Legal Corner

FMLA
Appeals court overturns jury verdict in favor of employer

In Cassandra Woods, Tina Hinton v. START Treatment & Recovery Centers Inc., Addiction Research and Treatment Corp, the 2nd U.S. Circuit Court of Appeals in New York reversed a jury verdict in favor of the employer in a Family Medical Leave Act (FMLA) case. According to the court the judge had wrongfully instructed the jury to apply the “but for” cause of her termination, that she would not have been terminated if she had not taken FMLA leave.

On appeal, Ms. Woods argued that she only had to establish the FMLA leave was a motivating factor in her termination, which is a lower standard. The court agreed, citing a U.S. Department of Labor rule that interpreted the statute in this way. The case was remanded for further proceedings.

Workers’ Compensation
Employer must pay $3.64 million in additional premiums based on audit classifications – federal

Aviation ground services company Servisair L.L.C., which is now a subsidiary of Cheshire, England-based Swissport S.A. L.L.C., contracted with Liberty Mutual Insurance Co. for a guaranteed cost insurance policy in which the final premium would be determined based on an audit of Servisair’s payroll classifications at the end of the policy period. The estimated premium was based on payroll information submitted by the company, which, according to Liberty Mutual, was knowingly over allocated to the inexpensive clerical classification.

The company refused to pay and argued that the policy was a product of a mutual mistake about the premium calculations and that the policy’s premium calculation provisions were ambiguous. The US District Court in Houston and the 5th U.S. Circuit Court of Appeals in New Orleans disagreed.

Exclusive remedy nixes remaining claims in NFL painkiller lawsuit – federal

A federal judge in California dismissed three remaining claims from a wide-reaching lawsuit filed by players alleging mistreatment with medications because the players had previously sought relief through workers’ compensation. The lawsuit argued that the underlying claims should be exceptions to workers’ compensation exclusivity because they were triggered by intentional acts by the teams, team doctors and trainers.

Second appellate court rules that untimely IMRs are valid – California

Recently, the 3rd District Court of Appeal (DCA) issued an unpublished decision in Baker v. WCAB (Sierra Pacific Fleet Services), agreeing with the decision of the 2nd DCA in California Highway Patrol v. WCAB (Margaris). “The interpretation of Section 4610.6, subdivision (d), as directory rather than mandatory is consistent with case law and implements the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges,” the 3rd DCA said.

Decision overturning total disability benefits limits to 104 weeks applies to case pending at the time – Florida

In June 2016, the Supreme Court (Westphal decision) ruled that terminating disability benefits after 104 weeks to a worker who is totally disabled and incapable of working but who has not yet reached maximum medical improvement is unconstitutional. In Ft. Walton Beach Medical Center/Broadspire v. Young, the question is raised whether the ruling applies to a case that was appealed the month before the ruling was issued. The 1st DCA noted the claims were filed in 2014 and 2015 while the Westphal decision was pending in the appellate court. The Supreme Court accepted jurisdiction of Westphal in December 2013, so its ruling applies to this case.

Ex-farm employee’s agricultural work precludes workers’ comp benefits – Indiana

In Charles O’Keefe v. Top Notch Farms, an employee drove a semi-truck and tanker and did a variety of other jobs on a farm. He was injured when he was picking up liquid fertilizer and the tanker overflowed. The injured worker argued that he should be considered a truck driver, not an agricultural employee exempt from the Workers’ Compensation Act. However, the Workers’ Compensation Board and the Court of Appeals disagreed, noting it must exam the “whole character” of the work to determine if it is agricultural in nature, so maintenance work is not categorically non-agricultural. His work as truck driver, granary sweeper, painter and truck washer, collectively, was agricultural in nature.

Undocumented worker placed on unpaid leave after filing workers’ comp claim may have a retaliatory case – Minnesota

In Sanchez v. Dahlke Trailer Sales, a divided Supreme Court held that an injured undocumented worker had raised a genuine issue of material fact as to whether an employer had discharged him because he sought workers’ compensation benefits. The employer argued it was not a discharge – the worker was placed on unpaid leave until the worker could show that his return to employment would not violate federal immigration law. However, the worker argued the company had long known and accepted his undocumented status. The Court also found that federal immigration law does not preempt an undocumented worker’s claim for retaliatory discharge under Minn. Stat. § 176.82, subd. 1 (2016).

General contractors must provide workers’ comp for all subcontractors – Mississippi

In Builders and Contractors Association v. Laser Line Construction Co., the Supreme Court ruled that Mississippi Section 71-3-7 requires general contractors to purchase workers’ compensation coverage for the employees of subcontractors, even if the subcontractors are exempt from a requirement to hold workers’ compensation coverage themselves.

Appeals court narrows compensability of horseplay – Missouri

In Hedrick v. Big O Tires, the Court of Appeals upheld the denial of benefits to a tire shop employee who sustained severe burns when he used a lighter to ignite a can of glue held in a coworker’s hand during an apparent lull in the workday. It noted that the worker’s ignition of the glue was not an accident and that it is the accident, and not the injury, that must be the prevailing factor in causing both the resulting medical condition and disability. Even if the extent of the injuries from the “non-accident” is more serious than expected, it does not warrant coverage.

