Month: September 2019

ADA 

Employee unable to wear safety shoes can be terminated

In Holmes v. General Dynamics Mission Systems Inc., a U.S. District Judge in Virginia dismissed an employee’s claims alleging violations of the ADA after she was terminated for being unable to perform the essential functions of her job, specifically, wear required safety shoes. She worked at the manufacturing facility for 18 years and was given an exemption in 2003, based on a note from her doctor.

However, the company stopped exempting her in 2013 because an outside auditor found violations of the protective footwear policy and stated that future violations could jeopardize the company’s certifications. The company did research and present alternative footwear to her and when none were acceptable, she was placed on an excused absence and encouraged her to seek custom-made safety shoes, which the company would reimburse.

After more than two years of absence and no evidence that she pursued the custom-made shoes, she was terminated.

Employer’s failure to raise “regarded as” defense results in jury award to employee

In Robinson v. First State Community Action Agency, a manager told an employee she either had dyslexia or didn’t know what she was doing and placed her on a performance plan. She sought a medical opinion about dyslexia, which was not conclusive, and gave it to her manager who gave it to HR. The HR Director told her the evaluation did not have any impact on her ability to perform essential job functions, and she was to follow the performance improvement plan and she then sought a reasonable accommodation. A few weeks later she was fired.

She sued, alleging the employer regarded her as disabled and failed to provide a reasonable accommodation and a jury agreed. The employer appealed, arguing that the jury instructions didn’t reflect changes that the ADA Amendments Act in 2008. While the 3rd Circuit agreed that the jury instruction was made in error, and “after the 2008 amendments went into effect, an individual who demonstrates that she is ‘regarded as’ disabled, but who fails to demonstrate that she is actually disabled, is not entitled to a reasonable accommodation,” the employer had waived the right to contest it because it had not opposed the use of the argument earlier.

The case is a harsh reminder of the importance of raising all possible defenses early in the litigation to preserve the rights on appeal.

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

In Ingram v. Six Flags Entertainment Corp., an appellate court declined to overturn a jury trial verdict that declared Six Flags was not negligent for the injuries suffered by two workers who were electrocuted while repairing a ride. Although one of the electricians thought he had deenergized the equipment at Magic Mountain, there was an arc flash explosion, which caused serious burns.

They sued the parent company, Six Flags, arguing it failed to provide appropriate personal protective equipment and made changes to its safety program after the incident. However, Six Flags has a policy that forbids working on energized electrical equipment, provides training on how to shut off power, and successfully argued to exclude its post-incident safety program changes from the trial.

Failure to return to light duty work nixes award of TPD – Florida

In MJM Electric Inc. v. Spencer, an appellate court reversed a judge of compensation claims’ decision in favor of an injured worker because the employer had offered suitable light duty work. The electrician was injured at work and saw an authorized physician, but never returned to work in spite of multiple messages from his employer that light-duty work that fell within his work restrictions was available.

After two weeks of no response, the company fired him for job abandonment. He argued he did not recognize the number and had no voice mails. The judge of compensation claims found he was not entitled to temporary partial disability benefits for the first two weeks after his accident, but he could receive disability benefits after his termination because the company failed to meet its burden of showing suitable employment opportunities. The appeals court reversed and remanded the case.

Tort suit against subcontractor can proceed – Florida

In Heredia v. John Beach & Associates, an appellate court ruled that a man working for a subcontractor can sue another subcontractor and an employee. The injured employee was working for QGS, a subcontractor doing roadwork for Lennar Homes LLC and was accidentally struck by a truck owned by another subcontractor, John Beach & Associates, that was doing surveying work.

Under the law, when a contractor sublets work to subcontractors, all employees of the contractor and subcontractors are considered employed in one and the same business and are protected by the exclusive remedy provision. However, the court found in this case, Lennar was not performing any work, was not subletting work, and therefore, was not a contractor. The case can proceed.

Average weekly wage should be based on actual earnings not pro-ration wage – Georgia

A school custodian worked a school year schedule, but had his wage spread out over a 12-month period. In Ware County Board of Education v. Taft, an appellate court ruled that his wages should be based on his contractual rate, not the lesser actual pro-rated amount he earned during the 13-weeks preceding his injury.

Supreme Court provides guidance on PTSD provisions – Minnesota

In Smith v. Carver County, the state Supreme Court reversed a decision by the state’s Workers’ Compensation Court of Appeals (“WCCA”), finding the 2013 PTSD statute does not require a compensation judge to conduct an independent assessment to verify that the diagnosis was in conformity with the Diagnostic and Statistical Manual of Mental Disorders (DSM) before accepting the expert’s diagnosis.

The case involved a deputy sheriff who resigned after 10 years and was diagnosed with PTSD by a licensed psychologist. However, an independent psychological evaluator opined that he did not have PTSD, although he had adjustment disorder with anxiety. A WCJ found this opinion more persuasive and denied the claim. The WCCA overturned, finding this opinion did not address the PTSD criteria in the latest version of the DSM.

Nonetheless, the Supreme Court reversed noting the compensation judge’s legalistic analysis of the DSM-5 was not to become a substitute for the professional judgment of psychiatrists and psychologists and the judge did not err in finding the independent evaluation more persuasive.

High court rules no fault auto insurer must pay for injured driver’s excess chiropractic charges – Minnesota

In Rodriguez v. State Farm Mut. Auto. Ins. Co., an injured bus driver received 12 weeks of chiropractic treatments, the maximum allowed under the state’s workers’ comp law. She then sought treatment from another chiropractor and payment from her personal automobile insurance policy, which denied payment based on the workers comp payments.

