Legal Corner

ADA 
Court clarifies ADA website accessibility obligations

When the ADA was enacted, Congress did not anticipate the role of the Internet and focused on physical access barriers. Title III does not provide guidance for the Internet or web-based and mobile applications, but it does not limit coverage to brick-and mortar locations or exclude online locations. As a result, there have been a number of lawsuits and the decisions are split regarding whether Title III’s definition of “public accommodations” is limited to physical spaces.

For the first time, a U.S. Court of Appeals has ruled on this issue in Robles v. Domino’s Pizza. The Ninth Circuit held that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impedes access to the goods and services of its physical pizza franchises, which are places of public accommodation.

Critical to the decision was the nexus between Domino’s website and app and physical restaurants. While technically this ruling only applies to states covered by the Ninth Circuit, it reflects a nationwide trend and the DOJ’s position that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards, the Web Content Accessibility Guidelines (“WCAG”), developed by the World Wide Web Consortium.

Workers’ Compensation 
Timeliness of denial of benefits clarified – Florida

Florida statutes allow an employer to pay benefits to a worker while investigating his claim, for up to 120 days. An employer waives the right to deny compensability unless it can establish material facts that it could not have discovered through reasonable investigation within the 120-day period.

In Rente v. Orange County BOCC, the employer issued a notice of denial eight months after the injury. A judge allowed the denial, finding the injured worker had made misstatements to the spine surgeon about his prior symptoms and treatment to his low back, which was the proximate cause of delay in the employer’s decision to contest his claim. However, the 1st District Court of Appeals reversed and remanded, noting the judge needed to make a determination of when the employer had material facts regarding the issue of causation and compensability, which would trigger the employer’s 120-day period to commence an investigation and either accept or deny his claim.

Workers’ comp settlement does not bar recovery in tort suit – Illinois

In Armstead v. Nat’l Freight, Inc., a semi-truck driver for a Pennsylvania corporation sustained injuries in a vehicular accident with a National Freight truck in Grundy County. The Pennsylvania work comp settlement described his injury as a knee strain and noted its terms did not bar subsequent third-party action against various defendants for injuries he alleged he sustained to his back and shoulder.

He also sued National Freight and the driver, but they argued he could not present evidence of injuries other than to his knee, since the settlement said that it was his only injury. An appellate court reversed the circuit court’s grant of partial summary judgment and remanded for further proceeding, noting a statement could not be considered a judicial admission when it was made in the course of another proceeding and could not be used to bar his tort claim.

No extra benefits for worker who did not seek job rehab services – Illinois

In Euclid Beverage v. The Illinois Workers’ Compensation Commission et al., a long-term worker in the beverage distribution industry injured his back and was terminated because he could not be accommodated on light duty. He received temporary total disability, maintenance, and permanent partial disability benefits.

Shortly after his termination, he was offered a job that did not rely on physical ability, but he declined to interview. A few years later, the employer filed for review and the Circuit Court overturned the award for maintenance benefits, “finding that the record did not demonstrate that the claimant participated in a vocational rehabilitation program or (a) self-directed job search.” State law only mandates that an employer pay maintenance benefits if an injured worker was or is enrolled in a vocational rehabilitation program.

Worker must show disability made it impossible to secure work – New York

In Matter of Figueroa v Consolidated Edison Co. of N.Y., Inc, an office assistant who worked for approximately 41 years began to experience pain in her hands and wrists and filed a claim for workers’ compensation benefits. Shortly thereafter, she retired from her position at the age of 59.

Three years later she began efforts to reenter the job market, attending an orientation session, taking classes on preparing a résumé and cover letter to assist her in finding a job and subsequently submitting job applications to various retail companies. The employer challenged the Board’s award of benefits during the time period she had reattached to the labor market. The court agreed that she had to demonstrate her inability to obtain work was due to her causally-related disability, as opposed to her age, economic conditions or other factors. It found the Board’s decision to award claimant wage replacement benefits during the period of her labor market reattachment was not supported by substantial evidence.

Worker’s estate entitled only to portion of posthumous schedule loss of use award – New York

In Matter of Estate of Youngjohn v Berry Plastics Corp., an appellate court noted that when an injured employee dies without leaving a surviving spouse, child under 18 years old or dependent, only that portion of the employee’s schedule loss of use (“SLU”) award that had accrued at the time of the death is payable to the estate. That rule applies even when the SLU award is posthumous.

Temporary worker cannot maintain tort suit against borrowing employer – New York

In Ferguson v. National Gypsum, a temporary worker was injured while working for National Gypsum and filed suit seeking damages. The Appellate Division’s 4th Department found the claim was barred by the exclusive remedy provision of the Workers’ Compensation Law based on the special employer concept. Since National had complete and exclusive control over the manner, details and results of the injured worker’s work, the court said the company was his special employer and enjoyed immunity from civil liability.

Family of worker killed cannot sue in civil court – North Carolina

An appeals court ruled that workers’ comp is the only recourse for a family of a mechanic crushed to death while repairing a machine at a plywood manufacturing plant. The deceased was hired by a staffing agency, but the manufacturer controlled the worker’s day-to-day work activities, controlled the work the worker performed and paid him an hourly wage. Therefore, the plywood manufacturer was the worker’s special employer and it could not be liable in a wrongful death action. – Estate of Belk v. Boise Cascade Wood Prods., L.L.C.

Superior court judges have broad discretion in review of attorney fees – North Carolina

Overturning a decision by the Court of Appeals, the Supreme Court noted that superior court judges have broad discretion to review the reasonableness of an attorney fee award provided by the state Industrial Commission. In Saunders v. ADP Totalsource Fi Xi, the court noted that under state law, the commission must approve a fee for an attorney in a workers’ compensation case. However, if the attorney disagrees with the commission’s decision, he/she can seek a review by a superior court judge.

Parent company not liable for death of subsidiary’s employee – Pennsylvania

In Grimsley v. Manitowoc Co. Inc., a worker was killed when he was pinned between two cranes. The employer, Grove U.S., LLC, was fined by OSHA and the widow received workers’ comp benefits. Later, she filed a wrongful death and survival action asserting negligence and strict liability against the parent company, Manitowoc Co., arguing the crane was owned by Manitowoc and branded with its logo.

The U.S. District Court granted summary judgment to the employer, parent company, and several other subsidiaries finding Grove was entitled to the exclusive remedy provision under the Workers’ Compensation Act and Manitowoc did not exercise significant control over Grove to establish liability.

Benefits continue for worker released to full duty – Pennsylvania

In an unreported case, Heartland Employment Services, LLC v. Workers’ Compensation Appeal Board (Ebner), a worker suffered a significant injury to the lumbar spine, including a herniated disc and lumbar radiculopathy and had spinal fusion surgery. The medical treatment was successful, and the injured worker was released back to work, without restriction.

The employer argued that an ability to work without restrictions mandates a finding of full recovery and termination of benefits. However, the court noted, “Employer appears to conflate the diagnosis of full recovery from a work injury with a physician’s release to return to work without restrictions. While Claimant was capable of returning to work, the WCJ found she had not recovered from the effects of her work injury.” As such, the WCJ did not err in granting benefits for medical expenses with wage loss benefits suspended upon Claimant’s return to work.

No comp benefits despite failure to use on-site defibrillator – Tennessee

In Chaney v. Team Techs, the Supreme Court, reversing a decision of a state trial court, found an employer isn’t liable for workers’ compensation benefits because they failed to use an automated external defibrillator (AED) that was available to help an employee who was suffering from a non-employment related medical emergency. Although the court noted that under the state’s emergency doctrine, an employer can be liable for benefits if it failed to render reasonable medical aid to an employee who had become helpless at work, the employer had called emergency responders and the doctrine could not be extended to require an employer to utilize an AED.

The first responders were able to revive the worker who collapsed because of a heart condition, but she suffered a permanent brain injury because of a lack of oxygen to her brain and sought workers’ comp benefits. While the employee’s injury had occurred in the course of the employment injury, it did not arise out of the employment.

Subrogation lien cannot include nurse case management expenses – Tennessee

In Memphis Light, Gas and Water Division v. Watson, a case of first impression, the Court of Appeals ruled that nurse case management fees are not recoverable as part of an employer’s workers’ compensation subrogation lien. A meter reader suffered injuries when she was attacked by a dog and received workers’ compensation benefits. She also settled a tort claim for $80,000.

Since the court had never decided whether an employer’s statutory subrogation lien extends to nurse case management fees, it considered an Illinois decision in which the cost of services for a “medical rehabilitation coordinator” had been excluded from the subrogation amount.

The court concluded that such fees are not included in a lien, since the provision of case management services is not mandatory and is for the benefit of an employer, not the worker.

Requirements for workers to receive additional PPD benefits clarified by Supreme Court – Tennessee

In Batey v. Deliver This Inc., a delivery driver injured his back and underwent surgery. Under Tennessee law, when a worker reaches maximum medical improvement for a compensable injury and receives a permanent medical impairment rating, they receive an “original award” of permanent disability benefits. There are various provisions for increasing this amount if the worker does not return to work when the award ends.

A trial court determined that he was entitled to 275 more weeks of permanent partial disability benefits. Although the WCAB found errors in “defining an employee’s burden of proof” and in defining the phrase “employee’s pre-injury occupation,” it noted the errors were harmless and the Supreme Court agreed. Both the appeals court and the state Supreme Court, however, denied a motion for prejudgment interest on his claim, citing the exclusive remedy provision in the comp law.

Violation of safety rule nixes benefits – Virginia

In Jones v. Crothall Laundry, a team leader at a commercial laundry entered a fenced area through an unapproved opening, instead of through the approved interlock gate that would have deactivated machinery inside the fence. An appellate court affirmed a finding by the state’s Workers’ Compensation Commission that the employee’s action constituted a violation of a known safety rule, that the violation was the proximate cause of his serious injury to a leg, and that the worker, therefore, could not recover workers’ compensation benefits. The employer had proved the rule was reasonable, for the benefit of the employee, that it was known, the employee intentionally breached the rule, and the breach was the cause of his injury.

