Legal Corner

ADA

Recent EEOC settlements

  • Des Plaines, Ill.-based M&M Limousine Service will pay a deaf job applicant $30,000 to settle a disability discrimination lawsuit for refusing to hire the applicant based on his disability and failing to consider whether he could do the job with or without reasonable accommodation.
  • Washington-based Prestige Care, Inc., Prestige Senior Living, LLC, and their affiliates will pay $2 million and furnish other relief to settle a disability discrimination suit. The company had policies requiring employees to perform 100% of job duties without restriction, accommodation, or engaging in the interactive process and inflexible leave policies.
  • Barnhart, Mo.-based, Home Service Oil Company, doing business as Express Mart, will pay $25,000 and furnish other relief to settle a disability discrimination suit for failing to hire a job applicant with Tourette’s syndrome and neurofibromatosis for a part-time sales clerk position because of his medical conditions.
  • California-based local grocery outlet PAQ, Inc., doing business as Rancho San Miguel Markets, has agreed to pay $100,000 to settle a disability suit, reinstate the employee and improve its policies related to the ADA. A deli clerk with a disability provided Rancho San Miguel Markets a doctor’s note requesting an accommodation. Her request was denied, and she was subsequently fired.

Workers’ Compensation

30-day grace period to avoid legal fees not extended for holidays and weekends – Florida

In Zenith Ins. Co. v. Cruz, an appellate court ruled that a carrier has 30 calendar days from its receipt of a petition of benefits to rescind a denial of the claim to avoid the imposition of legal fees and that is not extended if the thirtieth day falls on a weekend or holiday. In this case, the claim was initially denied and the 30-day grace period expired on a Saturday. On the Monday, following the 30-day grace period, the employer/carrier rescinded the denial, agreed to pay all benefits, and issued an indemnity benefits check.

The employee was awarded a claim for attorney fees and the carrier appealed. Although rule 60Q-6.109 of the Rules of Procedure for Workers’ Compensation Adjudications provides that if any act required or allowed to be done falls on a holiday or weekend day, performance of the act may be satisfied if done on the next regular working day, the court held that an administrative rule cannot supersede the language of the statute. The statute does not specify business days and precedent has treated other deadlines concerning the filing and receipt of petitions as referring to calendar days.

Positive alcohol test doesn’t nix benefits – Florida

In Krysiak v. City of Kissimmee, a utility technician for the city injured his shoulder. Earlier in the year, he was reprimanded for purchasing beer in a city vehicle, signed a last-chance warning, and completed an employee assistance program. When he returned to full duty, he was still receiving temporary partial disability benefits, missed several days of work without calling in, and a letter was drafted terminating him for job abandonment. However, he returned to work before the letter was sent. When he did report to work, his supervisor was concerned about his ability to work and HR ordered an alcohol and drug test, which came back positive for alcohol. He was terminated for violating the city’s substance abuse policy.

The city has a policy prohibiting workers from being under the influence of alcohol while at work, but the policy does not designate a specific prohibited alcohol level or define the phrase “under the influence.” While a JCC ruled that temporary partial disability benefits were barred since he was terminated for misconduct, an Appeals court disagreed. The city did not present the results of the drug test and simply saying he did not look fit to work was insufficient and remanded the case.

Bus driver who suffered stroke not entitled to comp benefits – Georgia

In Henry County Board of Education v. Rutledge, while warming the air brakes a bus driver noticed smoke or steam coming out of the dashboard and lost consciousness. He had suffered a stroke and filed a workers’ compensation claim. The case bounced between the courts and Board of Workers’ Compensation, revolving around whether exposure to a substance from the bus contributed to or worsened his pre-existing conditions (hypertension and diabetes) and risk for stroke.

The Court of Appeals explained that a stroke is generally not compensable unless the employee can show that his work was a contributing factor. Since the Board had analyzed whether his exposure contributed to or aggravated his injury, it was correct in denying the claim.

Employer cannot be penalized for unreasonably denying medical treatment – Illinois

In O’Neil v. Ill. Workers’ Comp. Comm’n, a divided Appellate Court ruled that the Workers’ Compensation Commission does not have statutory authority to assess penalties against an employer for a failure or delay in authorizing reasonable and necessary medical treatment. A marine technician received approval for surgery for an injury to his right knee, but delayed surgery because he was the only marine technician on staff and it was a busy time. About a week before the scheduled surgery, the employer’s carrier revoked the surgery authorization, indicating that there was a need for an additional investigation because they had found records of an earlier surgery on the knee.

An arbitrator found the earlier surgery was on the lower leg and that there was a causal relationship between the employee’s work and the knee condition. The arbitrator ordered surgery and assessed a penalty of $6,900 as well as the payment of legal fees. However, the Commission determined and the court agreed, it did not have statutory authority to award attorney fees and penalties.

Widow denied benefits because of husband’s preexisting condition – Massachusetts

In Arruda v. Zurich American Insurance Co., an appeals court reversed a district court decision awarding death benefits to the widow of a utility’s sales executive killed in a work-related car crash. He crashed his car on the way to a work-related event, crossing all lanes of traffic.

The autopsy conducted after his accident listed the primary cause of death as heart disease, with spine fracture due to blunt impact as a contributory factor and the police said he experienced a medical episode. His preexisting conditions included hypertension, cardiomyopathy, depression, anxiety, high cholesterol, diverticulosis, insomnia, fatigue, muscle pain and weakness, and fainting spells. Four months before the accident, he had felt weak and fainted and had an implantable cardioverter-defibrillator placed in his chest.