The case made its way to the Supreme Court, which ruled the additional care fell outside of the comp statute because it was with a separate provider whose services had never been characterized as excessive.

Jury verdict of $74.1 million upheld in worker’s death – Missouri

The Ford Motor Co. must pay the widow of a truck driver who was struck by machinery while making a delivery at the Kansas City Assembly Plant ruled an appellate court in Ford v. Ford Motor Co. The driver, who had worked for the trucking company for less than two weeks, was delivering vehicle seats, which were removed by an L-shaped pair of conveyor lines. He entered the area between the conveyor belts to manually clear a jam during seat removal and stepped into a “pinch point” between the tables and was crushed.

The company appealed a jury verdict that assigned the company 95% comparative fault for his death and awarded his widow and son $38 million in compensatory damages, and $38 million for aggravating circumstances. The appeals court disagreed and upheld the award. The company plans to appeal to the state Supreme Court.

Right to cross-examine employer’s expert wrongfully denied – New York

In Matter of Ferguson v. Eallonardo Construction, an appellate court ruled that a worker was wrongfully denied the opportunity to cross-examine the insurance carrier’s medical consultant on how the permanent impairment rating of 40% was reached. While the counsel for the injured worker did not file a competing report, the court ruled that the right to cross-examine the carrier’s consultant was not predicated upon the filing of a competing report. The only requirement is that a request be made at a hearing, prior to the judge’s ruling on the merits.

Failure to complete application sufficient for denial – New York

In Matter of Jones v. Human Resources Administration, an appellate court ruled that an attorney’s failure to fill out every section of an application for administrative review was a proper basis for the Workers’ Compensation Board to deny it. While the worker received benefits for an work-related injury, she was later denied the request to add additional consequential injuries to her claim. There was a no information in the box for question 13 of the RB-89 form, which requested hearing dates, transcripts, etc.

Heart injury hours after accident compensable – North Carolina

In Holland v. Parrish Tire Co., a three-judge panel of the Court of Appeals reversed the Industrial Commission’s decision that a worker’s heart injury that occurred hours after he was hit in the chest with a tire was not compensable. While unloading tires for a delivery, he was hit in the chest by a tire that weighed between 100 and 200 pounds. The owner transported him to an urgent care center because he had turned gray and was uncharacteristically slow, where he was sent to an emergency room. There he was diagnosed with an aortic dissection and a collapsed lung and admitted to the intensive care unit.

He underwent surgery and was told he would have a work restriction of being unable to lift more than 40 pounds indefinitely, and was diagnosed with major neurocognitive disorder due to the open-heart surgery, adjustment disorder, and depression. Later, he was rated permanently disabled and unable to work by a treating physician and filed for workers’ comp, which was denied.

The appellate court found that the commission had not adequately considered physicians’ testimony that aortic dissections could be caused by trauma.

No comp for traveling salesman for car accident after celebration with coworkers – Pennsylvania

In Peters v. Workers Compensation Appeals Board (WCAB), a traveling salesperson drove past his house on his way to a happy hour with colleagues and was injured in a car accident when returning home. Although he argued that he was traveling home from a work-sponsored event in a work van, and that as a traveling employee, his accident should be compensable, a judge, the WCAB, and the Commonwealth Court disagreed. It found that the gathering was not furthering the interest of the employer, but rather was a social gathering. Further, while a traveling employee is presumed to be within the course and scope of employment when he is driving to or from work, he had abandoned his employment by driving past his house on his way to the happy hour with colleagues.

Failure to use an automated external defibrillator not breach of duty – Pennsylvania

In Desher v. Southeastern Pennsylvania Transportation Authority, an appellate court judge affirmed a trial court ruling denying the guardian of a worker, who suffered a cardiac arrest and a subsequent brain injury at work, damages under the Federal Employers Liability Act (FELA). The guardian claimed the former employer was liable for the incident for not administering an automated external defibrillator (AED).

While the company had an AED within 100 yards of the incident, it did not use it and paramedics arrived within two minutes and used one. There was no evidence suggesting a heightened risk of cardiac events for employees or that it provide assistance in the form of an AED.

Continuing denial of opioids affirmed – Pennsylvania

In Jason Golembesky v. Workers’ Compensation Appeal Board (Worth & Co. Inc.), a manufacturing worker had been on high doses of opioid oxycodone since his injury in 2010. In 2016, the employer filed a utilization review petition, and the reviewing doctor opined that the opioid prescription was excessive. The worker filed a petition for review of the findings, arguing he had tried alternative methods of controlling the pain, which had not worked. The employer also presented evidence from an independent review doctor who noted the worker was taking massive dosages, essentially three times what is considered a high dose of morphine equivalent.

A WCJ and the WCAB found the opinions of the independent reviewers more credible than those of the worker’s providers.

More than ten years after injury, worker awarded benefits for right knee condition – Virginia

In Nanochemonics Holdings, LLC v. McKinney, a worker sustained a work-related left knee injury. More than ten years later, he filed a claim for a right knee condition. Stressing that the employer is responsible for all sequelae that flow from the primary work-related injury, an appellate court affirmed the award benefits, noting that the problem was caused, at least in part, by an altered gait brought about by his earlier left knee injury. While it acknowledged that the worker was morbidly obese, this did not amount to a sufficient break in causation.

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