Injured worker who was left quadriplegic ineligible for benefits – Virginia

The Supreme Court affirmed an earlier ruling that denied workers’ compensation benefits to a worker injured while rehabbing a historic school building, finding the man was hired by an unlicensed contractor and was not an employee of the church and historical society that were restoring the building.

The court noted that the statute holds a party liable for the payment of workers’ compensation benefits if it has hired another to perform work that is “a part of his trade, business or occupation.” While the historical society was formed to restore the school, the court reasoned that “its trade, business or occupation did not include the complete reconstruction of the building.”

Court reverses denial of benefits to employee assaulted by coworker – Virginia

In King v. DTH Contract Services Inc., the Workers Compensation Commission denied an employee’s workers’ compensation claims for injuries he sustained when he was stabbed at work by a former co-worker, finding that the motive of the attack was relevant in determining if the injury arose out of employment. The employee worked as an overnight rest area attendant and a former employee stabbed him in the eyes with a screwdriver when he was on his way back to the office after a safety check. The assailant committed suicide and the motive was never determined.

Upon appeal, the worker argued his employment placed him at a greater risk of assault than the risk faced by the general public. The court remanded the case back to the Commission, noting other cases in the state have found that when an assailant’s motive is unknown, an injured worker does not have to affirmatively establish that the assailant’s motive was not personal. Further, it was an error to treat the motive as the only relevant issue.

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Legal Corner

ADA 
More appellate court decisions support regular attendance as an essential function of most jobs

In Trautman v. Time Warner Cable Tex., LLC, (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., (2d Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., (8th Cir. Dec. 19, 2018), the Fifth Circuit, Second Circuit, and Eighth Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer. While the decisions show that unreliable attendance can render an employee unqualified for his or her job, it’s not a given and rests on the facts of the case- employers need to be vigilant in their documentation and process and consistent in the treatment of all employees.

FMLA 
Employee must turn over social media posts

In Robinson v. MGM Grand Detroit, LLC, the United States District Court for the Eastern District of Michigan found that an employer does have the right to Facebook and other social media accounts when an employee sues for discrimination and violations of the FMLA. The case alleged that an employee of MGM Grand was terminated because of his race and disability and in retaliation for taking FMLA leave. In discovery, the employee refused to provide his social media posts. A federal magistrate ruled that the employee’s Facebook, Google Photo, and Google location accounts were relevant for the case and ordered the employee to turn them over for the time he was out of work.

Workers’ Compensation 
NLRB: independent contractor test overturned

The National Labor Relations Board (NLRB) has returned to a previous standard for evaluating the status of independent contractors versus employees. In the SuperShuttle DFW Inc. case, which involved shuttle-van-driver franchisees of SuperShuttle at the Dallas-Fort Worth Airport, the board concluded that the franchisees are not statutory employees under the National Labor Relations Act, but rather independent contractors excluded from the law’s coverage.

This decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Federal appeals court sends Browning-Ferris joint employer standard back to NLRB

The federal appeals court in the District of Columbia has partially upheld the Obama-era Standard in Browning-Ferris Industries of Cal., Inc. v. NLRB. The court said that it was permissible for the Board to create a standard that considered both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment. However, the Board failed to articulate the scope of what it considers “indirect” control, so the issue was remanded. The impact on the Board’s rulemaking remains to be seen.

Employer not vicariously liable for a fatal car accident caused by an intoxicated employee – California

In an unpublished decision, Pryor v. Fitness International, an appellate court ruled that an employer was not vicariously liable for a fatal car accident caused by an intoxicated employee. When a supervisor determined that a membership counselor was impaired and sent him home early, the counselor’s car struck a bicyclist, who died from his injuries. The widow asserted the company was vicariously liable for the employee’s negligence because he was acting within the scope of his employment when he became intoxicated, and/or when he struck her husband. Further, they were negligent in hiring, retaining and supervising.

The court found that the employee was acting in a purely personal capacity when he became intoxicated and killed the bicyclist. The fact that he was sent home by the supervisor did not implicate the “special errand” rule under workers’ comp. Further, the company had no duty to try to prevent the collision, so it could not be held directly liable for negligence.

Job placement agency can’t be sued by worker who passed drug tests but was not offered job – Florida

In McCullough v. Nesco Res. LLC, the Eleventh Circuit Court of Appeals held that a job applicant who was required to take two drug tests (and passed) but was not offered a position cannot sue the placement agency. The Drug-Free Workplace Program Statute does not provide an aggrieved applicant with a private right of action. The Court said the “penalty” for the employer’s failure to abide by the statute was its loss of the discount in workers’ compensation premiums that it could enjoy with full compliance.

Lawsuit against employer for off-duty worker’s death can proceed – Minnesota

In Henson v. Uptown Drink, the Supreme Court ruled that a lawsuit filed against a bar after the death of an off-duty employee may proceed. The bartender and other employees, including an off-duty employee, forcibly removed two men who had become drunk and belligerent. The off-duty employee fell and hit his head on concrete, causing a traumatic brain injury that led to his death. His family sued, but the district court ruled the suit was barred by the exclusive remedy of workers’ comp.

The Court of Appeals reversed, holding that the evidence was insufficient to establish that the death arose out of and in the course of his employment. The case then proceeded under innkeeper negligence and violation of the Dram Shop Act and went through several appeals. The Supreme Court affirmed the appellate court decision, ruling in part that “a reasonable fact-finder could determine that (the patron’s) intoxication, violent outburst, and subsequent physical resistance, taken together, were the proximate cause of the fall that killed…”

Comp carriers must split death claim in spite of mistaken duplicative coverage – Missouri

In Employers Preferred Ins. Co. v. Hartford Accident and Indem. Co., a husband and wife each procured a workers’ compensation policy for a bakery they owned. An employee died in an automobile accident in the course of his employment and Employers paid the claim, but sought an equitable contribution from Hartford. When a Hartford agent told the husband after the accident that the Hartford policy was active, the husband filed a cancellation request, Hartford retroactively cancelled the policy, and issued the bakery a full refund of the premium and maintained it did not owe any contribution to Employers.

However, the Eighth Circuit found state law barred Hartford from cancelling a policy and eliminating its duty to defend and indemnify, after an insured had become liable for a workers’ compensation claim.

Nebraska resident hired in state but injured in Alaska cannot collect in state – Nebraska

A Washington seafood company recruited, drug tested, and hired prospective employees in Nebraska, but did no actual work in the state, therefore it was not an “employer” for purposes of the Workers’ Compensation Act. In Hassan v. Trident Seafoods & Liberty Mut., an appellate court held that a resident who was hired in Nebraska and later sustained work-related injuries in Alaska, receiving some workers’ compensation benefits from that state, could not maintain a workers’ compensation claim in Nebraska

Worker must sue third party in state that paid benefits – Nebraska

Drivers Management LLC, a Nebraska trucking company, contracted with Eagle KMC LLC, an Arizona company, to train employers. A truck-driver-in-training was injured and collected workers’ comp from Drivers Management. Almost two years later, she filed a personal injury suit against Eagle and other parties. Because Drivers Management had a subrogation claim against any third-party recovery, it was named as a defendant. The suit was filed in Arizona and upon appeal, the court held that Arizona laws do not apply because workers’ compensation benefits were adjudicated and paid in Nebraska, which “governs subrogation, lien, and assignment rights in this action.”

Causal link must be more than a “possibility” – New York

In Bufearon v City of Rochester Bur. of Empl. Relations, a worker was injured in a work-related auto accident and received medical treatment for his left shoulder, left hip, low back,and cervical spine. The self-insured employer accepted liability for all treatment except for the cervical spine.

While a workers’ compensation law judge found that the cervical spine injury was compensable, the Workers’ Compensation Board reversed and the appellate court agreed, noting the Board had the power to determine the causal relationship based on substantial evidence. The court found the medical testimony conflicting, and neither treating physician reviewed the employee’s medical records from his prior cervical spine surgery. Therefore, the Board’s finding the physicians’ opinions regarding causation were mere expressions of possibility and speculation was proper and the injured worker failed to prove that his cervical spine issues were causally related to his accident.

No “grave injury” nixes 3rd party claim for indemnification – New York

In Alulema v. ZEV Electrical Corp., a worker allegedly suffered a brain injury while at work, resulting in disabling cognitive and emotional symptoms and filed a tort claim against a subcontractor. The subcontractor filed a third-party complaint against the employer, seeking indemnity or contribution.

Under state law, if an employee suffers a “grave” injury, the employer may be liable to third parties for indemnification or contribution. To be classified as a grave injury, it must leave the worker unemployable “in any capacity.”

An appellate court overturned the trial court and found no grave injury. Testing did not substantiate his claims of cognitive and emotional symptoms and he was actively looking for employment and had obtained his GED.

Court dismisses worker’s claim against Trump campaign for distress – North Carolina

In Vincent Bordini v. Donald J. Trump for President Inc. and Earl Phillip, an appellate court ruled it had jurisdiction rather than a workers’ compensation court over a suit alleging a Trump 2016 presidential campaign data director pointed his gun at a co-worker causing emotional distress and other damage. The director, who possessed a concealed carry permit, allegedly took out his gun and held it against the worker’s knee with his finger on the trigger while in the car.

While the campaign contended the case should be heard as a workers’ comp claim, the court noted, “The risk of being intentionally assaulted at gunpoint by a coworker is not one which a reasonable person may have contemplated when accepting an information technology job on a presidential campaign.” Therefore, it was not preempted by workers comp law.

Nevertheless, the court found that the campaign could not be held vicariously liable because the director was an independent contractor, not an employee. He was hired through a political consulting firm, had no set work hours, and was not under a regular employment contract.

Disability commences on the work day following the injury – Pennsylvania

While neither the statute nor case law addresses when a disability commences if an injured employee is paid full wages the day of their injury, the Commonwealth Court ruled the disability commences on the work day following the injury. It noted the bureau’s interpretation states that payment is to be made “on the date the claimant is unable to continue work by reason of injury unless he is paid full wages for the day.”

