Legal Corner

ADA
EEOC settles suit with New York Con Ed for $800,000

New York City and Westchester County’s electricity and gas utility, Consolidated Edison Co. of New York Inc., will pay $800,000 to resolve a disability discrimination suit under the ADA. The EEOC said Con Ed’s doctors violated the ADA by refusing to medically approve qualified applicants to begin employment because of their disabilities, even though they could perform the jobs for which they applied, and by performing medical exams of applicants without first giving them a conditional job offer. The EEOC said also the utility’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings and, in one case, led to termination.


Workers’ Compensation

Exclusive remedy bars health care worker from suing employer for patient attack – California

In Mendiola v. Crestwood Behavioral Health, a health care worker contended her employer did not inform staff about a patient who had a history of attacking women and had misrepresented her job duties. The court said that all of her claims, whether based on misrepresentation or concealment, were related to workplace safety and, thus, were covered by the exclusive remedy of workers’ comp.


Insurance companies can recoup benefits from third-party award – California

In Duncan v. WalMart Stores Inc., an employee of a marketing firm fell and injured herself while on business in WalMart. The marketing firm’s insurer, The Hartford, paid roughly $115,000 for medical care and $37,000 in indemnity benefits. The individual successfully sued WalMart and WalMart was ordered to pay her $355,000, which went toward reimbursing her for medical expenses, and pain and suffering. Then,The Hartford sought to take $152,000 from her award.

Her attorneys argued that she hadn’t been awarded wage-loss benefits, so The Hartford wasn’t entitled to take money to reimburse the indemnity benefits it had paid. However, the court followed the legal precedent that allows employers and carriers to seek reimbursement for their workers’ compensation expenses “totally separate and apart from the injured worker’s actions.” The court wrote that allowing insurance companies to recoup their expenses before workers get a chance to see the award is “consistent with the overall purpose of the workers’ compensation system” because of the quid pro quo the system is founded upon.


Exempt corporate officer of subcontractor cannot sue general contractor – Florida

In Gladden v. Fisher Thomas, Inc., an officer of a Florida corporation, who elected to be exempt from workers’ compensation coverage and who was hired by a subcontractor on a construction project, may not sue the general contractor and other subcontractors in tort for the serious injuries he sustained when he fell from the second floor. The trial court concluded the officer was an “employee” under the Workers’ Compensation Law at the time of the accident, notwithstanding his exemption. The defendants were, therefore, entitled to workers’ compensation immunity.

Upon appeal, the court noted that electing the corporate officer exemption did not remove the officer from the entire workers’ compensation scheme and open the door to actions in tort against individuals and entities who would otherwise be entitled to workers’ compensation immunity.


Standards for expert witness testimony in FELA same as personal injury cases – Georgia

In Smith v. CSX Transportation, the Court of Appeals ruled that the same statutory standard for evaluating the reliability of an expert witness applies in cases brought under the Federal Employers Liability Act (FELA) as in any other personal injury case. An employee, who had filed workers’ comp cases for a back injury, a right knee injury and carpal tunnel syndrome in both hands over his 32-year career, filed suit against his company when he developed pain in his shoulders.

He claimed the company had violated the FELA by exposing him to “harmful repetitive motion, cumulative trauma, awkward work postures, vibration and other harmful conditions” that resulted in injuries to both shoulders. His claim was supported by a doctor whom the judge determined did not present reliable evidence.

The Georgia Court of Appeals said it was not an abuse of discretion for the trial judge to exclude the doctor’s testimony from evidence. Although FELA relaxes the standard of causation that would otherwise apply in personal injury cases, the court said that doesn’t mean the standard for evaluating the admissibility of expert testimony is similarly relaxed.


Second Injury Fund shares in the liability for back injury – Missouri

In Barnes v. Treasurer, an employee of an airport parking and shuttle company injured his back in 2009 and returned to work without restrictions. He asked to receive additional care, but was refused and began seeing a chiropractor and neurosurgeon, who recommended surgery. When the company refused to pay, he went through his private insurance, but only received authorization for one-level fusion, even though the doctor had recommended a two-level fusion. Following the surgery, the doctor imposed strict limits on his activity and the company eventually terminated him and he has not worked since.

This was not the first time he had injured his back; in 2000, at another employer, he suffered a back injury in a motor vehicle accident. There were two experts who opined that the permanent and total disability was a result of the last work injury, and there was one expert who opined that at least some of the disability was attributable to the 2000 accident. While a judge ruled that the company was liable for 100% of the costs, the Labor and Industrial Relations Commission disagreed, finding he was disabled by the combined effect of his pre-existing disabilities and the 2009 back injury.


Benefits allowed for staph infection related to epidural injections for lumbar injury – Mississippi

In Lowe’s Home Ctrs., LLC v. Scott, an appellate court noted weighing of the evidence, including expert testimony, was the responsibility of the Workers’ Compensation Commission. The Commission had given greater weight to the testimony of the employee’s medical expert who opined that, more likely than not, the worker’s staph infection was causally connected to epidural injections the worker received as treatment for a work-related back injury, and, thus, the decision to award benefits will stand.


