Legal Corner

ADA
Disqualifying applicants based on preemployment nerve conduction tests leads to $4.4 million settlement

Chicago-based Amsted Rail Co., a steel casting manufacturer, has agreed to pay $4.4 million to settle a U.S. Equal Employment Opportunity Commission class disability discrimination lawsuit for allegedly disqualifying job applicants based on the result of a nerve conduction test for carpal tunnel syndrome rather than conducting an individualized assessment of each applicant’s ability to do the job safely. The court found that the test was unlawful and had little or no value in predicting the likelihood of future injury.

In the settlement, Amsted Rail agreed to discontinue the process and compensate affected applicants for lost wages as well as conduct training and allow the EEOC to monitor hiring to assure compliance with the ADA.
Workers’ Compensation
Signing a preprinted compromise and release (C&R) form to settle a workers’ compensation claim doesn’t relieve liability for claims outside workers’ comp – California

In Camacho v. Target Corp., an appellate court found a state trial court erred when it granted summary judgment to an employer in an employment discrimination case filed by a former employee. The trial court’s decision was based on language in a preprinted Compromise & Release form, which purported to release the employer from liability for “any and all potential claims.” The appellate court noted the purported general waiver was displayed in fine print and it made no reference to any claims beyond the scope of the workers’ compensation claims.

Ruling on five-year statutory cap on the duration of temporary disability benefits stands – California

The state Supreme Court denied review of a 4th DCA decision regarding a statutory cap on the duration of temporary disability benefits. The decision noted that Labor Code Section 4656 simultaneously authorizes a maximum award of 104 weeks of temporary disability payments to a worker who suffers an injury on or after Jan. 1, 2008, and limits payments to a period of disability occurring within five years of the injury.

Housekeeper who tested positive for marijuana denied benefits – Florida

In Brinson v. Hospital Housekeeping Services, a housekeeper fell at work and dislocated her shoulder. Her supervisor drove her to a clinic, where she provided a urine sample pursuant to her employer’s post-accident drug-testing policy.

When she filed a worker’s comp claim, the company contested it. While Florida law provides a rebuttable presumption that the injury was caused by drug use, when a worker fails a post-injury drug test, it also allows a worker to rebut by presenting clear and convincing evidence that the “influence of the drug did not contribute to the injury.”

In a split decision, the court found that the evidence submitted to rebut the presumption of causation was not sufficient to award benefits. Experts testified that drug tests only detect the presence of drug metabolites, but do not conclusively indicate that drugs are active in the bloodstream or have caused impairment.

Co-employee does not have immunity for civil claim related to worker’s death – Florida

In Ramsey v. DeWitt Excavating, an appellate court ruled that the family of a construction worker could not proceed with a tort claim against his employer for a fatal accident, but the family’s claim against a co-employee could proceed. The 20-year-old construction worker was inside a cement-mixing pug mill when a co-worker turned it on.

While the 5th District Court of Appeal noted that employers generally are immune from tort liability for work-related injuries and this immunity usually extends to co-employees, there are exceptions. If the incident is caused by an employer’s intentional tort or if co-employees act with willful and wanton disregard for the well-being of the injured worker, or if they act with gross negligence, the law allows for a civil remedy.

The court found that the risk of injury was apparent; thus, the employer was entitled to summary judgment. However, it concluded evidence suggested the co-employee directed the deceased employee into the pug mill for cleaning and later activated it without checking to see if he was still inside and a jury could find this was gross negligence.

“Similar” specialty not the same as “same” specialty when authorizing a change in doctors – Florida

Under Florida law, an employee can make a one-time request to change treating physicians. In Myers v. Pasco County School Board, a worker who was being treated by an orthopedic surgeon requested a change in providers. The school board made an appointment for her to see a neurosurgeon who also treats spinal conditions, but she did not attend the appointment.

While a judge found in favor of the school board, the 1st District Court of Appeal disagreed.

“A physician who provides similar services in a different specialty does not qualify as a doctor in the ‘same specialty’ because – quite simply – ‘same’ is different than ‘similar,'” the court said.

Evidence chain issues negate intoxication defense – Georgia

A module feeder at a cotton gin was seriously injured when a truck ran into him at a loading dock. In Lingo v. Early County Gin, the company denied benefits based on a post-injury drug test finding of marijuana. When the lab technician who went to the hospital to obtain the urine sample, the injured worker was in surgery and a nurse later returned a sample to the technician.

The technician had no firsthand knowledge of who collected the sample or what protocols were followed.