In Stairs v. Workers Compensation Appeal Board, a worker was injured and taken to the hospital by ambulance and did not return to work, but received full pay for the day of the injury. The employer sent a notice of temporary compensation payable, acknowledging the worker had suffered a back injury on Friday, March 27, 2015, and stated that the 90-day period to contest his claim would run from March 30 through June 27, 2015.

Under state statute, if the employer does not file to contest within 90 days its notice of temporary compensation payable will be converted into a notice of accepting liability for the claim. On the 90th day of the disability the company filed to contest the claim, although the Bureau issued a notice of conversion the following day. The worker appealed but the commonwealth court ruled that the employer’s notice was timely filed and the notice of conversion issued by the bureau was void.

Although symptoms abated, bricklayer entitled to ongoing benefits but not penalties from employer – Pennsylvania

In Kurpiewski v. WCAB (Caretti) and Caretti v. WCAB (Kurpiewski), the Commonwealth Court found a bricklayer was entitled to ongoing benefits, although he no longer had symptoms nor did he need treatment for a skin condition arising from his long-term exposure to chromium. His chromium sensitivity prevented him from working as a bricklayer. The worker also sought penalties, based on the employer’s failure to timely accept or deny liability for his claim.

The court found the employer had violated the law by failing to acknowledge or deny the claim within 21 days. Although it filed an answer contesting his claim, it did not issue a separate notice of denial. However, the court noted not every violation requires a penalty and remanded the imposition of a penalty to the judge.

Worker awarded benefits in spite of “close question” on causation – Tennessee

In Butler v. Tennessee Municipal League Risk Management Pool, a laborer worked on installing a water line at the county landfill. Two days later he was diagnosed with invasive pulmonary aspergillosis and has not returned to work.

While he argued it was a result of working in the trench, the pool said he had developed it on his farm. Since aspergillus spores are everywhere, causation is difficult to prove. However, through the testimony of his coworkers, it was established that several workers developed respiratory ailments after installing the water line at the landfill. In addition, four doctors opined that the invasive aspergillosis was caused by a massive exposure to the aspergillus fungus while digging the trench.

In overturning the denial of benefits, the Supreme Court’s Special Workers’ Compensation Appeals Panel noted it was “strangely coincidental” all of the men fell ill with similar symptoms while working at the landfill and given the beneficent purpose of the workers’ compensation system, it found in favor of the worker.

Falling asleep at the wheel nixes benefits – Virginia

In Norris v. ETEC Mechanical Corp., a master electrician fell asleep while driving home from a job site and suffered serious injuries.The court found that the accident occurred in the course of employment, but did not arise out of his employment. The state uses the “actual risk” test to determine whether an injury arose out of employment. While he said he fell asleep because he was tired, he did not relate the drowsiness to his work.

To keep benefits, employee must be bound by release – Virginia

In Giles v. Prince George Cty. Pub. Sch, a worker suffered multiple injuries and filed several claims. Later, with the help of an attorney, she entered into a settlement agreement that included some exceptions to her treatment and prohibited further claims arising from the accident. Shortly after the settlement, she demanded benefits for her right shoulder, which was an exception in the agreement. The commission treated this as a request to review the settlement, but the worker argued she did not want a review, but wanted additional benefits. The Court of Appeals upheld the commission’s denial of benefits, noting she could not keep the benefits of her agreement and at the same time not be bound by her release.

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Legal Corner

ADA
Bank pays $700,000 for inflexible disability policy

A bank has agreed to pay $700,000 to settle an EEOC lawsuit for violating the ADA. Hudson City Savings Bank, which merged into Wilmington Trust Co., a subsidiary of Buffalo, New York-based M&T Bank Corp. in 2015, had a long-standing inflexible policy of placing employees with impairment or disabilities on involuntary leave or discharging them until it received a medical provider’s clearance to return to work with no restrictions.

Disability discrimination case of health worker who refused vaccine dismissed

In Janice Hustvet v. Allina Health System, a unit of Minneapolis-based Allina Health System merged with Courage Center in Minneapolis. Allina required Courage Center employees who had patient contact to get a vaccine for measles, mumps and rubella as part of a preplacement health assessment screen. An independent living skills specialist refused noting she had many allergies and chemical sensitivities.

When she was fired, she filed a disability discrimination suit under the ADA. The court found that the requirement to undergo a health screen was job-related and consistent with a business necessity. Further, there was insufficient evidence that her chemical sensitivities or allergies substantially or materially limit her ability to perform major life activities.

Workers’ Compensation
Apportionment for pre-existing, asymptomatic conditions allowed – California

In City of Petaluma v. WCAB (Lindh), a police officer suffered head injuries during a training exercise, experienced headaches and lost vision in his left eye. A medical assessment determined that he had a pre-existing vascular condition that predisposed him to a loss of eyesight. While an administrative law judge and the WCAB granted a 40% permanent disability without apportionment, the 1st District Court of Appeal noted statutes provide that permanent disability must be apportioned based on causation, as long as there is substantial medical evidence that the disability was caused, in part, by nonindustrial factors. The condition does not have to manifest itself; an asymptomatic condition, means a condition that is present but for which there aren’t any symptoms.

The court therefore ordered the case sent back to the board to issue an award apportioning 85% of Lindh’s disability to his pre-existing condition, and 15% to his industrial injury.

Workers’ fraud means carrier can seek modification of benefits – Florida

Florida’s statute allows a judge of compensation claims to change benefits if there is a change in condition or if there was a mistake in a determination of fact. In U.S. Fire Insurance Co. v. Hackett, the carrier had been paying for around-the-clock attendant care provided by the husband and daughter of the injured worker. Over 25 years after the accident, the injured worker stopped seeing her treating doctor.

The carrier then conducted surveillance and found she was not receiving all the attendant care for which they were paying and questioned the need for continued care. While a judge agreed that the husband and daughter were deceiving the carrier, she denied the carrier’s petition for modification, reasoning that the evidence established fraud, not a change in medical condition. She also stated she did not have the authority to compel an IME. The Court of Appeal for the 1st District disagreed and reversed the decision.

Injured worker cannot sue third party – Illinois

In A&R Janitorial v. Pepper Construction Co.; Teresa Mroczko, an employee of a janitorial service was cleaning an office building. At the same time, a subcontractor was replacing carpets and a desk that had been placed in an upright position fell and injured the custodian. She collected workers’ comp benefits from her employer, but did not file a timely personal injury action against the construction company.

Under Illinois law, if a worker does not file a personal injury action, her employer can. While the litigation was pending, the worker filed her own action, but was denied as untimely. Later, she filed a petition to intervene in her employer’s case. While a judge denied the petition, the Appellate Court reversed and the case went to the Supreme Court.

The Supreme Court reversed on res judicata grounds – the matter had already been adjudicated by a competent court and may not be pursued further by the same parties.

Temporary staffing employee cannot sue assembly plant – Indiana

An employee of a temporary staffing agency was assigned to work in an assembly plant. When her hand was crushed by a punch press and a finger was severed, she collected workers’ comp from her employer, the temporary staffing agency. Later she filed suit against the assembly plant, claiming negligence.

The assembly plant argued that it was immune from civil liability since the worker was an employee and the courts agreed. The Indiana statute provides “a lessor and a lessee of employees shall each be considered joint employers of the employees provided by the lessor to the lessee.”

Attorney’s text message to IME does not bar medical report and testimony – New York

In Robert G. Knapp v. Bette & Cring LLC, Workers’ Compensation Board, a divided appellate court ruled that the Workers’ Compensation Board erred in barring the introduction of the IME’s report and testimony at a later hearing because the attorney sent a text message to the physician and not the opposing counsel.

The message requested an update on the loss of use of the worker’s left foot, which had been determined at 40.5% for comp benefits. Following the exam, the IME found an 88% scheduled loss and the Board reopened the case. The Board credited the employer’s physician’s report and awarded a 50% loss, precluding the IME’s report.

In overturning the decision, the appellate court noted the message ‘appears to be a limited communication’ and did not reflect an effort to influence the physician’s testimony or opinion.

Injured employee can continue medication beyond its recommended short-term use – New York

In Matter of Byrnes v. New Island Hospital, an appellate court ruled that an injured nurse could continue use of Amrix, a muscle relaxant, which is recommended for only short-term use on the board’s Non-Acute Pain Management Guidelines, but which she had been using for over 16 years. The injured worker’s doctors argued that the medication, in combination with other therapies, allowed her to perform the activities of daily living and to continue working as a nurse and the effects of the drug vary by individual.

The court supported the board’s finding that the medication was medically necessary.

Additional compensation awards subject to durational limits – New York

In Mancini v. Office of Children and Family Services, the state’s highest court ruled the additional compensation awards permissible under Section 15 (3) (v) of the Workers’ Compensation Law are subject to the durational limits set out under Section 15(3)(w) – those for workers with non-schedule injuries. The ruling is a continuation of the state’s trend toward caps on benefits that started with the 2007 reforms.

Supreme Court overturns compensability award based on preexisting condition – North Carolina

In Pine v. Walmart Associates, a long-time employee fell and was released to return to work, but continued to experience pain. A few months later, imaging revealed nerve damage and she filed a workers’ compensation claim. Walmart accepted liability for the right shoulder and arm injuries, but denied liability for the condition of her cervical spine as well as other injuries, since she had a pre-existing degenerative disc disease.

The Industrial Commission found her injuries and subsequent pain were the result of the earlier fall and were compensable based on the Parson’s presumption that injured workers should not be required to prove their need for treatment was related to the original injury every time they seek further medical care. While noting the commission applied the incorrect standard in determining compensability, the Court of Appeals affirmed.

While this was under appeal, legislation was enacted that amended the statute, Section 97-82(b), to clarify that the Parsons presumption applies only to the specific injury that was accepted on a Form 60. Since the statute was applicable to all cases not yet resolved, the worker was not entitled to a presumption that her other conditions were compensable. Further, it was unclear if the commission made findings of causation independent of the application of the presumption; therefore, the decision had to be set aside.

