Legal Corner

FMLA 
PTSD triggered by supervisor warrants suit reinstated under FMLA but disability charge dismissed under ADA

In Cindy Tinsley v. Caterpillar Financial Services Corp., a former financial services worker complained about a hostile work environment created and allowed by her supervisor (allowing coworkers to bounce stress balls off the ground), unrealistic deadlines and excessive workload. She requested a transfer or leave and was granted the leave, but not the transfer. Shortly after completion of 18 weeks of leave, she received a negative performance review and was placed on an improvement plan, which she would not sign. She then retired because the company denied her requests for additional leave or a new supervisor.

She filed lawsuits alleging Caterpillar had violated the ADA by not providing her with reasonable accommodations and had retaliated against her for making an FMLA claim. While she argued her PTSD limited only her ability to perform the major life activity of “work,” the three-judge panel of the 6th Circuit upheld the dismissal because her PTSD did not substantially limit her from performing a class of jobs or broad range of jobs.

The ruling, however, reinstated her FMLA retaliation charge. It said she had succeeded in making the prima facie case of availing herself of a protected right under the FMLA and that the company had not provided a legitimate, non-discriminatory reason for the adverse employment action. The case was remanded to the district court.

Workers’ Compensation 
Bunkhouse rule means farm-related injury compensable – California

In Gonzalez v. Athwal Farms, a farm worker lived on the farm in a rented trailer and was seriously injured on a Sunday when he was driving across the farm to check several agricultural pumps before heading to a store. Prior to the accident, he had been drinking beer with friends. The “Bunkhouse Rule,” which applies when the nature of work necessitates the employee live on the employer’s premises and the injury has a causal relationship to the employment, was applied by the WCJ and affirmed by the panel. While evidence was presented that the employee had consumed four to eight beers, the farm failed to establish an affirmative intoxication defense.

IMR physician required to review entire record – California

In Bowen v. County of San Bernardino, the WCAB affirmed the WCJ’s decision granting the applicant’s appeal of the denial of the continued use of the prescription drug, Norco. While the IMR found that there was no documentation of functional improvement with the use of Norco, the reviewer had not looked at all the submitted reports nor considered the entire record prior to rendering the determination.

Asbestos exposure has very long tail – Florida

In Meehan v. Orange County Data & Appraisals, an appellate court overturned a judge’s decision allowing an employer to end its coverage of asthma medications for a worker who suffered breathing problems after exposure to asbestos in the late 1990s. Fifteen years later, the employer terminated coverage for treatment based on a peer review of the case.

The judge found the doctor for the insurer who determined that treatment was no longer necessary more credible and approved the termination. The appeals court reversed, finding that no “competent, substantial evidence” existed to deny treatment and that the employer and the insurer had accepted the claim as compensable. Once the compensability of an injury is established, an employer cannot challenge the causal connection between the work accident and the injury.

Employer must authorize treating physician but cannot be compelled to pay excessive fees – Florida

In MarineMax Inc. v. Blair, a worker who had received treatment after a fall from a ladder sought to resume treatment with the same physician. The physician had begun his own practice and demanded payments in advance which were beyond legislative statutory rates. The company authorized treatment with another physician but the employee refused, arguing he had an existing patient-physician relationship.

A judge of compensation claim (JCC) ordered the employer to “authorize and pay” the doctor, but a majority of the District Court of Appeals reversed in part. While it acknowledged that the company could not “deauthorize” the doctor, the company could not be compelled to provide payments that exceed the applicable fee schedules.

Fall during lunch break not compensable – Georgia

In Daniel v. Bremen-Bowdon Investment Co., an employee on lunch break was walking to her car, which was parked in the employer’s lot. She fell on a public sidewalk on the way to her car. While an ALJ found she was entitled to benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

State law provides an “ingress and egress” rule, which allows benefits if the injury is on employer’s premises in the act of going to or coming from the workplace. However, there is a “scheduled break exception,” which does not allow benefits for injuries occurring during a regularly scheduled break when the worker is free to do as he/she chooses. Since the injury occurred while she was leaving her workplace during her regularly scheduled lunch break, it was not compensable.

