’ compensation benefits for disability “due to personal injury or disease sustained while in the performance of duty,” the Labor Department said. An employment lawyer speculated that Congressman Jackson’s attorneys convinced the government that his bipolar disorder was created by the rigors of being a member of Congress,

Inadequate urine sample did not constitute drug test refusal – Kansas

An employee who was struck in the left arm by an object while grinding a piece of metal was treated at an emergency room and returned to his employer to submit a post-injury urine sample. However, he did not provide enough urine to complete the test and the test administrator threw it away.

Lower courts found that the employee forfeited his benefits by failing to complete the drug test, however the appeals court disagreed. Kansas workers’ comp law says that “refusal to submit to a chemical test at the request of the employer shall result in the forfeiture of” workers’ comp benefits if the employer “had sufficient cause to suspect the use of alcohol or drugs by the claimant or if the employer’s policy clearly authorizes post-injury testing.” The court found no evidence that the employee had been under the influence of alcohol or drugs at the time of the accident and had volunteered to take a drug test while he was at the hospital. Kelley v. Aldine Indep. Sch. Dist., 2017 Tex. App. LEXIS 829 (Jan. 31, 2017)

Psychologist’s testimony valid in workers’ comp denial – Minnesota

In Gianotti v. I.S.D. 152, A16-0629, the Minnesota Supreme Court overturned a decision of the Workers’ Compensation Court of Appeals (WCCA) that the opinion of a psychologist was inadequate to support the denial of a worker’s claim for mental conditions allegedly caused by a concussion and post-concussive syndrome. The employee worked as a school bus monitor and fell and hit her head when the bus stopped short unexpectedly. Medical tests did not reveal a concussion, but she continued to complain of headaches, confusion, and memory problems and eventually sought psychiatric treatment.

While a judge denied the claim for a variety of emotional and psychological conditions, the WCCA questioned the competence of the psychologist as an expert witness, an issue that was not raised on appeal, and awarded benefits. The Supreme Court overturned this ruling noting the scope of the jurisdiction of the WCCA is limited to the issues raised by parties in their notices of appeal and that the psychologist’s opinion had as solid a factual foundation as any other expert in this case.

 

Failure to find work does not mean unemployable – Mississippi

The employee was a grinder and injured his right hand. Following an operation, he was released to work with restrictions, which did not allow him to work as a grinder. He performed largely janitorial and maintenance duties, but at one point was asked to operate a forklift. This irritated the hand and his physician advised him not to do so. When he was asked again, he refused to do so, and was placed on leave and given three days to obtain a written work restriction.

When he did not produce the work restriction, he was fired for insubordination. He filed a petition seeking a higher permanent medical impairment and eventually received a 50% loss rating, which he argued was too low given his permanent work restrictions. However, the Court of Appeals found that he was able to do other substantial job duties and had worked for almost a year after he was declared to have reached maximum medical improvement. Although he had been unsuccessful in finding another job after he was let go, this did not mean that he was unemployable. Harold Hathorn v. ESCO Corporation

Worker fired for failing to report medical only claim can collect unemployment – Mississippi

Although most states protect workers once they are hired from being fired if they file a comp claim, Mississippi does not. In Bedford Care Center of Marion v. Nicholson, the question for the Court of Appeals was whether unemployment benefits are available to a worker who was fired for having misrepresented her claims history. In a previous job, the worker received medical care for her injury in the hospital emergency room, but no indemnity benefits and she argued she did not realize medical benefits were workers’ comp.

While lower courts found she was fired for misconduct and not entitled to unemployment benefits, the Court of Appeals concluded that her inaccurate answers did not rise to the level of “willful and wanton” misconduct necessary to forfeit her entitlement to unemployment benefits.

Employee may sue colleague for work accident – Missouri

A restaurant worker climbed an A-frame ladder into a lofted space at the restaurant and while she was working there, a coworker removed the ladder. The coworker returned the ladder, but did not fully open and lock it. The ladder collapsed and the worker fell and injured her hand, elbow, and shoulder.

While the St. Louis County Circuit Court dismissed a negligence lawsuit, a three-judge panel of the appellate court disagreed, noting that a 2005 amendment to Missouri’s workers comp law “only gives employers immunity against tort claims for work-related injuries and does not afford such immunity to co-employees.”

Suicide bars survivor benefits – Nebraska

A woman who overdosed on drugs prescribed in connection with a workplace injury is not eligible for workers’ compensation survivor benefits, a state appeals court ruled. For five years, she was taking the opioids oxycodone and methadone, along with the sedative Xanax. Shortly before her death, she was told she would lose custody of her daughter and she no longer could live with relatives. She was overheard saying, “I just as well end it all.”

The trial court ruled that the overdose constituted “willful negligence and thus barred any recovery of benefits,” and the Court of Appeals affirmed. Michael B. v. Northfield Retirement Communities

Medical marijuana reimbursement required for comp claim – New Jersey

In Watson v. 84 Lumber, a New Jersey administrative law judge ordered Beaumont, California-based 84 Lumber Co. to reimburse one of its injured workers for medical marijuana prescribed for neuropathic pain in his left hand after an injury suffered while using a power saw at a lumber plant. The medical marijuana was being used to help wean the worker off of opioids. This is a division level case, so this decision is not binding on other New Jersey courts.