Petition for civil contempt cannot compel interest payments on benefits delayed while employer appealed award – Missouri

In Smith v. Capital Region Medical Center, a widow was awarded benefits for the death of her husband. When the employer appealed the award, there was a delay of about 1.5 years before the Court of Appeals affirmed it. The widow filed a petition for civil contempt to compel the employer to pay the interest owed, but the court noted Section 511.340 prohibits the use of civil contempt to enforce the mere payment of money.

First employer liable for reoccurrence of injury of worker hired through labor union – Nebraska

In Weyerman v. Freeman Expositions, a stagehand was a member of a local union. The union had a collective agreement with Complete Payroll, which was considered the employer of members of Local 42 when they worked on its jobs, but the union also had agreements with other companies, including Freeman Expositions, which specified it was the “employer” when union members were working on its jobs.

The stagehand was injured while working for Freeman and the treating doctor cleared him to return to work in about a week. Complete Payroll sent the worker to another job, but he was unable to perform because of back pain. Then he was cleared to return to work, but did not go back and began seeing another doctor and filed for workers’ compensation.

The workers’ compensation court found he suffered an injury to his back while working for Freeman Expositions and that he suffered a recurrence of the injury several weeks later and he had not reached MMI. While the Court of Appeals acknowledged conflicting evidence, it affirmed the decision that Freeman was liable for both injuries.

Question of disability limits benefits for daughter with incurable eye disease – Pennsylvania

In Aqua America v. WCAB (Jeffers), a worker was killed in an auto accident, leaving behind a wife and four children. Under the law, payment of benefits to minor children continue until they reach the age of 18 and beyond, if they have a disability.

His daughter suffers from an incurable, progressive eye disease, which will eventually leave her legally blind. The widow sought dependency benefits that would continue after her daughter turned 18.

While a workers’ compensation judge and the Workers’ Compensation Board approved the daughter’s benefits beyond the age of 18, until the employer could prove she was capable of self-support, the Commonwealth Court overturned. It noted disability involves “not merely physical impairment, but loss of earning power” and there was no evidence regarding loss of earning power.

Patient’s ulcer not attributable to pain medications – Tennessee

In Steak N Shake v. Yeager, a restaurant worker suffered serious injuries in a fall and was given prescriptions for several pain medications. A week after his fall, he returned to the hospital complaining of weakness, dizziness and chest pain and a doctor posited that the ulcer was likely caused by the combination of meds. The Department of Labor ordered the restaurant to pay for his care.

His hospital bill was over $48,000 and the restaurant contested it by filing a civil suit against the worker. In so doing, they obtained admissions that the worker had taken more meds than prescribed and he consumed an average of three ounces of liquor daily. While a trial judge upheld the award, the Special Workers’ Compensation Appeals Panel reversed and the Supreme Court upheld the Panel’s decision not to award benefits.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Seven emerging risks and trends to watch

Often employers don’t give emerging trends the same importance as existing practices. Here are seven emerging trends to put on your radar screen:

  1. Temporary workersWhether it’s to meet peaks in demand, a screening process for temp-to-permanent employee, or to tap a unique skill or talent, temporary workers are a vital part of today’s workforce. They also present unique risks for employers. Temp workers are less likely to return to work following an injury and are almost three times as likely to suffer non-fatal occupational injuries than direct hire employees according to a study by University of Illinois at Chicago’s School of Public Health.

    Further, classification of workers as employees or independent contractors remains a thorny legal issue. Insurers are also scrutinizing classification of workers particularly in franchises, the gig economy, and trucking industry. Despite the administration change, OSHA remains committed to overseeing and enforcing temporary workers rights.

    Keeping temporary workers safe and understanding agency/employer responsibilities is a constant challenge. While there is a tendency to be laxer with temporary workers, they need to be vetted and trained as if they would be there permanently. Expectations need to be clearly communicated. Some employers have found “buddy systems” and visual identification effective.

  2. Medical and recreational marijuanaConflicting laws, inconsistent legal rulings, zero tolerance drug policies, differing opinions about the use of marijuana as a viable alternative to relieve chronic pain, and reimbursement issues make marijuana a hot-button headache for employers. Court decisions about reimbursement for medical marijuana have been all over the place. A handful of states have found, and continue to find, that it is reimbursable (CT, MN, NJ, NM, and NY).

    While many courts have ruled that employers with drug-free workplace policies can terminate an employee who tests positive for marijuana, Massachusetts companies cannot fire employees who have a prescription for medical marijuana simply because they use the drug, but must attempt to negotiate a mutually acceptable arrangement with each medical marijuana patient they employ.

    With a tight labor market, companies lament that too many applicants test positive for marijuana during pre-employment screening, causing some to relax the practice. Others grappling with marijuana look at job functions and do not hire someone in a safety-sensitive position if they have a medical marijuana card or prohibit certified users from performing certain safety-sensitive jobs while “under the influence” of medical marijuana. Post-accident drug testing is also challenging for employers as is modified duty for injured workers treating with medical marijuana.

    A new year is a good time to review your written drug policies, clearly communication expectations and company rules to all employees, and be sure supervisors know how to recognize signs of impairment. Employers are responsible for providing their employees a safe working environment and this is one of the more vexing areas. Don’t go it alone; consult with legal counsel and insurance carriers that can help navigate the complexity.

  3. Mental health and PTSDThe debate about mental health coverage under workers’ comp is not new, but continues to gain traction with rising incidents of workplace violence, PTSD, efforts to reduce the stigma associated with mental health, and general concern of stress in the workplace. Workers’ Comp compensability for mental-mental and mental-physical injuries, either by statute, regulation, and/or case law vary widely by state and many states are reexamining their statutes, particularly for first responders.

    Moreover, the effect of depression, anxiety, and other mental health issues on delayed return to work, increased claims costs, and workplace violence are being addressed in return to work efforts and employee assistance programs. Increasingly, mental health is also being incorporated into health and wellness programs.

  4. Ergonomics and wearablesA recent survey by Marsh Risk Consulting (MRC) found that companies are not doing enough to tackle emerging risks, including ergonomics and wearables. Ergonomics typically is one of the top three causes of workplace injuries, but advances in technology offer opportunities to manage and mitigate the risks. Wearables can measure body stresses and provide data, alerts and real-time monitoring to modify behavior and enable managers or other senior workers to make corrections before an injury occurs. They can also provide data for potential engineering and productivity improvements.

    While wearables are here to stay, they need to be integrated strategically. Some things to consider are how they complement existing safety efforts and culture, the cost-benefits, and the risks. Data privacy risks, ethical considerations, and liability exposures for employers all need to be considered when implementing programs using wearables. As with the introduction of any new technologies, employee acceptance is key.

  5. Robotic and human interactionAnother emerging risk needing more attention identified in the MRC survey is the rapid growth in collaborative and mobile autonomous robots that is increasing the threat of injury from human and robot interaction. Whereas robots used to work in isolation, technology has evolved so that many now work alongside humans. A common myth is that the collaborative robot is safe out of the box, yet the manufacturer does not control how it is programmed or used. Every collaborative robot system is unique and the risks must be assessed.

    In addition, employees may resist the introduction of such systems, particularly when they fear losing their job. Smart employers prepare employees for the future of work by systematically and intentionally reskilling and upskilling them.

  6. Alternatives for pain management and the opioid prescription drug crisis2018 was an active year for state legislation regarding prescription drugs in workers’ compensation and more is expected in 2019 to stem the opioid crisis. The industry has seen positive results and continues to seek new ways to address the problem.

    A Hartford survey on opioids in the workplace had troubling results. Over three-quarter of workers don’t feel trained to help colleagues navigate addiction, 64% of human resource professionals say they are unprepared to handle opioid addiction, and only 34% of workers feel the company has the resources to deal with the problem.

    Employers need to step up by educating employees about the risks of the misuse of opioids, identifying those at risk of misuse and getting appropriate help, assessing current workplace drug policies and scope of drug testing, and strengthening employee assistance programs. In addition, working to expand coverage of alternatives for pain management that offer a more holistic approach, such as cognitive behavioral therapy (CBT), mindfulness, physical and occupational therapy, relaxation training, and exercise will help employees gain confidence in their ability to manage their pain.

    Some employers use telemedicine to keep employees engaged with virtual face-to-face meetings between patients and psychologists. Medical marijuana may hold promise for the future, but science is too limited and it remains classified as a Schedule I drug under federal law. It behooves employers to stay abreast of new developments.

  7. Natural disastersThe country has seen its share of devastation this year and the recent dire report on climate change from the US Global Change Research Program suggests it will continue on an increasing scale. For those affected, the implications for workers’ comp are huge – expediting benefit payments and medical care to injured workers directly affected, workplace injuries during disaster recovery, and disruption of business operations. The National Council on Compensation Insurance (NCCI) states that when a natural disaster creates a temporary interruption of normal business activities, this can validate a change in an insured’s operations, and can prompt carriers to consider a change in governing classifications if the employer continues to pay its employees while they are unable to work.

    Businesses should always expect the unexpected. Staying ahead of risks during disasters requires an assessment of the unique risks that can potentially arise in your location and developing a comprehensive plan that addresses employees, infrastructure, and business continuity.

Employers that move beyond the familiar traditional issues and anticipate and address emerging risks become industry leaders.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

 

Legal Corner

ADA
PA company faces charges of hiring bias against applicants in drug treatment

The Equal Employment Opportunity Commission (EEOC) filed suit against Clearfield-based Appalachian Wood Products Inc., a major supplier of cabinet components to the kitchen and bath industry. The suit alleges that the company unlawfully barred job applicants from certain positions if they were taking prescribed medications for drug addiction treatment without evaluating whether the medications affected their ability to perform the job safely. Also, unlawfully, the company required applicants to disclose their use of medications prior to making conditional offers.

FMLA
Retaliation claim by fired auditor can go to trial

In Batson v. The Salvation Army, the 11th U.S. Circuit Court of Appeals ruled an employee who was fired after returning from medical leave and unsuccessfully applying for a position she previously held can go to trial on her retaliation claim under the FMLA. The employee, who had multiple sclerosis, was promoted to an audit manager position when the audit secretary became ill. When the audit secretary died, the new position was eliminated and around the same time the employee took FMLA leave.

