Month: November 2017

ADA
Extended leave not reasonable accommodation for employee who exhausted FMLA leave – 7th Circuit U.S. Court of Appeals

In Severson v. Heartland Woodcraft, an employee who worked a demanding job in spite of a degenerative spine condition injured his back at home and took a 12-week medical leave under the FMLA. On the last day of his leave, he had back surgery and asked for two or three more months to recover. It was denied and the employee filed suit under the ADA. A district court judge found in favor of the employer and, upon appeal, the 7th Circuit Court of Appeals noted “If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a ‘qualified individual'” as is defined in the ADA.

In so doing, the court reaffirmed a 2003 decision in Byrne v. Avon Products and rejected the Equal Employment Opportunity’s Commission’s request to revisit the decision.
FMLA
Workers’ Comp settlement doesn’t bar FMLA lawsuit against employer – 3rd Circuit Court of Appeals

In Zuber v. Boscov’s, an employee injured on the job missed two days of work and when he returned to work requested a week of FMLA leave, which was granted. About a month later, he was fired and filed suit that the company interfered with his rights under the FMLA, and that it had retaliated against him for filing his workers’ compensation claim.

The company argued that the employee waived his FMLA and common law rights in settling his comp claim and a district judge agreed. However, the Third Circuit found the language of the agreement, which stated that it was a final resolution of the work injury claim ‘and its sequela,’ doesn’t necessarily disallow a FMLA suit. Signing the agreement meant he could not bring a future workers’ compensation claim, but didn’t prohibit him from bringing FMLA or Pennsylvania common law claims.

Workers’ Compensation
Workers’ Compensation disability findings not binding in Social Security disability claim – United States

In Derosia v. Colvin, a federal district court found that an Administrative Law Judge (ALJ) had not erred in denying a claim for Social Security Disability Insurance Benefits. It is well accepted that Workers’ Compensation guidelines do not necessarily coincide with federal disability regulations and are not binding. However, the ALJ noted none of the workers’ compensation treating providers focused on work-related functions; rather, they provided statements concerning her ability to return to work.

Court clarifies length of psych benefits related to workplace injuries – Florida

In Utopia Home Care v. Alvarez, an employee was diagnosed with major depressive disorder after suffering a severe shoulder injury at work, but did not decide to seek indemnity benefits for her depression until almost two years after she reached MMI. A judge of compensation ruled that she was entitled to the benefits, believing that she could collect six months’ worth of psychiatric benefits anytime after reaching MMI, however the 1st DCA overturned the ruling. When a worker reaches maximum medical improvement, it “starts a clock” on remaining psychiatric benefits “that stops six months to the day after the date of physical MMI,” the court wrote.

Trial judge erred in overturning denial of authorization for surgery – Georgia

In Autozone v. Mesa, a delivery driver suffered injuries when a vehicle struck her delivery truck from behind. After a doctor cleared her to return to work, she continued to complain of back pain and underwent several MRIs. Four doctors found no abnormalities, but a fifth doctor, while finding no disc herniations or significant desiccation, recommended a surgical sacroiliac joint fusion. An independent medical evaluator disagreed.

An ALJ found that the sacroiliac surgery was not reasonable or necessary and the State Board of Workers’ Compensation agreed. A superior court judge later reversed the Board, finding the record contained “no objective medical evidence” that the proposed surgery was not reasonably required. However, the Court of Appeals said there was substantial competent evidence to deny the surgery and that the judge improperly took on the role of “fact finder”.

Pastor’s salary cannot be included in weekly wage calculations – Illinois

A worker at Nestle USA suffered two serious work-related injuries that led to temporary total disability benefits, temporary partial disability benefits, and medical expenses as well as wage differential benefits. During the time of his injuries, he also worked as a pastor and received a $600 per week housing allowance; however, the employer was not aware that he was being compensated, although they knew of the job. The 4th District Court of Appeals upheld earlier decisions, saying that his employer did not know he was being compensated for his duties as a pastor; therefore, his job as a pastor could not be included in the weekly wage calculations.

Slip and fall on wet pavement in employer’s parking lot not compensable – Illinois

In Dukich v. Illinois Workers’ Comp. Comm’n, an appellate court found that an employee who slipped and fell in a wet parking lot could not collect workers’ comp. The parking lot was clear of ice and snow and had no defects that caused the fall; therefore, the slip and fall accident arose from an activity of daily living. There was also no evidence that the employee was rushing to complete a work task or carrying items required for her work.