The court found the insurance company presented substantial evidence that his death was caused or contributed to by preexisting medical conditions.

Staffing agency fined $55,000 for misclassifying workers – Massachusetts

Delta-T Group Massachusetts Inc., a national staffing agency that places education sector workers in temporary positions, has been cited $55,000 in penalties for misclassifying employees by the Attorney General. It has agreed to modify its practices to require all school workers who use its services be treated as employees going forward. The state uses a three-prong test, similar to California’s ABC test.

Comp exemption for North Dakota businesses upheld – Minnesota

In John Devos vs. Rhino Contracting, the state Supreme Court issued an order (but not a full opinion) upholding the decision of an appeals court that a law that gives a special workers’ compensation exemption to North Dakota employers is not unconstitutional. North Dakota has a monopolistic comp system and significantly lower benefits than Minnesota.

A 2005 law excludes injured employees of North Dakota companies from collecting Minnesota benefits if they worked in Minnesota for fewer than 240 hours in a calendar year. It was designed to give small businesses, such as mom-and-pop pizza places that delivered into Minnesota, a break so they wouldn’t have to purchase comp insurance in both states.

Workers’ comp coverage not enough to trigger enhanced benefit for mesothelioma – Missouri

In 2014 the state passed a statute that allows a lump-sum payment equal to 300% of the state’s average weekly wage for 212 weeks in occupational mesothelioma claims resulting in permanent disability or death. A dairy farm worker was diagnosed in 2014 with mesothelioma caused by toxic exposure to asbestos that occurred at work and died a year later. He and his adult children filed for a comp claim with enhanced benefits. The farm had closed in 1998.

The case, Vincent Hegger et al. v. Valley Farm Dairy Co., made its way to the state Supreme Court. The court upheld lower decisions that employers have to take affirmative action to elect the enhanced benefits, simply having a workers’ comp policy was not sufficient. The court added that, under the plain language of the statute, employers that do not make the requisite affirmative election for the enhanced benefit have rejected such liability and are thereby exposed to civil suit. Since the farm had closed 16 years before the statute, it could not affirmatively elect to accept liability for the enhanced benefit.

SLU awards must be made for body members, not subparts – New York

In Matter of Johnson v. City of N.Y., a patient care technician sustained work-related injuries to both his knees and in another later accident to his neck, back, shoulder and hip. When it was determined that the scheduled loss of use (SLU) must be reduced by his prior SLU awards of the legs, which encompassed both hip and knees, the employee appealed. Upon appeal, the court noted SLU awards are limited only to those “members” statutorily enumerated in the statute or guidelines. A leg is listed as a statutorily-enumerated member, but not its subparts.

NFL player not a seasonal worker – Pennsylvania

Acknowledging that in earlier decisions, the appellate court had held that injured NFL players are “seasonal” employees for purposes of computing their average weekly wage, the court held that circumstances in Pittsburgh Steelers Sports, Inc. v. Workers’ Comp. Appeal Bd. (Trucks) were different.

Here, the player had a two-year contract, was required to attend all minicamps, practice sessions, to make public appearances and perform other services at the discretion of the employer. This meant he was not a seasonal worker.

Failure to establish a reasonable degree of medical certainty nixes benefits – Tennessee

In Armstrong v. Chattanooga Billiard Club, an employee suffered an electrical shock and alleged injuries to her mouth, face, and right arm. The employer’s physician argued that the dental injuries were not caused by the electrical shock, whereas the employee’s physician said they “could be.” In 2014 the Workers’ Compensation Reform Law strengthened the statutory requirement for compensability. An injury was not compensable unless it arose primarily out of and in the course and scope of employment and causation had to be established to a reasonable degree of medical certainty.

The Appeals Board found the employee’s doctors “could be” opinion insufficient to satisfy the statutory causation standard.

Benefits awarded under occupational disease presumption despite history of heart disease – Virginia

In City of Newport News v. Kahikina, an appeals court affirmed the Workers’ Compensation Commission’s award of benefits to a police officer for heart disease. In 2017 he filed for workers’ compensation benefits, stating his cardiomyopathy was caused by the stress of his job. As early as 2004, he began having heart problems and in 2011, a cardiologist diagnosed him with cardiomyopathy and attributed his irregular heartbeats to his consumption of Red Bull. In 2015, he was hospitalized for chest pain and diagnosed with “unstable angina” as well as hypertension, diabetes and high cholesterol. The Commission found that this episode triggered the two-year statute of limitations and that his claim was timely filed.

The city argued the statute of limitations should have begun with his first diagnosis of cardiomyopathy and, therefore, the claim was untimely. The appellate court disagreed, noting the employee did not know that his occupational disease arose out of and in the course of his employment until the 2015 incident.

Worker who was denied benefits and attempted suicide cannot sue – Wisconsin

In Francis G. Graef v. Continental Indemnity Company, a livestock worker was gored by a bull, became depressed, and was prescribed anti-depressants. About three years after the incident, the insurance company denied refilling the prescription. A month later he attempted suicide by shooting himself in the head. Surviving the attempt, he sued the insurance company that argued the exclusive remedy applied. While a circuit court denied summary judgment to the insurer, the appeals court said the issue should stay with the state’s workers’ compensation system. “(T)he exclusive remedy provision allows for an insurer to be held liable for an employee’s new or aggravated injuries, regardless of fault, as long as those new injuries relate back to the original compensable event.”

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