Standards for evaluating appropriateness of vocational rehabilitation plans set by high court – Nebraska

In Anderson v. EMCOR Group, an injured employee had reached maximum medical improvement and was entitled to a vocational rehabilitation evaluation. The counselor determined that the company had no jobs appropriate for the worker and an Internet search of appropriate jobs revealed a much lower pay scale. The counselor, therefore, recommended a vocational training program. The Workers’ Compensation Court ordered the implementation of the plan, the company appealed, and the case ended up in the Supreme Court.

The Court noted that the purpose of the Workers’ Compensation Act is the restoration of an injured employee to gainful employment, although, it acknowledged it has never defined what it means to restore a worker to suitable or gainful employment. Having cited Alabama case law in previous decisions, the Court adopted the definitions used in Alabama, which provide that “restore” means “to put back.” Since the plan was geared toward putting the injured worker back to employment paying wages similar to those earned prior to the injury and in a field that would be compatible with his age, education and aptitude, the Supreme Court said approval of the plan was not “clearly wrong.”


Worker with PTSD entitled to further disability – New York

In the Matter of Perez v. SN Gold Corp, an employee of a jewelry manufacturer was robbed at gunpoint. It was found he was entitled to PTSD benefits. Later, a WC judge and The Workers’ Compensation Board found the employee had a further causally related disability. The company appealed, but the court found substantial evidence to support the finding and noted it found no error in the exclusion of the independent medical examiner’s report at the proceedings because the company had failed to comply with the law, which required that a copy of an IME report be provided to a worker’s treating doctor on the same day that the worker, the board and the employer’s insurance carrier receive it.


Property owner and general contractor liable for fall from scaffold – New York

In Yaucan v. Hawthorne Village, a New York appellate court ruled that a property owner and general contractor were liable under Labor Law Section 240(1) for a construction worker’s fall from a scaffold, and that they were not entitled to summary judgment dismissing the worker’s Section 241(6) claim. The injured employee who fell from the third floor claimed the scaffolding shifted when it was hit by a large piece of material and, although he wore a safety harness and lifeline, it was too long to stop him from hitting the ground. The court said the employee was entitled to summary judgment on his Section 240(1) claim, since he established that he was not provided with adequate safety equipment to prevent him from falling and it was the owners and general contractor’s duty to provide the safety devices necessary to protect workers from the risks inherent in elevated work sites.


Time limits for filing claims against guaranty fund upheld – North Carolina

In Booth v. Hackney Acquisition Co., an employee who died from lung cancer in 2008 worked for a company whose Workers’ Comp carrier was declared insolvent in 2003. His widow asserted the cancer was caused by his exposure to welding rod fumes during the course of his employment and filed a claim with the Insurance Guaranty Association. There are two sections of the statute that set time limits for such claims, but the widow contended the statutes violate principles of due process and equal protection for workers with occupational diseases that do not manifest within the time limits. The Court of Appeals, however, found both sections constitutionally valid, since they further the state’s legitimate interest in protecting the integrity of the guaranty fund.


Ambulatory surgery centers subject to same fee schedules as hospitals – North Carolina

The North Carolina Court of Appeals ruled that Ambulatory Surgery Centers (ASC) are not separate and legally distinct from hospitals, overturning a Wake County Superior Court decision that invalidated a new Medicare-based fee schedule for ASCs.


Employer who alleged violation of safety rules led to fatality must pay benefits to widow – Pennsylvania

In M.A. Beech Corp. v. WCAB (Mann), a bridge inspector suffered a fatal injury when he was pinned between an aerial lift and the beam of an overpass. While the company contended that the use of the lift had been a violation of the company’s safety rules, lower courts awarded benefits to the injured employee’s widow.

Upon appeal, the Commonwealth Court noted a company that relies on an alleged violation of safety rules must prove that the worker’s injury was caused by the violation of the rule, that the worker knew of the rule, and that the worker was engaged in an activity that was wholly foreign to his employment. The court did not find sufficient evidence that a safety rule was violated and also noted it was appropriate to grant benefits to the widow, since her husband was attempting to perform his duties as an inspector at the time of his fatal accident.


Widow receives benefits for unknown occupational exposure – Tennessee

The Supreme Court’s Workers’ Compensation Panel upheld an award of death benefits to a steelworker’s widow whose husband went to Stockertown, Pennsylvania, to work on an installation project at a cement plant and suddenly became very ill. Although he sought treatment at a walk-in clinic, his condition deteriorated and he was hospitalized and went into a coma. Doctors suspected he had pneumonia and septic shock, a serious infection that affects organ function and transferred him to another hospital, but en route he had a heart attack. He died a month later.

The widow petitioned for death benefits, arguing her husband had inhaled something on the job that caused his sudden decline and the treating physicians supported her argument. The trial court ruled, and the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel upheld in the widow’s favor.

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