Requirements for employer to terminate rehabilitation clarified – Minnesota

In Halvorson v. B&F Fastener Supply, an employee injured her right elbow and knee and was awarded benefits that included rehabilitation. She took a part-time job with another employer and B&F Fastener Supply took steps to end the rehabilitation services. A compensation judge granted B&F’s request to discontinue rehabilitation services, but the Court of Appeals and the Supreme Court disagreed.

The company relied upon the argument that she no longer met the definition of a “qualified employee” under Minnesota Administrative Rule 5220.0100. But the court noted this rule does not provide an independent mechanism for an employer to terminate rehabilitation benefits. It also rejected the argument that a compensation judge could review, approve, modify or reject rehabilitation plans, noting this only applied to initial plan reviews.

Plan modification or termination may be accomplished only by meeting the requirements of Minn. Stat. § 176.102, subd. 8(a), which provides a nonexclusive list of reasons for terminating rehabilitation services under the good-cause standard, including “that the employee is not likely to benefit from further rehabilitation services.” The company acknowledged this might have been a better approach, since it could be argued her return to part-time employment eliminated the need for further rehabilitation services.

Testimony of worker’s colleagues leads to denial of claim – Mississippi

In Walker v. Kinder Morgan, an employee had a long history of back pain, which he had not shared with his employer. He was in a non-work motor vehicle accident and had to stay out of work because he was taking a muscle relaxer and pain medication and the employer did not allow mood-altering drugs. The day he returned to work, he said he experienced a sharp pain in his back, but did not report an injury because he had just returned to work. After a few days, he reported the injury and sought care from his family doctor, who recommended surgery.

While an administrative judge found the injury compensable, the Workers’ Compensation Commission reversed and was upheld by the Court of Appeals. It found the testimony of coworkers, which raised question if he was involved in horse play, how much pain he was in, and whether the pain was a result of the car accident, more compelling.

Standard for compensability of psyche injuries clarified – Missouri

In Mantia v. Missouri Department of Transportation, the Supreme Court unanimously overturned an award of benefits to a worker for her psychological injuries from witnessing horrific accidents on the state’s highways, saying she needed to prove her distress was “extraordinary and unusual” as compared to other similarly situated employees. According to her testimony on average, at least one accident a week involved a fatality and she graphically described some horrific scenes. She had worked for the Transportation Department for 20 years and had begun suffering from panic attacks and nightmares. She acknowledged her co-workers witnessed similar gruesome accidents, but they sometimes joked about it.

In reversing earlier decisions, the Supreme Court explained that Section 287.120.8 of the Workers’ Compensation Law limits the availability of benefits for mental injuries to those that are caused by work related-stress that is “extraordinary and unusual.” The court decided that the appropriate objective standard for determining whether the stress was compensable was “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.”

Blind worker’s volunteer activities did not warrant misrepresentation and forfeiture of benefits – New York

In the Matter of Eardley v. Unatego Central Sch. Dist., a janitor injured his right shoulder and neck and a WCJ found he was entitled to permanent total disability benefits. A surveillance video showed the employee walking around at a concession, helping to move a popcorn machine, and, on a separate occasion, helping his disabled daughter take money at a secondary admission for a non-profit’s football event.

After viewing the video footage, the school district accused him of having violated Workers’ Compensation Law Section 114-a(1), which provides for the forfeiture of a benefits if the worker has knowingly made a false statement or representation of material fact in order to secure the payment of benefits. A WCJ found that he had not violated Section 114-a(1), since the video footage did not demonstrate he had the ability to work, finding that such activities were minimal and not inconsistent with the representations that the employee made to the insurance carrier. This was upheld on further appeals.

Summary judgment on claim for fall overturned – New York

In Valente v. Lend Lease (US) Construction LMB, a construction worker slipped and fell on grease that had gotten on to the planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. A Supreme Court Justice and the Appellate Division’s 1st Department granted partial summary judgment, finding Valente’s fall was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” However, the Court of Appeals noted the testimony of the foreman conflicted with the employee’s claim about the safety devices available and, therefore, raised question as to whether the employee’s conduct was the sole proximate cause of the accident. The case was reversed and remanded.

