Legal Corner

ADA
Six-month leave upheld by United States Court of Appeals, 11th Circuit

In Billups v. Emerald Coast Utilities Authority, an Utility Service Technician II suffered a shoulder injury and received physical therapy, but after two months it was determined he required surgery. The surgery was delayed because of his reaction to anesthesia. His company had a policy of 26 weeks of leave for work injuries. Following surgery, the doctor said it would likely take six months for his shoulder to recover to the degree that he could perform the essential functions of the job.

The company sent a notice indicating he would be terminated if he could not return to full duty by June 18, 2014, which was the end of his six-month period of leave. At the time, they were short staffed and dealing with severe flooding damage to the water and sewer infrastructure. At a predetermination hearing, he was given one day to obtain a doctor’s statement regarding his full-duty return to work date. He was able to obtain a note from PT about his release date, but not from his doctor and was fired on June 23, 2014. He was not cleared by his doctor to return to work full duty until October 23, 2014 and it was with limitations.

After losing in district court for not identifying a reasonable accommodation, the employee appealed arguing that a short period of leave would have been a reasonable accommodation under the ADA. The court noted he had not demonstrated that his requested accommodation would have allowed him to return to work “in the present or in the immediate future” and therefore, the request for additional leave could be interpreted as a request for indefinite leave, which is unreasonable.
FMLA
Reassignment of minor job duties does not violate FMLA

In Marsh-Godreau v. State University of New York College at Potsdam, the U.S. District Court for the Northern District of New York ruled reassignment of minor job duties did not violate the FMLA. While the employee was on leave, the university reassigned some entry responsibilities for the annual report and did not return the responsibilities when she returned.

Her suit alleged that the university reduced her responsibilities, her supervisor exerted unwarranted and excessive scrutiny, and the university no longer allowed her to perform essential functions of her role. The court found in favor of the employer, noting the employee continued to be employed and that she received raises annually until her retirement.
Workers’ Compensation
Ruling published on confidentiality of identities of medical professionals performing independent medical reviews – California

The 1st District Court of Appeal has ordered publication of its ruling in Zuniga v. WCAB (Interactive Trucking) that found injured workers do not have a due process right to know the identities of medical professionals performing independent medical reviews. Only published opinions are binding precedent in California.
Pulse Nightclub first responder denied PTSD benefits because there was no accompanying physical injury – Florida

In Florida, witnessing tragic events on the job are classified as within the scope of employment for first responders and, therefore, PTSD must accompany a physical injury in order for first responders to be eligible for benefits. The responder argued that he had been hospitalized for hypertension and this should be considered a physical injury. The judge ruled that since the responder had not reported a physical injury, nor had his blood pressure taken on the night of the shooting, hypertension could not be claimed as a physical injury.
Surgery not compensable when EMA considers it reasonable but counsels against it – Florida

In Ascension Benefits & Insurance Solutions of Florida v. Robinson, the 1st District Court of Appeal ruled that a worker was not entitled to the surgeries that an expert medical adviser had counseled against, even though the adviser acknowledged that the procedures would be reasonable treatment for the worker’s injuries. Based on the report of the Expert Medical Adviser (EMA) and IME, a judge determined surgery on the injured employee’s elbow and index fingers was reasonable.

Upon appeal, the court said reasonableness is not the only standard to apply when awarding medical treatment, treatment must also be medically necessary. The EMA never said the surgeries were medically necessary and, in fact, recommended against them. Under Florida law, the opinion of an EMA is presumed to be correct, unless there is clear and convincing evidence that it is wrong.
Employer discovers lower quote does not mean same coverage when out of state accident is not covered – Indiana

Custom Mechanical Construction (CMC) is an Indiana-based mechanical contractor but is authorized to do business in Kentucky. Since its establishment in 2005, it had used the same insurance agent and the same carrier for workers’ comp. In 2015, the agent solicited bids from other carriers and secured a $3,000 lower quote. The company claims that it was led to believe that the coverage was the same. When a CMC worker was injured on a job in Kentucky, the carrier filed suit in a federal trial court in Indiana seeking a judicial determination that its policy does not cover claims from Kentucky. CMC counterclaimed that the carrier wrongly and unreasonably denied coverage, and that the broker is liable for failing to procure adequate coverage. The judge found that CMC had no viable claim for bad faith nor negligence and that the broker was not an agent of the carrier. Accident Fund Insurance Co. of America v. Custom Mechanical Construction
Interactive process not required under Human Rights Act (MHRA) – Minnesota

In McBee v. Team Industries, the Court of Appeals ruled that an employer was not required to engage in an interactive process to determine whether an injured worker could be accommodated, and that the employer had defeated the worker’s claims of discrimination and retaliation under the state Human Rights Act and Workers’ Compensation acts.

A machine operator worked for a foundry and aluminum die-casting facility and was required to do heavy lifting and operate, repair, and maintain heavy machinery. She sought medical attention for severe pain in her hands, back and neck and her doctor found she had disc narrowing, a bulged disc and bone spurs in her vertebrae and he imposed lifting restrictions. A month later, she was fired from the job and sued under the MHRA.

The law requires that employers make a “reasonable accommodation to the known disability of a qualified person.” However, the court found that a “qualified person” must be able to perform the essential functions of the position and there was no reasonable accommodation for her to perform the heavy lifting, which was an essential function of the job.

Since the federal Americans with Disabilities Act pre-dates the MHRA, the court said it had to assume that the Minnesota Legislature consciously refrained from including the ADA’s interactive-process language in the act. This position differs from an earlier decision by the 8th U.S. Circuit Court of Appeals.
Corruption makes suicide workplace related and death benefits awarded – Mississippi

A judge has ruled in favor of the widower of a former state employee, awarding him his wife’s death benefits after she committed suicide. His wife had worked for the state Department of Marine Resources and had grown increasingly distraught over land purchases by the director that benefited family members and felt she was going to be blamed for the corruption.