Pre-existing asthma condition insufficient for relief from Special Disability Fund – New York

In Matter of Murphy v. Newburgh Enlarged City Sch. Dist., the court found that the employer had failed to demonstrate that a preexisting asthma condition hindered, or was likely to hinder, an injured worker’s employability. The court ruling was consistent with earlier decisions, which had held that preexisting conditions that are controlled by medication generally do not constitute a hindrance to employability.

Home health care services must be paid to injured worker, not spouse – New York

In Matter of Buckner v. Buckner & Kourofsky, LLP, the court found it was an error for the Workers’ Compensation Board to directly pay the wife, who was authorized to provide some home health services to her hemiplegic and wheelchair bound husband. Citing multiple earlier decisions, the appellate court held the award must be paid to the worker.

Construction worker independent contractor, not employee – North Carolina

In Bentley v. Jonathan Piner Construction, a construction worker printed business cards in the name of Bentley Construction and Maintenance, placed a decal on his truck with the company name, started a website to advertise the business, hired his own crew, set their hours, and used many of his own tools when working on various jobs. He and some of his crew were hired by a subcontractor to do framing work. The subcontractor offered to pay the business for the work, but was asked to issue a separate check for each man on the crew.

The owner of Bentley Construction and Maintenance sustained an eye injury and filed for workers’ comp, which was denied by the carrier. Applying the eight-factor test set forth in the North Carolina Supreme Court’s 1944 ruling in Hayes v. Elon College, an appellate court determined he was an independent contractor and not entitled to benefits.

Worker who jumped off roof entitled to benefits – Pennsylvania

In Wilgro Services, Inc. v. Workers’ Compensation Appeal Board (Mentusky), a HVAC mechanic, working on the roof of a building, had used a ladder roofers had been using to get up and down from the roof. One day he was the last one on the job, and there was no ladder available. He chose to jump from the lowest part of the roof, perhaps 16 to 20 feet from the ground and ended up with multiple fractures. The carrier denied the claim but the Workers’ Compensation Judge (WCJ) granted benefits, noting although the jump was ill advised, the worker did not intentionally injure himself.

On appeal, the case made its way to the Commonwealth Court, which agreed that the worker was in the scope and course of his employment and entitled to benefits.


Employer’s denial of benefits does not preclude right to subrogation – Pennsylvania

In Kalmanowicz v. WCAB, a divided Commonwealth Court ruled that an employer’s denial of a workers’ compensation claim does not forfeit its ability to partake in any recovery from a subrogated claim. In Pennsylvania, an employer’s subrogation right is often described in terms of being “absolute” and there are only “very narrow circumstances” in which that right can be waived.

In this case, the employer was contesting a claim for PTSD that arose from a fatal automobile accident where an oncoming vehicle swerved into the employee’s lane with the driver pressing his head against the windshield and staring at the employee. The employee argued that employer could not recover a subrogation lien because it had not accepted liability for the PTSD. Since the employer had not acted in bad faith nor failed to exercise due diligence in enforcing its subrogation rights, the court said the employer had not waived its right to subrogation.

Pension offset for workers’ comp based on maximum amount, not what was actually received – Pennsylvania

In Harrison v. WCAB, a divided Commonwealth Court ruled that an employer was entitled to an offset against an injured worker’s pension benefits based on the maximum monthly amount of pension benefits he could receive, even though he was receiving a lower monthly rate that provides a survivor benefit for his spouse. The court argued even though he received a reduced payment, his employer needed to provide funding to the pension plan to pay the survivor benefits to his wife and, therefore, both pensions would be “actuarially equivalent.”

Worker cannot sue co-worker for injuries in auto accident – Tennessee

In Williams v. Buraczynski, the Court of Appeals of Tennessee at Knoxville found that an injured worker could not sue his co-worker who was driving at the time of the accident for negligence. It noted the exclusive remedy was workers’ compensation and that case law provided the rights under the system. One of those rights is to “not be subject to a tort suit by another employee for actions taken in furtherance of the employer’s business.”

Claim for surgery treating pre-existing condition, not injury, disallowed – Wisconsin

In Flug v. Labor and Industry Review Commission, a divided Supreme Court ruled that a worker was not entitled to benefits for her surgery to treat her degenerative disc disease, even though she had a good-faith belief that the surgery was reasonable and necessary treatment for her work-related back and shoulder injuries.

A Wal-Mart supervisor suffered an injury to her shoulder and received conflicting opinions from three physicians regarding treatment. Following the recommendations of a neurosurgeon, she underwent surgery for an anterior cervical discectomy. However, the carrier only provided coverage for a muscle sprain based on the opinion of the doctor hired by Wal-Mart to perform an independent medical evaluation who concluded she suffered a cervical and shoulder strain that was resolved long before the surgery and that she had pre-existing degenerative disc disease.

While the Court of Appeals found that she was entitled to disability benefits for her surgery as long as she had a good-faith belief that it was necessary treatment for her industrial injury, the majority of the Supreme Court held “if the disability-causing treatment was directed at treating something other than the employee’s compensable injury” it is not compensable.

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