Veteran airline mechanic entitled only to disability benefits based on federal minimum wage – North Carolina

In Myres v. Strom Aviation, an employee of an employment agency providing contract labor or temporary staffing to companies in the aerospace and aviation industry injured his ankle and a received 25% permanent partial disability rating. Several months after returning to work, he stopped working because of ankle pain. While working for the agency he received per diem payments as well as a wage. A deputy commissioner determined that the per diem payments were for business-related living expenses, not payments made in lieu of wages and the Court of Appeals agreed.

Without the per diem payments, his hourly rate of pay was $7.25, the federal minimum wage. Although the court recognized “it seems obvious that an aircraft mechanic with specialized training and over 20 years of experience would be paid far more than minimum wage,” it suggested the arrangement had benefits to both parties, but is a problem when an injury occurs.

Presumption of causal relation does not apply, but claims compensable – North Carolina

In Pine v. Wal-Mart Associates, a Wal-Mart employee tripped and fell and Wal-Mart accepted liability for injuries to her right shoulder and arm, but it denied liability for her other alleged medical conditions. The Industrial Commission said it was Wal-Mart’s burden to prove all the injuries were not causally related to her fall, since Wal-Mart had accepted liability for the injury to the right shoulder and arm.

This past summer the General Assembly abrogated the Supreme Court’s decision that an admission of compensability by an employer gives rise to a presumption that additional medical treatment received by a worker is causally related to the compensable injury. The Court of Appeals said the statutory amendment applied to this case, since the amendment applied to all claims “accrued or pending prior to, on, or after” the date on which the amendment became law. However, the court, in a divided opinion, found that the worker proved her injuries were causally related to her accident.

Terms of settlement extend employer’s obligation to treatment of condition it did not accept – Pennsylvania

In Haslam v. WCAB (London Grove Communication) an employee suffered multiple injuries and the company entered into an agreement accepting liability for fractures of the right and left feet, and it settled the indemnity portion of workers’ compensation claim for a lump sum of $110,000. The employee was taking compound medication prescriptions for complex regional pain syndrome and the company filed a request for a utilization review (UR), since this was a condition for which it had not accepted liability.

After a series of appeals, the Commonwealth Court ruled the UR process is the proper method for determining whether disputed treatment is reasonable and necessary, but it is not the proper method to determine the cause of an injury or condition shown in a settlement agreement. The court explained that once a settlement agreement is approved by a WCJ, it is final and binding on the parties, unless there is fraud, deception, duress or mistakes.

The court wrote, “In this case, Employer accepted responsibility for treatment for Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those feet. There exists an obvious connection between the injury and the pain. For Employer to avoid responsibility for the medical expenses resulting from treatment of the pain in Claimant’s feet, Employer must prove that the treatment is for an injury that is distinct from the acknowledged injury.”

Retaliation claim fails when employee cannot prove he intended to file comp claim – Pennsylvania

In Runion v. Equipment Transport, LLC, a federal district court construing Pennsylvania law, found that a former employee, who undisputedly suffered a work-related injury, had not established a prima facie case of retaliatory discharge. He had not filed a workers’ comp claim and the employer contended the dismissal was on unrelated grounds. While the former employee argued he had told his employer he intended to file a claim, he offered no support to corroborate his claim. In denying the retaliation charge, the court relied on findings in an earlier case that the worker must (1) report the work-related injury and (2) express the “intent to file” a workers’ compensation claim to the employer in order to trigger the protection of the public policy exception.

Award for disability and last employer’s liability for 90% upheld – Tennessee

In Gibson v. Southwest Tennessee Electric Membership Corp., an employee injured his back, reached a settlement, and returned to work. He continued to experience pain and a few months later his doctor took him off work and declared him to be permanently disabled. When a petition to modify his settlement was filed, a trial judge found the combined effects of his injury and pre-existing medical conditions permanently and totally disabled him. The judge assessed 90% of the liability to Southwest, and the remaining 10% to the Tennessee second Injury Fund and the Supreme Court’s Special Workers’ Compensation Appeals Panel agreed. In so doing, it noted that he is no longer able to walk for exercise, that he cannot work, that he takes pain medication and muscle relaxers, and that he has no other vocational skills or training, but he was able to work with no restrictions prior to his injury.

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