When she returned to work, she was told her position was eliminated but she could apply for her old position as a senior auditor, which she did and was the only one to meet the application deadline. At the same time, a new audit secretary was hired. When she was interviewed, she was asked many questions about her health. In making the decision not to hire her, the new audit secretary noted she performed poorly in the interview, and she had “recent performance issues” as an audit manager.

The court, however, found that the health-related questions during the interview suggested the audit secretary was concerned about the need for FMLA leave, not her interview performance and had no experience supervising the applicant. Emails also suggested the audit secretary decided not to hire her because of her illness but recognized the need to come up with an alternative justification.

Employer takeaway: Under the FMLA, if a position was eliminated for legitimate reasons, reinstatement rights no longer exist. However, several mistakes were made in this process. The employee was told she could apply “as a formality” for a recently posted senior auditor position (her former position) and would be transferred and she was the only applicant to apply before the deadline. The focus on health-related questions during the interview was inappropriate and the emails during the selection process were incriminating.

Workers’ Compensation
Exclusive remedy defense can be added to case after several appeals – Illinois

In Hiatt v. Ill. Tool Works, an employee of Western Plastics was seriously injured when both his arms got caught in a metal roller and had to be amputated. He filed suit against multiple parties, including Illinois Tool Works (ITW), which sold products to Western and was housed in the same building. All suits were settled or dismissed except for the ITW case, which went on for five years and involved seven amended complaints and over 40 dispositions.

The employee claimed that ITW was engaged in a joint venture with Western and had knowledge that the machine involved in the incident was dangerous. ITW moved for summary judgment, which was granted by a trial judge, but reversed by the Appellate Court. The trial judge, on her own initiative, raised the exclusive remedy defense.

The case went through more appeals and ITW raised the exclusive remedy defense for the first time, while the employee argued the law-of-the-case doctrine, which limits re-litigation of a previously decided issue in the same case. The Appellate Court noted that its prior decision had not explicitly said ITW could not raise an exclusive remedy defense on remand and that ITW, as a member of the joint venture, is an agent entitled to the same immunity afforded to the employer by the exclusive-remedy provision.

PTD granted to worker unable to find work – Mississippi

In Harris v. Stone County Board of Supervisors, the Court of Appeals reinstated permanent total disability benefits to a maintenance worker who could not find a job after reaching maximum medical improvement for a knee injury. A functional capacity examiner found that he was able to work full-time, mostly sitting; however, he had done manual labor all his working life. A vocational rehabilitation counselor noted very limited job skills and found 12 low paying jobs, which the worker applied for without success.

After several appeals, a Court of Appeals noted a worker is presumed to be permanently and totally disabled (PTD) if he reports to work after reaching MMI but is not reinstated. The employer failed to meet its burden to prove otherwise.

Physician assistant does not meet definition of physician in workers’ comp – Nebraska

In Bower v. Eaton Corp., an employee who injured his shoulder underwent four surgeries and the company accepted responsibility for three of the surgeries. The employee appealed an award of the Nebraska Workers’ Compensation Court that concerned a number of issues, including his impairment rating.The Supreme Court held that the Workers’ Compensation Court appropriately failed to consider the medical report as evidence of the worker’s impairment. The medical report which indicated the injured worker suffered a 15 percent permanent impairment to the right upper extremity was signed by an orthopedic surgeon’s physician assistant and not by the surgeon.

Injury incurred while scanning parking pass at kiosk not compensable – New York

In a divided decision, Matter of the Claim of Shelly A. Grover v. State Insurance Fund, Workers’ Compensation Board, the Appellate Division of the Supreme Court ruled that an employee’s injuries sustained while stopping to scan her employee parking pass were not compensable. The privately-owned parking garage that she was accessing is located underneath the building where she worked. The garage is open to the public, but there is a section of the garage exclusively dedicated to employees located in the building.

Although a law judge found the injuries compensable, the Workers’ Compensation Board ruled that the incident did not arise out of and in the course of her employment and the Appellate Court agreed. The Board found that the parking garage was utilized by members of the public, as well as other businesses located within the same building as the employer. The Board further noted that the employer did not own or maintain the garage.

Special employer liable for half of comp benefits – New York

A truck driver worked for Eaton’s Trucking Service, which exclusively hauled cargo for Quality Carriers. Eaton operated under Quality’s logo and license without which Eaton could not have conducted its hauling operation. When the driver filed a claim for injuries to his right hand, wrist, arm and shoulder, he identified both Eaton and Quality as his employer. Following a hearing, a WCLJ determined that the driver had an occupational disease of right carpal tunnel syndrome and found that Eaton was his general employer and Quality was his special employer, and that each was liable for 50% of the workers’ compensation awards. The Board upheld that determination.

Upon appeal to the Supreme Court’s appellate division, the court noted that while Quality did not control the day-to-day oversight of the driver, Eaton and the driver operated entirely under Quality’s authority and pursuant to its policies. The Court also stressed that when there is a general and special employer, the Board is empowered to make an award against either or both of the employers.

Ordinary supervision does not warrant claim of mental injury – New York

In Matter of Lanese v. Anthem Health Servs.,a registered nurse case manager alleged that she suffered a relapse of preexisting depression and anxiety and had to stop working as a result of harassment and bullying by her managers. The court found, however, that she was receiving normal oversight and monitoring to assist her in correcting deficiencies and improving her performance that were no greater than what other workers experienced in the normal work environment.

Work Comp case file can’t be sealed from public access – North Carolina

In Mastanduno v. National Freight Industries, an employee asked the Industrial Commission to keep the information related to his workers’ compensation claim out of the public record, which includes a searchable online data base. He was concerned the information would affect his ability to obtain a visa, his insurance premiums, his qualifications to adopt a child, and his eligibility to secure a line of credit, as well as expose him to identity theft and cyberbullying.

The Court of Appeals affirmed the denial of the request, noting the general statute specifies that all commission records, aside from awards issued by the Commission, are not public and the exclusion of awards meant that the General Assembly intended for awards of the Industrial Commission to be public.

Employee’s fall on premises after clocking out is compensable – Pennsylvania

In Wegmans Food Markets v. WCAB (Tress), a cashier had finished her shift and was walking across the store to pick up a hamburger, which she had ordered from the store’s pub. She slipped and fell and was injured.

The Commonwealth Court noted that in order to be compensable the fall must have occurred on the employer’s premises, be caused by a condition of the premises, and be required by the nature of the job to be on the premises. In this case, the first two were clearly met and the court noted that getting to and from the work station is a necessary part of employment. In Pennsylvania, injuries that occur on the employer’s premises while the worker is coming to or leaving work are in the course of employment if they occur within a reasonable period of time before or after the worker’s shift.

Supreme Court reduces burden of proof in firefighter cancer cases – Pennsylvania

While the state had created a presumption of an occupational disease for firefighters with cancer, the Commonwealth Court read the language as requiring firefighters to prove they had industrial exposure to known carcinogens that caused the form of cancer. In a recent decision, City of Philadelphia Fire Department vs Workers’ Compensation Appeal Board (Sladek), the Supreme Court lowered the burden of proof, noting that a cancer-stricken firefighter has the burden of proving the “occupational disease” but did not have to prove that an identified Group 1 carcinogen actually caused the cancer. This involves showing they spent four or more years working as a firefighter after passing a physical examination that they were cancer-free, as well as direct exposure to a Group 1 carcinogen.

Gradually incurred injury not an injury by accident and not compensable – Virginia

In Daggett v. Old Dominion Univ., an appellate court upheld the denial of benefits, noting that an injured employee must demonstrate an “identifiable incident” or “sudden precipitating event” to receive workers’ comp benefits. In this case, a shoulder injury was a result of repetitive trauma. On the day of the alleged injury, the employee repeated the same combination of movements to rotate and move 14 smart boards, each weighing between 28 and 48 pounds.

Employer must protect workers’ family from asbestos exposure – Virginia

In Quisenberry v. Huntington Ingalls, a divided (4-3) Supreme Court ruled that an employer has a duty to protect its employees’ family members from potential exposure to asbestos fibers that employees may carry home on their work clothes. The daughter of a former employee, who regularly laundered her father’s clothing, died from mesothelioma and her son filed a wrongful death suit.

In reaching its decision, the court noted there does not need to be actual interaction between the parties, so the fact that the alleged harm occurred at a location removed from the employer’s business and after hours was irrelevant. Because the shipyard owed the duty to the family members, it was susceptible to tort liability.

Bus driver’s failure to wear seat belt nixes benefits – Virginia

In Mailloux v. American Transp., a bus driver, who sustained serious injuries in an accident in which his bus was struck from behind, causing it to careen against a guard rail and flip over, ejecting the driver, was found to have violated his employer’s safety policy and disqualified from receiving benefits. The appellate court showed that he did not sustain the injuries while in the driver’s seat, but only after being ejected from the vehicle, and that the driver was aware of the employer’s safety policy requiring seatbelt use at all times. Thus, the proximate cause of the driver’s injuries was his failure to use the seatbelt and he was not entitled to benefits.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

HR Tip: New FMLA forms available from DOL

The Family and Medical Leave (FMLA) certification forms and notices are now valid until Aug. 31, 2021. DOL didn’t make any substantive changes to the forms, other than the new expiration date. Here they are:

Notices

Certification forms

The DOL must submit its FMLA forms to the Office of Management and Budget (OMB) for approval every three years. OMB review is required to ensure the FMLA certification and notice process isn’t too bureaucratic.

While the forms aren’t mandatory, many employers use them. Some employers copy and paste the DOL form into their own form, replacing the DOL logo with their own.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Failure to accommodate is costly for employers

In Equal Employment Opportunity Commission, Linda K. Atkins v. Dolgencorp L.L.C., dba Dollar General Corp., a federal appeals court affirmed a jury verdict of more than $277,000 to a former diabetic Dollar General worker. She worked the register and was often alone, so she could not leave her station when she experienced a low blood sugar episode. Her manager refused to let her keep a bottle of orange juice at her register, so when she had an attack she took a bottle of juice from the store cooler and drank it, later paying the $1.69 she owed for each bottle and told her manager.