The case went through a series of appeals. Noting the statutory procedures for specimen collection and testing when an employer attempts to involve the presumption of intoxication, the Court of Appeals ruled against the employer. A sample must be obtained by a physician, a physician assistant, a registered professional nurse, a licensed practical nurse, a nurse practitioner or a certified paramedic and while it was reasonable to assume that the sample was taken by a nurse in the operating room, “assumptions based on speculation are not evidence.”

Work comp lien from third party and the limited liability under Kotecki cap are separate – Illinois

In Cooley v. Power Construction Co. (Reflection Window Co.), an employee of a sub-subcontractor (Reflection) suffered injuries on a project. He collected workers’ comp from his employer and filed a negligence action against the general contractor (GC). When the GC filed a claim for contribution against Reflection, it asserted the “Kotecki cap” as an affirmative defense. This refers to an earlier Supreme Court decision that an employer’s liability for an employee’s injury is capped at an amount not greater than the employer’s workers’ compensation liability.

The GC argued that Reflection had waived the defense under either the master agreement, the subcontract agreement or both and a judge included a statement that Reflection’s workers’ compensation lien had also been waived. The appellate court ruled that “the lien and the limited liability under Kotecki are separate concepts.” A waiver of the Kotecki cap defense does not mean there was a waiver of the workers’ compensation lien. If the GC were found responsible for the injuries, then Reflections could recover the workers’ comp payment.

Employee killed by uninsured driver not covered under his company’s uninsured motorist coverage – Indiana

Overturning trial and state appeals court rulings, the state Supreme Court ruled that an employee killed by an uninsured driver under the influence of methamphetamine while mowing his lawn is not covered under his company’s uninsured motorist coverage. The employee was a scheduled driver under the policy who could use a company truck as his primary vehicle for personal and business transportation.

The decease’s estate claimed it qualified for coverage under the policy term, “others we protect”. Contrary to the estate’s claims, neither the declarations pages, nor the policy, nor the (uninsured motorist) endorsement expressly list the deceased as a ‘named insured,’ ‘additional insured,’ or even a protected or covered driver,” said the ruling.

Expert testimony key in cumulative injury cases – Missouri

In Ackman v. Union Pacific Railroad Co., an appellate court denied benefits under the Federal Employers Liability Act, noting the railway worker’s failure to secure expert medical witness testimony linking his alleged cumulative injuries to his job duties. The employee worked as a machine operator and argued he had suffered cumulative injuries from the repeated stress of riding on Union Pacific’s backhoes.

When the employee did not depose medical experts in response to a trial judge’s scheduling order, the company was awarded summary judgment, shifting the burden of proof to the employee. On appeal, the court noted that expert testimony is generally not required when a layperson could understand what caused an injury; but with cumulative injury cases, expert testimony is usually required to establish causation.

Non-injury related medical procedure compensable when reasonable and necessary to treat a work-related injury – Nebraska

In Carr v. Ganz, the Court of Appeals overturned a compensation court’s denial of a worker’s coronary bypass procedure to prepare him for the implantation of a penile prosthesis. The worker fell off of a horse at work, sustaining symphysis pubis and sacral fractures, and a hernia and developed urinary incontinence and erectile dysfunction. He argued he needed a penile prosthesis and could not undergo the surgery until he underwent a heart catheterization.

Ultimately, the company agreed to pay for the heart catheterization, but the employee underwent a coronary artery bypass procedure also, which the employer refused to pay for. The compensation court agreed, but the Court of Appeals ruled that the compensation court applied the “reasonable relationship” standard when it should have used the “medically reasonable and necessary analysis.”

If a medical treatment is medically reasonable and necessary to treat a work-related injury, the treatment is “required by the nature of the injury” and is compensable, even if it is unrelated to the injury.

“Going and coming rule” nixes benefits for train conductor assaulted before her shift – New York

In Rosemary Rodriquez v. New York City Transit Authority, Workers’ Compensation Board, a train conductor was on her way to work and waiting for a train when she was assaulted by a commuter who was upset by her refusal to open the station gate to let him in (without paying). She sustained multiple injuries to her face, head, neck and back.

Based on the “going and coming rule,” the Compensation Board denied the claim and the appellate court concurred, noting that the assault occurred approximately one hour prior to the beginning of her shift and the employer did not require her to utilize public transit to get to her job.