Supreme Court to decide whether workers’ compensation settlement can be exempt in a bankruptcy proceeding – Illinois

In Re Hernandez, No. 18-1789, the 7th U.S. Circuit Court of Appeals certified the question whether the proceeds of a workers’ comp settlement can be exempt from the claims of medical care providers who treated the injury or illness associated with that settlement. When the worker filed for Chapter 7 bankruptcy, she reported as exempt her pending workers’ comp claim, which was settled for $31,000 two days after her filing. She owed over $125,000 to three health care providers.

The circuit said it was not willing to decide because the Act never said which assets were available to healthcare providers and both parties had plausible arguments.

Discrimination suit not barred by exclusive remedy – Minnesota

In a split decision, the Supreme Court ruled that an employee, who sustained a work-related injury and who was receiving workers’ compensation benefits, may proceed with a suit against his employer under the state’s Human Rights Act (“HRA”). In Daniel v. City of Minneapolis, a firefighter received workers’ comp for injuries to his right ankle and was reimbursed for the cost of a pair of tennis shoes, rescue boots and orthotic inserts.

After a few weeks he was told he could not wear the black tennis shoes because they did not comply with the Department’s policy for station shoes. He reinjured his ankle and later injured his shoulder when he lost his footing.

He was placed on light duty, but not allowed to wear the tennis shoes, which he considered necessary to perform the light duty.The Department then placed him on leave and said he could return if his work restrictions allowed him to wear shoes that were compliant with their footwear policy. While there were several meetings to try and find a shoe that would work for both parties, no agreement was reached.

The firefighter alleged that the city had violated the HRA by not providing the reasonable accommodation of allowing him to wear doctor-prescribed shoes inside the station house. He also alleged that the city retaliated against him for requesting an accommodation. A trial court determined the claim under the HRA was not barred because the workers’ comp act did not provide a remedy for his discrimination claim; however, a court of appeals reversed. The Supreme Court held that the employee could pursue claims under each act (Workers’ Compensation Act and Human Rights Act) because they each provide a distinct cause of action that redresses a discrete type of injury to an employee.

Disability benefits can’t offset TTD award – Minnesota

In Bruton v. Smithfield Foods, the Supreme Court has ruled that an employee’s claim for temporary total disability benefits cannot be offset by benefits paid to the employee for the same period of disability under the employer’s short-term disability plan. While the court recognized the decision penalized the employer for their wage-loss benefit, it noted “there is no statutory authority for an offset of workers’ compensation benefits by the amount of benefits paid under an employer’s self-funded, self-administered STD plan in state law governing workers’ comp.”

PTD award not properly challenged, but medical payments reduced – Missouri

In Customer Engineering Services v. Odom, an employee suffered serious injuries while moving a 250-pound photo printer. When he reached MMI, he still had pain and his personal doctors found he had complex regional pain syndrome. For some time he received physical therapy and pain management covered by his wife’s insurance, totaling $36,539.

He never returned to work and an ALJ found him to be permanently and totally disabled. The company appealed, but an appellate affirmed the ruling. The court said the rules of appellate procedure require CES to support all the factual assertions in its argument with specific page references to the record, and the company failed to comply. It also noted the company ignored the evidence that supported the PTD award and focused only on evidence that supported its position.

The court, however, reduced the medical liability by $2,510 since the employee received some treatment before informing the employer of the need for continued treatment.

Contractor liable for injuries to subcontractor’s employee – Nebraska

In Martinez v. CMR Construction & Roofing, the Supreme Court ruled the contractor was the statutory employer of a man who sustained serious injuries after he fell off a roof, even though he was acting as an employee of a subcontractor. Texas-based CMR had verified the subcontractor’s workers’ comp insurance and directed the subcontractor to add the company to the policy and produce a certificate demonstrating that the company would be notified of any changes to the policy.

After the accident, it learned the subcontractor’s insurance had been cancelled a few months earlier for nonpayment. CMR appealed the decision of lower courts arguing it did not qualify as a statutory employer because it required its subcontractor to obtain workers comp insurance. However, the Supreme Court disagreed, noting the Texas-based comp insurer had never been authorized to issue workers’ comp coverage in Nebraska and that the policy clearly showed that coverage did not extend to states other than Texas.

Court weighs in on comp benefits for medical marijuana – New Hampshire

In Re Appeal of Panaggio, the Supreme Court said the state’s medical marijuana laws do not bar a request for reimbursement, overruling a decision by the Workers’ Compensation Appeals Board. While it found workers’ compensation insurers provide payments for medical treatments and that they may be subjected to the same state statutes that cover medical cannabis as a viable medical treatment, it failed to address the question of whether such a practice conflicts with federal law. The court remanded the question back to the Board.