She was fired for violating Dollar General’s “grazing policy,” which forbids employees from consuming merchandise in the store before paying for it. The appeals court affirmed the jury awards of $27,565 in back pay and $250,000 in compensatory damages, and the court awarded her lawyers $445,322 in attorney’s fees and $1,677 in expenses. The jury found Dollar General failed to provide reasonable alternatives to keeping orange juice at her register.

In Stanley Christie v. Georgia-Pacific Co., Ace American Insurance Co., director, Office of Workers’ Compensation Program, the 9th U.S. Circuit Court of Appeals in San Francisco awarded permanent total disability to a man who injured his back working for a large paper company that failed to prove that they provided the employee with adequate accommodations after returning to work. While the company assigned him to a less-demanding warehouse position, the position required some lifting, which was difficult for him.

When he learned that the company was eliminating its early retirement program, he decided to retire because he did not feel he could work in pain for another six years. About two years later, his treating physician said he had reached maximum medical improvement, and he filed a claim seeking permanent total disability benefits under the Longshore and Harbor Workers’ Compensation Act, for which he was eligible.

The DOL’s Benefits Review Board, denied the claim, arguing his loss of wages was due to retirement, not the work injury. A three-judge panel of the 9th Circuit unanimously reversed, noting that his inability to work pushed him to retirement and the company had failed to provide suitable alternative work and had not documented any accommodations.

Workers’ Compensation
Injured worker cannot sue utilization reviewer – California

In King v. Comppartners, Inc., an utilization reviewer denied a treating physician’s request to continue prescribing Klonopin, a psychotropic drug, for an injured employee. The injured worker argued that the reviewer owed him a duty of care and had caused additional injuries by denying the request without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication. When he stopped taking the medication, he suffered four seizures.

The case found its way to the state Supreme Court, which found that utilization reviewers, in performing their statutory functions, effectively stood in the shoes of employers. As such, they were provided with the same immunity from tort liability as employers.

Safety consultant owes duty of care – California

In Oscar Peredia et al. v. HR Mobile Services Inc., parents filed a wrongful death claim against HR Mobile Services Inc., a workplace safety adviser for the employer of their son, who died in a work-related accident. The 5th District Court of Appeal found that HR Mobile agreed to assist the employer in carrying out its workplace safety obligations, and accepted a role in conducting safety inspections and safety training. As such, it can be held liable for injuries the third party suffers as a result.

Public employer can fire an injured worker who cannot perform essential job functions – Massachusetts

In Robert McEachen v. Boston Housing Authority (BHA), a carpenter for the Boston Housing Authority was injured and placed on FMLA and medical leave. About a year later, a termination hearing was held with the union and the employee and it was concluded that “he is unable to return to work and cannot perform the essential functions of his job.” The employee did not disagree and argued he could return to work in a modified duty capacity, supervising other carpenters. Such a position did not exist.

When he was terminated, he appealed to the Civil Service Commission, which upheld the BHA decision, noting the employee was unable to perform the essential functions of the job. A three-judge panel of the state appellate court affirmed.

Decision not to use handrail nixes comp claim – Minnesota

The Supreme Court ruled that an employee who fell down a flight of steps while at work is not due workers compensation because she chose not to use a handrail. In Laurie A. Roller-Dick v. CentraCare Health System and SFM Mutual Cos., the employee was leaving work, carrying a plant with both hands,when she fell down a flight of stairs and fractured her ankle. While she argued that her shoe stuck on the non-slip treads on the stairs, the compensation judge held that the injury did not arise out of employment because she failed to establish that the stairs were “more hazardous than stairs she might encounter in everyday life or that her work duties in some way increased her risk of falling as she descended them.”

While it was true that failure to use the handrail increased her risk of falling, there was no work-related reason not to use the handrail. The Workers’ Compensation Court of Appeals overturned the judge’s ruling, arguing that stairs in the workplace are inherently hazardous. However, the Supreme Court disagreed and reinstated the ruling of the compensation judge.

Teacher cannot sue school for injuries incurred when breaking up a fight – Minnesota

In Ekblad v. Independent Sch. Dist. No. 625, the 8th U.S. District Court of Appeals ruled that workers’ comp exclusive remedy bars a teacher from suing the school after he was seriously hurt breaking up a student brawl. The employee argued negligence and negligent supervision as well as failure to provide a safe workplace and a lenient policy toward minority students’ violent misconduct.

The court found that none of the three relevant exceptions to the exclusive remedy provision – the assault exception, the intentional act exception, and the co-employee liability exception – applied in this case.

Employer rebuts 100% industrial loss because employee has marketable skills – Mississippi

In Bridgeman v. SBC Internet Services, a worker suffered a compensable injury, was unable to return to his job that involved climbing utility poles, and he was terminated by his employer. Under law, there is a presumption of 100% industrial loss when the worker proves he can no longer perform his usual employment. This presumption is rebuttable, if the employer can prove the employee could earn the same wages in another position.

If the employer successfully rebuts the presumption, the employee will not recover for a 100% industrial loss of use, but receives a recovery based on the greater of his losses from the medical impairment or the industrial loss-of-use rating. Since the employer presented evidence that the employee had a computer science degree, had been a teacher, and could perform medium to heavy work, an appeals court upheld lower court decisions that granted a 50% industrial loss of use of his arm.

Subject-matter jurisdiction can be challenged at any time – North Carolina

In Burgess v. Smith, a young woman who sold cleaning products door-to-door was killed in a single car accident, driven by her co-worker. Her mother filed a wrongful death suit against the driver and her employer and neither responded to the summons. A trial judge entered a default judgment against the defendants for more than $2 million. Five months later, the employer filed a motion to set aside the default judgment, arguing that she was an employee (although he argued earlier she was an independent contractor) and that the superior court lacked jurisdiction over the claim.

The court of appeals overturned the superior court judge denial, noting that subject-matter jurisdiction may be challenged at any time, even after the default judgment. The court remanded the case with instructions for the judge to determine if there was an employer-employee relationship.

Employee cannot sue employer for failure to provide a stress-free environment – North Carolina

In Jones v. Wells Fargo Co., a former employee argued that the bank and her supervisor failed to provide her with a safe working environment free from mental stress or anxiety and aggravated a pre-existing mental condition, which they knew about. While she argued that the exclusive remedy of workers’ comp did not apply because of “egregious and extreme conduct,” the court disagreed.

Parking lot injury compensable – Pennsylvania

In Piedmont Airlines v. WCAB (Watson), an airline employee fell into a pile of snow in the employee parking lot and broke his finger. The employee parking lot, which was owned and operated by the Department of Aviation, required an identification card for entry and the employer had issued one to the employee.

The Commonwealth Court noted that when an injury does not take place while performing job duties, it is compensable if the injury occurred on the employer’s premises, the worker’s presence on the premises was required by the nature of his employment, and the injury was caused by the condition of the premises or by operation of employer’s business. The court found that all three factors were met and, therefore, the injury was compensable.

Failure to accept modified duty means benefits can be adjusted – Pennsylvania

In Pettine v. WCAB (Verizon Pennsylvania), an employee was struck by a car when marking the road and suffered compensable injuries. He later requested that the claim be expanded to include his back and shoulder. When he declined an offer of a modified job that met his physical restrictions, vocational background, and geographical area, Verizon sought to modify his benefits.

The case went through several appeals, but in each case, the employee’s petition was denied and Verizon’s was granted.

Compromise & Release (C & R) agreement may not be used to avoid paying third party fees – Pennsylvania

In Armour Pharmacy v. Bureau of Workers’ Comp, the terms of a settlement included that the company pay for all necessary medical treatment. Many years after the injury, the company requested a Utilization Review (UR) of a newly prescribed topical cream, which was determined to be reasonable and necessary treatment.

The company then entered into an agreement with the employee that stated its liability for his medical expenses did not include any past, present or future costs for any compounded prescription cream. Several months later, the employee filled another prescription for the same cream, and the company refused to pay the more than $6,000 bill.

The court explained that the C & R bind each other, but cannot release them from liability to an entity who is not a party, in this case, the pharmacy. An employer can challenge a provider’s treatment as neither reasonable nor necessary, only through UR, and the company had not challenged the second prescription.

Benefits for volunteer firefighter overturned – Pennsylvania

In East Hempfield Township v. WCAB, a long-term volunteer firefighter was diagnosed with cancer four years after taking the job with the township. Several years later he filed for workers’ compensation benefits, asserting that his cancer had been caused by his exposure to carcinogens while volunteering for the township.

The case went through several appeals with varying decisions related to whether adequate notice of the claim had been properly given. The burden of proof is on the worker to show that notice was issued within 120 days of the injury, or the date upon which he knew, or should have known, he had a potential claim.

While the employee was diagnosed years earlier, he argued he did not know of the causal link between his cancer and firefighting and filed within 120 days when he received a doctor’s letter noting the connection. The Commonwealth Court found that the relevant inquiry was not when the employee actually knew of the work-relatedness of his injury, but rather when he should have known the work-relatedness through the exercise of reasonable diligence. The case was vacated and remanded.

High court upholds total disability award for trucker with pre-existing degenerative disc disease – Tennessee

In Wesley David Fly v. Mr. Bult’s Inc. et al., the Special Workers’ Compensation Appeals Panel with the Supreme Court affirmed a circuit court ruling that a trucker’s total disability was caused by a workplace injury, not the pre-existing degenerative disc disease, which was discovered at the time of the injury. The court noted that the law requires employers to “take an employee as he is,” and “all reasonable doubts as to the causation of an injury and whether the injury arose out of the employment should be resolved in favor of the employee.”

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

ADA
Lawsuit over lifting restrictions reinstated

In Victor E. Pfendler v. Liberty Dialysis-Hawaii L.L.C, the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court and reinstated a lawsuit filed by a dialysis technical specialist.The court found that the former employee’s and another technician’s statement that the most he lifted on a regular basis was about 40 pounds, conflicted with his former employer’s assertion that lifting 75 to 100 pounds is an essential job function.