Cannot have both Nonscheduled PPD and Scheduled Loss of Use awards for same accident – New York

In Matter of Tobin v Finger Lakes DDSO, it was ruled that an injured worker may not receive both a scheduled loss of use award and a nonscheduled permanent partial disability award for injuries arising out of the same work-related accident. The worker suffered reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS) and ptosis of the right eyelid entitling him to a nonscheduled permanent partial disability classification, according to the Workers’ Compensation Board, Therefore, it was appropriate to reverse a WCJ’s finding that the vision loss from a work-related injury was amenable to a 100% scheduled loss of use.

Company receives credit for disability benefits paid – North Carolina

In Haulcy v. The Goodyear Tire and Rubber Co., an employee who injured her back did not file a comp claim nor receive treatment. About a year later she experienced pain while working and was diagnosed with a disc herniation and facet arthropathy in her lumbar spine. The Commission concluded the injury was a material aggravation to a pre-existing low back condition. She filed a claim, and worked modified duty for 90 days, which was the maximum allowed by the company. She was off for about four months before she could return to work at full duty. The commission found and the Court of Appeals agreed that she was entitled to benefits for this period, but the company was entitled to a credit against the benefits of $15,521.90 for payments made under its accident-and-sickness disability plan.

Supreme Court clarifies employee classification coverage under the Construction Worker Misclassification Act (CWMA) – Pennsylvania

In Department of Labor and Industry, Uninsured Employers Guaranty Fund vs. Workers’ Compensation Appeal Board (Lin and Eastern Taste), the Supreme Court ruled that the phrase “construction industry” used in the CWMA limits its applicability to workers engaged in work for a business entity that performs construction services. As such, a worker who was injured while remodeling his sister-in-law’s restaurant was not eligible to receive workers’ compensation benefits for his injuries.

While he was doing construction work at the time of his injuries, and the serious injuries rendered him a paraplegic, the Commonwealth Court said his work at the restaurant did not bring him within the class of potential workers who could be deemed “employees” eligible for workers’ compensation benefits under the Act. He was an independent contractor, since no one oversaw the manner and means in which he did his work, and the restaurant was not a construction business.

Supreme Court clarifies and denies use of proceeds from third-party recovery for future medical benefits – Pennsylvania

In Whitmoyer v. WCAB (Mountain Country Meats), the Supreme Court noted that the workers’ comp statute provides that any subrogation recovery the employee collects from a third-party tortfeasor in excess of the benefits already paid by the employer “shall be treated as an advance payment by the employer on account of any future installments of compensation.” Although compensation can refer to both disability benefits and medical expenses, the statue specifically says compensation that is paid in installments.

The Workers’ Compensation Act requires that disability benefits be paid in periodic installments, but not medical expenses and, as such, the recovery cannot be used as a credit for future medical expenses.

Reinstatement of permanent benefits for “Pre-Protz” injured worker – Pennsylvania

In Whitfield v. Workers’ Comp. Appeal B, the Commonwealth Court opened the door to injured workers whose disability ratings were lowered through an independent medical exam (IRE) to petition for reinstatement of benefits. Last summer, the Supreme Court declared the entire IRE process void, in light of the earlier Protz decision, which struck down a statutory requirement that doctors use the “most recent” edition of the AMA’s Guides to the Evaluation of Permanent Impairment in performing IREs.

During the two years between the rulings, injured workers filed petitions seeking to have their status changed from partial disability to total disability because their status had been changed from total disability to partial disability through the IRE process. Whitfield was one such case. While the WCAB and a WCJ denied the change in status, the Commonwealth Court vacated the board’s decision.

The court instead determined that a worker whose status was modified because of an invalid IRE can get total disability status reinstated if he/she credibly testifies that the work-related injury continues and the WCJ credits that testimony over any evidence that an employer presents to the contrary. Medical expert testimony is not required. The worker must file the petition within three years of the last receipt of benefits.

Employer cannot recoup payments for disputed treatment, but doesn’t have to pay fees – Tennessee

In Young v. Sugar Hollow Properties, a workers’ comp settlement required the employer to provide future reasonable and necessary medical treatment related to the injuries. The worker’s doctors requested a treatment that the utilization reviewer did not find reasonable and necessary because the recommendation did not comply with the Official Disability Guidelines and the Department of Labor and Workforce Development agreed.

However, a trial court ordered the employer to provide the treatments and to pay legal fees. When the company appealed, the Supreme Court Special Workers’ Compensation Appeals Panel said the issue of whether the employer was required to provide the treatments was moot because the employer had paid for them. However, the award of associated fees was denied since the worker offered no evidence to establish that the recommended treatments were causally related to her compensable injuries.

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