Retroactivity question key to indemnification of contractor – New York

In Guthorn v. Village of Saranac Lake, a project manager of a subcontractor fell from a ladder and suffered injuries. While the contractor had drafted a subcontract that required the subcontractor to indemnify the contractors against any claims arising out of its work on the project, the subcontractor began work and the injury occurred before the contract was executed. When the contractor discovered it did not have an executed contract, it sent another subcontract agreement, which was executed, including the indemnification clause.

The Appellate Division, 3rd Department noted that the Workers’ Compensation Law requires an express written agreement for indemnification. An indemnification agreement executed after a workers’ accident can be applied retroactively if the agreement was made prior to the incident and the parties intended to apply it as of that date. The court denied summary judgement, noting a question regarding whether the agreement was intended to apply retroactively.

Company car does not make injury during commute compensable – North Carolina

In Wright v. Alltech Wiring & Controls, an appeals court denied benefits to the widow of employee killed in auto accident. The company provided a vehicle to the worker who visited client job sites to prepare estimates. His normal routine was to go to the office before visiting the job sites and return to the office at the end of the day. He used the company car for the commute to and from work.

One day, after leaving work he spoke to the owner of the company briefly on his cellphone, then stopped at a Target store. After leaving Target, he was in a vehicular accident on his normal route and died from his injuries. The widow filed for comp benefits, but an appeals court upheld the findings of the Commission that the death did not occur in the course and scope of his employment. In most cases, injuries occurring during a worker’s commute are not compensable, and the company handbook made it clear that commuting to and from work was not considered work time.

Forum state means wrongful death claim is subject to a subrogation lien – North Carolina

In Walker v. K&W Cafeterias, a truck driver was killed in a motor vehicle accident while driving for his employer in South Carolina. His widow was awarded $333,763 in workers’ compensation death benefits in North Carolina. She also filed a wrongful death claim against the at-fault driver in South Carolina, which was settled for $962,500, most of which came from underinsured motorist (UIM) coverage.

The employer sought and was awarded a subrogation lien for the total amount of death benefits. While South Carolina law does not allow for subrogation of UIM proceeds for workers’ compensation benefits, the N.C. Court of Appeals noted under traditional conflicts of law, procedural and remedial issues are determined by the law of the forum where the remedy was sought. Subrogation rights on UIM funds are procedural and remedial in nature and the forum where relief was sought was North Carolina.

Domestic service exception nixes benefits for in-home caregiver – Pennsylvania

In Van Leer v. Workers’ Comp. Appeal Bd, the Commonwealth Court ruled that an in-home caregiver was not eligible for comp benefits. The caregiver worked for a woman suffering from mild dementia and her primary responsibilities were to get the woman ready for bed, make sure she got her medications and stayed in bed throughout the evening.

The workers’ comp act is not applicable to any person “who at the time of injury is engaged in domestic service,” which is based on whether the worker serves “the needs of the household.” The court upheld earlier decisions that the caregiver’s job duties consisted entirely of service to members of the household. In this case, the dementia patient was the household.

Injuries while attending mandatory off-site training not compensable – Virginia

In City of Va. Beach v. Hamel, an appellate court reversed an award of comp benefits to a licensed professional counselor who was injured when she tripped and fell over raised tree roots when she was attending an off-site mandatory training. The court noted that while the counselor may have been mandated to attend the meeting at a community college, she had not been told where to park or which route to take to the building. Her risk of falling was equal to that of any member of the general public.

Electrocuted airport worker not entitled to benefits – Virginia

In O’Donoghue v. United Continental Holdings Inc., a divided appeals court upheld the decision of the Workers’ Compensation Commission that a United Airlines Inc. employee’s injuries were caused by “an act of God” and not compensable. The employee was a ramp serviceman loading and unloading airplanes. The ramp was temporarily closed during a thunderstorm and when it reopened the worker positioned a metal ladder next to the airplane that had just arrived. When he touched the toggle switch to open the cargo door, he felt electricity go through his body and reported he had been struck by lightning.

Under the statute, the mere occurrence of an injury due to a lightning strike while at work is insufficient; it must be proved that the conditions of the employment collaborated in causing the injury. It could not be assessed whether being injured by a lightning strike was an actual risk of the conditions of employment, thus, it was not compensable.

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