The court noted, “if lifting more than 50 pounds was not an essential function of the job, he would have been a qualified individual and Liberty’s refusal to allow him to return to the (dialysis) position may have been discriminatory.” Alternatively, said the ruling, “if the lifting requirement was an essential function, he may have been entitled to an accommodation that the employer waive the formal lifting condition.”

Supermarket chain pays over $800,000 to resolve ADA charges

A Salt Lake City-based supermarket chain, Associated Fresh Market, will pay $832,500 to settle an EEOC charge that it denied reasonable accommodations to disabled individuals. It also has agreed to change its ADA policies and procedures and conduct training for its human resources team, store directors, assistant store directors and employees.

FMLA and ADA
When job functions can be fulfilled, part-time work is a reasonable accommodation

The 6th U.S. Circuit Court of Appeals in Cincinnati in Heidi Hostetler v. The College of Wooster, overturned a lower court ruling and reinstated disability discrimination charges filed by a college worker terminated because her post-pregnancy disability required her to work only part time. Noting that there were genuine disputes that full time work was an essential function of the job, the court stated although it may have been more efficient and easier for the college if the employee worked full-time, but could fulfill her job duties on a part-time basis, “those are not the concerns of the ADA”.

Workers’ Comp
Exclusive remedy bars suing company for asbestos exposure – California

In Allen Rudolph et al.,vs. Rudolph and Sletten, Inc., the 1st District Court of Appeals ruled that a person who was sickened by asbestos could not sue the company allegedly responsible for his exposure, even though the Supreme Court has ruled that employers have a duty to protect workers’ families from exposure through contact with fibers that come home on the employees’ skin, hair and clothing. The worker was exposed to asbestos as a child at home as well as a worker at the father’s construction company.

Tort claims by employees for injuries that are collateral to, or derivative of, a compensable workplace injury are barred by the exclusive remedy. A substantial contributing cause of his illness was his job exposure to asbestos and the exposure at home did not create a separate injury outside workers’ compensation coverage.

Out-of-state football player could not pursue a cumulative trauma claim – California

In Larry C. Tripplett v. Workers’ Compensation Appeals Board, Indianapolis Colts et. Al, the 4th District Court of Appeal ordered publication of its ruling finding that an out-of-state football player, who was a resident of the state, could not pursue a cumulative trauma workers’compensation claim in the state because there’s no proof he signed his National Football League contract there and he only played two games there.

At issue is jurisdiction, according to the court record. Since he was not “hired” (there was no evidence the contract was executed in the state) and the cumulative injury occurred at his retirement, rather than during any particular game, he was not entitled to workers’ compensation benefits.

Court finds financial need for advance to pay for litigation costs should be considered – Florida

In Anderson v. Broward County Sheriff’s Office, the 1st District Court of Appeal overturned a judge of compensation claims and ruled a worker’s financial need for an advance payment should be considered even when the purpose is to pay for expenses related to establishing compensability. An injured worker who had returned to full duty after nine months on light duty was seeking an advance to pay for an independent medical exam in support of a pending claim for continued medical treatment.

The court saw “no reason why the claimant’s financial need (or lack thereof) should not be considered when the purpose of an advance is to pay for litigation costs rather than other expenses such as rent or utility bills.”

Jimmy John’s not a joint employer – Illinois

The U.S. District Court in Chicago granted sandwich shop franchiser Jimmy John’s L.L.C, summary judgment in Re: Jimmy John’s Overtime Litigation. The court noted, “Jimmy John’s has established that it does not: (1) have the power to hire or fire franchise employees; (2) supervise and/or control employee work schedules or conditions of payments; (3) determine the rate and method of payment or (4) maintain employment records for franchise employees.”

Misclassification statute does not apply when employee sues employer – Michigan

In McQueer v. Perfect Fence Co., a laborer who worked intermittently for a fence company and had been directed to stop using a Bobcat as a hammer, but did not stop a fellow worker from doing so, was injured. He claimed the employer told him not to report his injuries as work-related because he was “not on the books” and there were no workers’ compensation benefits. However, he did receive benefits.

The Supreme Court reversed a finding of the state’s Court of Appeals noting a provision that prohibits the misclassification of certain employees in order to avoid workers’ compensation liability, did not apply to an injured employee who sued his employer, alleging an intentional tort. The statute provides a civil remedy to an employee of a contractor engaged by a principal, which was not the case here, thus the employee misclassification provision did not apply to him.

Squabbling employers must pay attorney fees – Minnesota

In Hufnagel v. Deer River Health Care Center, a nursing assistant aggravated an earlier back injury. A few years after she returned to work from the first injury, the company was sold and the workers’ comp insurer changed. When she experienced back pain, the new company denied liability, noting the need for medical treatment was a continuation of the prior work injury, which is under a different insurer. After nearly two years of legal proceedings that included six medical examinations, a Workers’ Compensation Court of Appeals judge overturned a lower ruling and ruled that the current employer was liable for the aggravated injuries.

In upholding the decision, the Supreme Court noted, “the efforts by each employer to shift responsibility to the other employer greatly increased the burden on counsel to provide effective representation… We therefore hold that (Ms.) Hufnagel was entitled to receive reasonable attorney fees.”

Auto insurer must pay work-related chiropractic treatment – Minnesota

In Jennifer Rodriguez v. State Farm Mutual Automobile Insurance Co., the Court of Appeals ruled that State Farm Mutual Automobile Insurance Co had to pay for an insured’s chiropractic treatment after the workers’ compensation insurance carrier stopped paying because they exceeded the 12 weeks specified under the work comp treatment guidelines. The employee was a bus driver who was injured when a person driving a stolen vehicle crashed into her bus. According to the court, it is up to the no-fault automobile insurer to seek payment from the workers compensation insurer, if applicable, and the court did not express an opinion whether treatment was considered excessive under workers’ comp regulations.

Overtime must be included in calculation of AWW – Mississippi

In Nixon v. Howard Industries, an assembler injured his back and the company stipulated that his average weekly wage was $645.40, which included overtime. A vocational rehab counselor determined that he could still work, but at a much-reduced wage. An administrative judge found that the injury had caused a loss of wage-earning capacity, but based the pre-injury weekly wage by assuming a 40-hour work week at his pre-injury hourly rate of $12.26. After several appeals, the Court of Appeals noted the average weekly wage is to be calculated by taking the actual earnings over a period of 52 weeks and dividing the sum by 52. Permanent partial disability is determined by two-thirds of the difference of the average weekly wage before the injury and earning capacity post-injury.

Knee injury aggravated at home compensable – Mississippi

In Prairie Farms Dairy v. Graham, an employee injured his knee while making a delivery of milk and underwent surgery, but continued to have problems with his knee. A little less than a year later, he fell at home because his knee gave way and he experienced back pain. Several years earlier he had had back pain and the nurse case manager told him an appointment with the physician would not be allowed because it was a pre-existing condition. He saw his personal health physician, but filed a petition demanding benefits for his knee injury and a subsequent injury to his back.

The company contested the compensability of the back condition, but the Workers’ Compensation Commission and the Court of Appeals approved it. The court noted that industrial loss is not synonymous with functional loss and means that a loss of wage-earning capacity has occurred. There was no dispute that the employee was not able to return to his position and that his earning capacity had greatly decreased. Further, the court said “every natural consequence” that flowed from the knee injury was compensable under law.

Legislative change to lump settlements process applies to pending cases – Nebraska

In Dragon v. Cheesecake Factory., the Supreme Court ruled that a legislative change to the process for finalizing lump-sum settlements applies to cases that were still pending when the statutory amendments took effect. The legislative change provides that a verified release becomes effective once payment is made and the Workers’ Compensation Court enters an order of dismissal with prejudice. According to the court, this was a procedural, not substantive, change and, therefore, applicable to pending cases.

The court also ruled that the existence of a legitimate question over the enforceability of liens against the settlement does not excuse an employer from making timely payment of the settlement amount.

Worker cannot raise “increased risk” argument on appeal – Nebraska

In Maroulakos v. Wal-Mart Associate, a worker who complained of not feeling well, fell and had a seizure. He sustained a facial laceration, sinus fractures and possibly a traumatic brain injury causing neurocognitive impairment. While he argued he tripped over a pallet, video surveillance and witness accounts did not support this. A compensation court judge determined that the fall resulted from an idiopathic seizure and syncope event that was personal to him and not compensable under workers’ comp and the appeal was heard by the Supreme Court.

The Court noted that the injured employee had not raised the issue of falling into a shelfing unit nor the ‘increased danger rule’, which recognizes that when an employment hazard causes or increases the severity of an injury sustained from an idiopathic accident, the injury becomes compensable. Since he had not raised this at trial, he could not raise on appeal.

Claim of injury isn’t sufficient for benefit award – New York

In Matter of Elias-Gomez v. Balsam View Dairy Farm, a farmhand claimed that he injured his right shoulder on a specific date, approximately one year earlier, while assisting in a “particularly difficult” birth of a calf. However, the farm representative testified that no calves were born on that date and there was no report of injury.

State comp law provides that, absent substantial evidence to the contrary, there is a presumption that an accident that occurs in the course of employment also arises out of such employment. However, this cannot be used to establish that an accident occurred nor relieve the burden of demonstrating that the accident occurred in the course of, and arose out of, his or her employment.

Benefits can be terminated even though worker still experiences pain – Pennsylvania

In Hernandez v. WCAB (F&P Holding Co.), the Commonwealth Court ruled that an employer could terminate benefits to an injured worker, although a judge accepted the employee’s testimony about lingering pain. A worker who was on light duty, injured his back and received workers’ compensation. However, when his doctor imposed further restrictions, the company could not accommodate and fired him.

When the employee filed a petition seeking compensation for the decrease in earning power, the company argued that the new restrictions were not related to the injury and filed a petition to terminate its payment of benefits, arguing the worker had fully recovered. A workers’ comp judge and the Commonwealth Court agreed. While the judge accepted the employee’s testimony of his continued pain, the court noted, a worker could forever preclude the termination of benefits by merely complaining of continuing pain.