After her first attempt at suicide failed, she was admitted to the hospital and began undergoing psychiatric treatment, but hanged herself months later. Psychiatrists testified that her employee’s participation in the corrupt land deal – and her concern that she would also be implicated – were clearly the reason for her distress. The judge ruled that the inappropriate actions of the department’s employees caused her to suffer a mental disorder that prompted her suicide and awarded close to $200,000 in death benefits.
Court reverses attorney sanctions but allows quashing of subpoena – Mississippi

In Wright v. Turan-Foley Motors, the appeals court cautioned attorneys against being overzealous in their attempts to prove an employer-chosen medical examiner is biased against their client. It found the Workers’ Compensation Commission was right to dismiss an attorney’s “overly burdensome and unduly broad” subpoena against an employer’s medical examiner, but should not have imposed a $5,000 penalty against the attorney or made him pay the medical examiner’s attorney’s fees.
Pre-existing conditions do not preclude benefits for future medical care – Missouri

In Morris v. Captain D’s, an employee suffered injuries in a car accident and additional injuries in a workplace fall. He quit his job several months later and filed for comp benefits. An administrative law judge found that he was permanently and totally disabled from the combined effects of his injuries and pre-existing conditions, which included knee, back, and neck injuries and high blood pressure and heart disease. The judge found, and the court of appeals agreed, that he that was entitled to future medical treatment on each claim.
Department store skin care specialist and model is employee of Skin Care Company – New York

In Colamaio-Kohl v. Task Essential Corp, the employee worked as a skin care specialist and spokesmodel at a Bloomingdale’s store and fell and suffered injuries while heading to the restroom. He later filed a comp claim and the appellate court upheld an award of benefits, noting that the Skin Care Company had control over his schedule, training, and dress code. Therefore, he was not an independent contractor nor employee of Bloomingdales, but an employee of the Skin Care Company.
Employee who worked only 16 days before injury receives an average weekly wage of $709.15 – New York

In Bain v. New Caps, an employee had earned just $2,950 in 16 days of employment when he was in a car accident. The company submitted a wage earnings statement indicating it had paid $2,950 during the 52-week period preceding the accident and that the employee had earnings of $2,121.81 from other employers during the same period. The law says a worker’s annual earnings shall consist of not less than 200 times the average daily wage or salary earned during the days when he was employed, as divided by 52. Thus, the appellate court found that Board’s determination of the AWW of $709.15 was correct.
No reimbursement to employer for overturned attorney fee – Pennsylvania

In County of Allegheny v. Workers’ Compensation Appeal Board, the Supreme Court ruled that an employer cannot recover attorneys fees erroneously paid to an injured worker’s lawyer. The employer was ordered to pay $14,750 in attorneys fees under Section 440 after the Workers’ Compensation Appeal Board determined that it had unreasonably contested its liability. However, the Commonwealth Court reversed the decision and also overturned the attorney fee award.

The county sought reimbursement for the erroneously awarded attorneys fees, but the Supreme Court found that the General Assembly, in enacting the Workers’ Compensation Act, did not provide any mechanism by which employers can recoup erroneously awarded counsel fees once paid.
Treating physician’s failure to mail medical records means UR company will automatically declare the treatment “not reasonable or necessary” – Pennsylvania

In Allison v. Workers’ Comp. Appeal Bd. (Fisher Auto Parts, Inc.), the Commonwealth Court found a utilization review doctor did not violate the due process rights of an injured worker by denying a medication and injection regimen after a treating physician failed to submit medical records to justify the treatments.The law requires physicians to mail documents to a utilization review organization (UR) within 30 days of receiving a company’s request. In past cases, the Commonwealth Court ruled that workers’ compensation judges don’t have jurisdiction to review UR denials due to a lack of medical records. This case argued that denying treatment due to circumstances outside the employee’s control when he had no way to appeal the decision was a due process violation, but the court disagreed.
Earning potential calculation clarified – Pennsylvania

In Smith v. WCAB (Supervalu Holdings PA), an employee was injured when falling items from a shelf hit him on his head. He suffered a cervical strain/sprain and received $662 per week, based on his average weekly wage. The employer filed to suspend his benefits when he refused to undergo a second surgery they deemed was highly likely to cure his disability. The judge said refusal to undergo the surgery was not a refusal of reasonable medical treatment and there was no guarantee that new treatment would decrease the disability. Therefore, he did not suspend benefits but agreed to modify based on a vocational rehabilitation counselor’s recommendations.

The counselor identified five open and available positions within the vocational and medical restriction and recommended modifying the benefits to $396.63. The court said the question of whether the jobs could serve as a basis for modifying benefits depended on whether the jobs were available to him and found that since the worker interviewed for two of the identified positions there is substantial evidence that the job is available.
Opinion of worker’s medical expert insufficient to rebut the opinion of treating doctor – Tennessee

In Goodman v. Schwarz Paper Co., an employee suffered a back injury and after receiving treatment was released to work with no restrictions. She later experienced radiating pain originating in her right sacroiliac and buttock and the doctor conducted a nerve conduction study, but the result revealed no abnormalities. Another doctor examined her at the request of her attorney, and opined that she had lumbar radiculopathy in addition to a traumatic back injury. He assigned a 12% impairment rating for her back and a 3% impairment rating for the bursitis, compared to the 2% assigned by her treating physician.

A trial judge found the new opinion was not enough to overcome the statutory presumption of correctness afforded to the original opinion and awarded benefits based on the 2% impairment rate. The Supreme Court’s Special Workers’ Compensation Appeals Panel agreed.

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