Other states that have allowed comp payments for medical marijuana include New Mexico, Maine, Connecticut and Minnesota. In most of these cases, physicians only recommended marijuana after other treatment regimens for chronic pain were attempted without success.

Cautious language of medical expert dooms claim for stress-related stroke – New York

In Matter of Qualls v Bronx Dist. Attorney’s Office, 2017 N.Y. App. Div. LEXIS 409, a state appellate court affirmed the Workers’ Compensation Board’s determination that a worker did not sustain a causally related disability resulting from his stroke because his physician repeatedly used cautious and indeterminate language, such as stress “may have been” or “could’ve been a contributory factor.” While the court acknowledged that the law did not require that medical opinions be expressed with absolute or reasonable medical certainty, the expert must signify a probability as to the cause and his or her opinion must be supported by a rational basis.

“Last act” in employment contract key in determining workers’ comp jurisdiction – North Carolina

An Oklahoma-based union hall of a welder who lived in North Carolina sent her a notification to report to an assignment in Texas, where she was to undergo a drug test and complete forms when she arrived. The North Carolina Industrial Commission ruled it did not have jurisdiction to hear her injury claim since her injury occurred outside North Carolina and under North Carolina’s “last act” test, her employment contract was made in Texas, and not in North Carolina. Submission to the drug test was more than an administrative formality, had she not passed, she would not have been hired. Holmes v. Associated Pipe Line Contrs., 2017 N.C. App. LEXIS 52

Off-duty convenience store clerk due comp benefits – Pennsylvania

The Commonwealth Court panel has ruled that a convenience store clerk who is permanently disabled is eligible for workers’ compensation after being shot several times while sitting in his supervisor’s parked car outside of the store after the pair had just closed up shop. Earlier in the week, he had called the police on a shoplifter, whose relatives threatened retaliation, so his supervisor had been driving him home.

The Commonwealth Court panel upheld the decision of the workers’ compensation judge, saying that the shooting was retaliation-related. The court also said that the spot he was parked in constituted the employer’s property, at a location that was a reasonable means of access and egress to employer’s store, and he was within the course and scope of employment while he was in the car.

Exception to going and coming rule applies for sick employee – Pennsylvania

In Lutheran Senior Services Management Company v. Workers’ Compensation Appeal Board (Miller), the Director of Maintenance for a nursing home had a serious motor vehicle accident while going into work. At times he was called in for emergencies and received “comp time.” On this particular day, he was sick and planned to call in, but his employer called that a security camera had malfunctioned and needed to be fixed and no one else was available to do so.

While the carrier denied the claim arguing that he was commuting, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, noting “Claimant was sick on March 13, 2014, and except for the special need of the Employer to assure [that the] surveillance cameras became operative . . . Claimant would not have gone to work.” This would represent an exception to the “coming and going rule.” Upon appeal the Workers’ Compensation Appeal Board (WCAB), affirmed the decision of the WCJ but felt the facts represented more “special circumstances” than a “special mission,” but, still met an exception to the “coming and going rule.” The Commonwealth Court affirmed.

Third party recovery limited to injuries caused by negligence – Pennsylvania

In Serrao v. WCAB (Ametek Inc.), the Commonwealth Court ruled that an employer is not entitled to recovery of the full amount of its comp lien from a worker’s settlement unless the employer can prove the third party was responsible for all of the worker’s compensable injuries. An employee, wearing protective overalls, suffered burns when a can of powder ignited and caused a flash fire. The employee filed a third party suit against the manufacturer of the coveralls and received a $2.7 million settlement, and the employer asserted a lien against the recovery for all of its costs related to the injury.

There was a dispute if the costs related to burns to his hands and head caused by the melting of his gloves, face shield and hood should be included. The case made its way to the Commonwealth Court that concluded an employer has the burden of proving its obligation to pay comp benefits was caused by the negligence of the third-party tortfeasor and that the tortfeasor’s payment of damages are for the same injuries for which the employer paid benefits.

How a carrier can exercise its subrogation rights – Pennsylvania

In The Hartford Insurance Group on behalf of Chunli Chen vs. Kafumba Kamara, Thrifty Car Rental, and Rental Car Finance Group, the court considered how a carrier could go after a culpable third party. A carrier wanting to exercise its subrogation rights cannot force the issue by bringing a third party action on its own. Chen was waiting to rent a car in the Thrifty Car rental parking lot when Kamara accidentally hit her with one of Thrifty’s rental vehicles. Through her employer’s workers’ comp, Hartford paid almost $60,000 in medical and wage benefits. The Hartford filed a tort action against Kamara and Thrifty, asserting their negligence was responsible for Chen’s injuries, but Chen had not assigned her cause of action to Hartford and was not a party to the lawsuit.

Although a judge dismissed Hartford’s complaint, the Superior Court ruled that the case could proceed. The court noted that the Hartford was not pursuing a subrogation claim on its own behalf – it was seeking to establish the defendants’ liability to Chen. Because the carrier also was not limiting its requested recovery to the value of its subrogation claim, the court reasoned that it was not impermissibly “splitting” the cause of action Chen would have had. It’s important for carriers to use the right language in the complaint to make it clear that it is bringing the employee’s suit.

In this case, Chen is cooperating with Hartford’s effort to obtain recovery, but did not want to pursue the claim on her own. Such action could be more difficult in cases where a recalcitrant employee does not want to cooperate.

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