Pennsylvania case law shows an employer can terminate benefits, even if a worker credibly testifies about the existence of ongoing pain, so long as the employer’s medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty, that the worker is fully recovered, can return to work without restrictions and that there are no objective medical findings that either substantiate the claims of pain or connect them to the work injury.

Hearing loss compensable despite long filing delay – Tennessee

In Westby v. Goodyear Tire & Rubber Co., the Supreme Court’s Special Workers’ Compensation Appeals Panel upheld an award of benefits to a worker for his hearing loss, even though he did not file his claim until years after he told his doctor he was aware he was losing his hearing. For much of his career with Goodyear, the worker was not required to wear hearing protection, but the company made it mandatory in the last few years of his employment. He told a doctor in 2002 that he knew he had hearing loss and that he had known for at least 10 to 15 years, but he did not file a comp claim until 2012.

The company contested his claim, contending he had failed to give timely notice of injury; however, the court noted case law has established that the statute of limitations for filing a workers’ compensation claim involving gradually occurring injuries does not begin to run until the date the employee is unable to work due to his injury. This is known as the “last-day-worked rule”. It also noted that the worker’s hearing tests demonstrated a continued loss of hearing and the test results were the actual notice of injury.

Hearing loss work related – Wisconsin

In Harley-Davidson Motor Co. Group L.L.C. v. the Labor and Industry Review Commission, an appeals court upheld a labor review commission’s ruling that a former employee of Harley-Davidson Motor Co. Group L.L.C. and Transportation Insurance Co. suffered an 84.67% hearing loss as a result of his employment. In this case, the medical opinions of the company-designated physician disagreed with that of the treating physician. An independent medical exam determined work-related hearing loss, but his calculation method was contrary to the state’s administrative code, which requires the calculation to be based on pure tone testing. Although the independent medical examiner found the pure tone test unreliable, the review commission and circuit court found them reliable and awarded an 84.67% binaural hearing loss.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

How employers get tripped up by the complexities of Workers’ Comp, ADA, and FMLA regulations

While Workers’ Comp (WC), ADA, and FMLA laws have been in place for many years, the overlap between the three is a constant challenge.The laws have different time frames, duration, and rules around eligibility and use the same terminology with different meanings. Several states, notably California and New York, have adopted their own leave of absence laws that are more expansive than the federal laws, and case law is constantly evolving and varies by region.

Here are common issues that get employers into trouble:

Length of leave

FMLA requires employers to provide up to 12 weeks of unpaid leave for a serious health condition and/or birth/adoption of a child. For eligible employees, the leave cannot exceed 12 weeks under law, but additional leave can be granted under the ADA. Leave can also be intermittent.

Under the ADA, employers must consider providing unpaid leave as a reasonable accommodation for employees with a disability, which is defined as a physical or mental impairment that substantially limits a major life activity. Leave can be intermittent. The EEOC notes that leave qualifies as a reasonable accommodation “when it enables an employee to return to work following the period of leave.”

While the maximum length of leave is undefined, the EEOC and several federal appellate courts have said that leave of “indefinite duration” can be considered an undue burden on the employer. Some courts have gone so far as to say that individuals seeking excessively long or undetermined leaves need not be accommodated because they are not “otherwise qualified” for their jobs under the ADA. The ADA protects individuals with disabilities who are otherwise qualified, with or without accommodation, to perform the essential functions of their jobs.

There are no limits on the length of leave under WC, although some states use evidence-based medicine guidelines to control WC costs. While workers’ comp provides for income replacement and health care, it does not, necessarily, provide job protection. This varies by state law.

Common issues:

  • For WC claims, FMLA leave should run concurrent with the WC leave. A workplace injury that requires time away from work and meets the criteria for a ‘serious health condition’ under FMLA should trigger an assessment of the worker’s eligibility for FMLA and, for those eligible, initiation of the paperwork process. If the employer properly notifies the employee in writing that the time off work receiving WC benefits will be counted as FMLA leave, it is counted against the employee’s applicable 12-week entitlement. Periodic treatment or therapy can count as intermittent FMLA leave.
  • The ADA and WC define disability quite differently. The ADA is not intended to cover temporary medical conditions. Work-related injuries do not always cause physical or mental impairments severe enough to “substantially limit” a major life activity. Moreover, a WC determination of permanent total disability doesn’t necessarily affect an individual’s ability to return to work under the ADA, although it may provide relevant evidence regarding an employee’s ability to perform the essential functions of the position or to return to work without posing a direct threat to themselves or others.
  • Staff is not adequately trained in what constitutes a ‘serious health condition’ under FMLA. Some experts define it as incapacity of more than three consecutive calendar days and/or continuing treatment. For example, if a worker is being treated for chronic back pain but has not been incapacitated for three days, it still might be covered. Migraines could be covered, but not headaches. Typically, routine care such as eye or dental exams, the flu, colds, and conditions where the treatment is limited to OTC medications are NOT serious health conditions.
  • Managers may fail to recognize that FMLA has been requested. The employee does not have to use the term ‘FMLA’ to request leave; rather, the employee must only give notice of the need for leave that is protected by the FMLA.
  • Once an employee exhausts the protected leave of 12 weeks under the FMLA, the employer must consider whether the employee is eligible for additional leave under the ADA. The ADA requires employers to “reasonably accommodate” employees with disabilities and such accommodation can include granting additional leave. In some cases, the ‘serious health condition’ can qualify as an ADA disability. ADA’s broad definition of “disability” can include mental afflictions such as depression and anxiety. An employee need not mention the ADA or ask for a “reasonable accommodation” to put the employer on notice of a possible need for accommodation. In some cases, a serious workplace injury should trigger the interactive process, sooner, rather than later.
  • Recordkeeping is lax, particularly involving intermittent FMLA leave. Documentation of the interactive process for ADA must be rigorous.

Benefits and reinstatement

Both the FMLA and ADA have reinstatement and benefit maintenance requirements, although the ADA allows an exception for ‘undue hardship.’ The ADA requires employers to reinstate employee to their previous position unless it causes undue hardship and maintain benefits the same as similarly situated employees on leave. Under the FMLA, health benefits must be maintained, others are based on policy. It protects the employee’s job during the leave period, and at the end of the leave an employer must return the employee to his or her original job or its equivalent.

While WC provides for income replacement and health care, it does not, necessarily, provide job protection. This varies by state law. However, employers are typically prohibited from terminating or otherwise taking adverse action against an employee in retaliation for the employee’s filing of a WC claim.

Common issues:

  • When an employee is covered by both ADA and FMLA, the reinstatement policy must allow return to the same job, not just an equivalent.
  • Employees incurring a compensable workers’ comp injury may be eligible for leave under ADA and FMLA. If so, the maintenance of benefits and reinstatement of employees to the same or an equivalent position as required by the laws is applicable.
  • Employees on workers’ compensation leave cannot be subjected to retaliation for filing an injury claim or collecting benefits, but they could be disciplined or terminated for legitimate reasons, including a refusal to report for work when expected or required, even if the expectation is to perform light-duty work.

Light duty assignments

Under the FMLA, employers can’t require employees to work during leave. Contact with employees to obtain information, such as passwords, needs to be brief and concise. Employees can reject a light duty assignment and can choose to stay home until they can return to the former position (or to an equivalent position), or until the available FMLA leave is exhausted.

Under WC, if an employee has been medically cleared for a light duty assignment, in many cases, the employer can terminate WC benefits if the employee refuses the assignment.

Under the ADA, light duty is a permissible accommodation. The employer is not required to provide the employee’s preferred accommodation. However, the law does not require employers to agree to a permanent light duty assignment as a form of reasonable accommodation.

Common issues:

  • An employee cannot be disciplined or terminated for refusing light-duty work when the absence is protected under the FMLA. If the employee is receiving WC benefits, the employer can terminate or modify the benefits.
  • Often in WC cases, the issue of whether an injured employee can return to work is decided by the claims adjuster in consultation with the employer, based on the work restrictions issued by the treating physician. Under the ADA, employers are typically not required to create even temporary light duty positions as an accommodation, but courts have differed on an employers’ obligations to open WC light duty programs to all disabled employees. When employers do, under the “interactive process” of the ADA, a more flexible approach that involves an open dialogue between the injured employee and the employer is required.
  • It is common for employers dealing with injured employees to impose a fixed limit, for example, a 90-day limit, on the length of light-duty transitional work. While such a fixed limit might not violate the requirements of the ADA, when the fixed light-duty period ends, just as when an employee’s leave is exhausted, the employer and employee would be required to reengage in the interactive process.
  • Under the ADA, while an employer cannot require an employee to do something that is inconsistent with restrictions listed by the employee’s doctor, an employer can require an employee to return to work if the employee can perform the work required with or without a reasonable accommodation. The interactive process is fluid and accommodations must constantly be adjusted as the restrictions and the job changes.
  • Under WC, light duty work must be consistent with medical restrictions set by the treating doctor. If an employee chooses not to take a light duty job that accommodates the medical restrictions, the employer can terminate or modify the benefits.
  • Managers and supervisors must be properly trained in implementing stay-at-work and return-to-work programs.

Medical inquiry/documentation

Under the ADA, medical inquiries must be job-related and necessary to assess ability to perform the essential functions of the job. Under the FMLA, employers can request certification of serious health conditions from healthcare providers and must give employees 15 days to provide certification. In WC, the discovery allowed can be broad and include pre-existing conditions. HIPAA’s privacy rule allows WC insurers, third-party administrators and some employers to obtain the necessary medical information to manage their WC claims. Disclosure of medical information can vary from state to state.

Common issues:

  • Under the ADA, medical examinations should be limited to determining an employee’s ability to perform the job and whether an accommodation is needed and would be effective.
  • Under the FMLA, a medical certification should demonstrate the need for leave but not exceed what is requested by the Department of Labor’s medical certification form.
  • Employers need to understand the state laws governing medical privacy and workers’ comp claims.

Complying with the array of laws and regulations governing work-related injuries is complicated for employers and their counsel. Employers must examine the requirements of each individual statute, and how they interrelate. Throughout the process, encourage open communication with the employee, rely on sufficient medical documentation, maintain consistency in decision-making, document the process, and monitor the leave.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

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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