HR Tip: EEOC issues updated Covid-19 Technical Assistance Publication

The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers on testing, medical exams, and essential workers.

Some of the updates include:

  • Employers may screen employees for COVID-19. Any mandatory medical test must be job-related and consistent with business necessity, be on a nondiscriminatory basis, and results need to be retained as confidential medical records according to the ADA’s requirements
  • Employers can keep a log of employees’ temperatures, although they must still maintain their confidentiality
  • All medical information related to COVID-19 may be stored in existing medical files
  • A temporary staffing agency or a contractor that places an employee in an employer’s workplace can notify the employer of the worker’s name if it learns the employee has COVID-19
  • Employers cannot postpone a start date or withdraw a job offer because an individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19, however, they can discuss telework or if the workers want to postpone their start date
  • Employers can disclose employee names to a public health agency when it learns workers have COVID-19
  • Employers should rely on the CDC, other public health authorities and reputable medical sources for guidance on emerging symptoms associated with the disease when choosing health screening questions
  • There may be reasonable accommodations for individuals with disabilities, absent undue hardship to the employer, that could offer protection to an employee who, because of a preexisting disability, is at higher risk from COVID-19
  • If an employee has a pre-existing condition, such as an anxiety disorder, that has been exacerbated by the pandemic, employers can ask questions to determine whether the condition is a disability and discuss accommodations
  • Undue hardship during the pandemic was clarified. In some instances, an accommodation that would not have posed an undue hardship before the pandemic may pose one now. Loss of income, ability to conduct a needs assessment, acquire certain items, and delivery to teleworkers are considerations

 

For additional information and resources on Coronavirus, go to the Duncan Financial Group COVID-19 Resource Center Online

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

HR Tip: Resources to help navigate the Families First Coronavirus Response Act (FFCRA), IRS tax relief, and related employment laws

On Tuesday, March 24, the Department of Labor (DOL) announced that the effective date of the leaves available through the Families First Coronavirus Response Act (FFCRA) will be April 1, 2020. The U.S. Department of Labor (DOL) issued regulations for the Families First Coronavirus Response Act (FFCRA) on April 1, which confirmed that employees must give notice to their employers of the need to take leave and provide documentation to support paid sick leave and emergency family and medical leave. The IRS also provided guidance on needed documentation. Here are current resources:

Temporary guidance

IRS guidance

Families First Coronavirus Response Act: Employee Paid Leave Rights

Families First Coronavirus Response Act: Employer Paid Leave Requirements

 

Q & A

Families First Coronavirus Response Act: Questions and Answers

COVID-19 and the Fair Labor Standards Act: Questions and Answers

COVID-19 and the Family and Medical Leave Act: Questions and Answers

 

Posters

Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

Federal Employee Rights: Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA)

Families First Coronavirus Response Act Notice – Frequently Asked Questions

 

Tax credits for small and mid-sized businesses

Under the act, employers are able to recoup these payments immediately by keeping a portion of the deposit it otherwise would pay as part of their employees’ federal, social security and Medicare taxes. Eligible employers who pay qualifying sick or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and child care leave that they paid, rather than deposit them with the IRS. If there are not sufficient payroll taxes to cover the cost of qualified sick and child care leave paid, employers will be able file a request for an accelerated payment from the IRS.

Employers need to keep accurate documentation on these issues.

More information

IRS Coronavirus Tax Relief

 

Field Assistance Bulletin

Field Assistance Bulletin 2020-1: Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA)

 

HIPPA, FMLA, and ADA

NIH HIPAA Privacy and Novel Coronavirus

The FMLA and Leave

ADA Accommodation

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Legal Corner

ADA

Recent EEOC settlements

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

Workers’ Compensation

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

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

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

Positive alcohol test doesn’t nix benefits – Florida

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

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

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

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

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

Employer cannot be penalized for unreasonably denying medical treatment – Illinois

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

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

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

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

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

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

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

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

Comp exemption for North Dakota businesses upheld – Minnesota

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

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

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

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

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

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

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

NFL player not a seasonal worker – Pennsylvania

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

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

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

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

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

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

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

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

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

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

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Legal Corner

ADA

Construction company pays $100K for firing worker with epilepsy

A Bellingham, Washington company, formerly doing business as Diamond B Constructors, Inc. and its successor, Harris Companies, will pay $100,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). A pipefitter, who also holds a rigger’s certification, was dispatched by her union to work on a project. When she told her supervisor that she has epilepsy, he and other supervisors determined she could not work safely at heights and terminated her. She had not requested accommodations, had no medical restrictions, and her epilepsy was well controlled by medicine.

The law requires employers to make a case-by-case assessment of an employee’s ability to perform the job when safety concerns exist. EEOC Seattle Field Director Nancy Sienko said, “Epilepsy reportedly affects 2.2 million Americans and affects each person differently. It is critical that employers not base job decisions on stereotypes, but instead carefully consider each individual’s abilities.”

FMLA

FMLA doesn’t provide protection for employees to evaluate family member’s medical condition

In Schaar v. U.S. Steel Corp., a manager in the customer quality engineering department, who lived in Michigan, was aware of problems with a top customer in Mississippi. When the matter became urgent, he was onsite in Tennessee and was ordered to travel to Mississippi to handle the problem himself. He refused because his wife had a heart condition and wasn’t feeling well and he had to return to Michigan to assess the situation. When he arrived home, he determined his wife did not require medical attention.

Returning to work the next day in Michigan, he was fired for insubordination. The manager sued under the FMLA for both interference and retaliation. The U.S. District Court for the Eastern District of Michigan ruled in favor of U.S. Steel on its motion for summary judgment on both claims. The manager never requested FMLA leave or a reduced work schedule to care for his wife.

Distinguishing between providing care to a family member and evaluating a family member’s condition, the court determined he was not providing care and was not entitled to FMLA leave.

Workers’ Compensation

Comp settlement bars claim for disability discrimination – California

In an unpublished decision, Kennedy v. MUFG Union Bank, a bank employee claimed she worked in a hostile work environment and took a medical leave for stress, anxiety, and depression. While she was out, the bank restructured and eliminated her position. Unlike others, she did not receive a severance package.

Her request to return on a reduced work schedule was denied because the position was eliminated, so she filed a comp claim. When it was settled, she resigned voluntarily. She then filed suit based on disability and her race. The court argued there could be no wrongful termination because she was not terminated and that the record demonstrated a legitimate, nondiscriminatory reason for the increased supervision.

Employer not liable for fatal accident caused by injured employee – California

While commuting to work, an employee of the City of Los Angeles struck and killed a pedestrian. A chemist who worked in the lab, the employee did not use his car for employment. He did have a neurological condition and had fallen at work, suffering a back sprain. After some time off, he was allowed to return to work with restrictions. About three weeks later he was driving to work and struck and killed a pedestrian. Initially his license was suspended, but it was reinstated and he was not charged.

Two brothers of the deceased argued the city should be held responsible because it knew of his condition and allowed him to return to work prematurely, so the “work-spawned risk endangering the public” exception to the going and coming rule applied. The court disagreed and found the chemist was on his commute to work and the accident was unrelated to his employment.

Exclusive remedy defense in civil suit allowed in spite of comp denial – Florida

In McNair v. Dorsey, an appellate ruled that the employer’s denial of liability for a comp claim did not prevent it from using the exclusive remedy defense in a civil case. The employee worked for James Armstrong’s tree service company and was working with a coworker, Dorsey, when he alleged he suffered injuries. The insurance company found that there was no compensable claim. He then voluntarily dismissed the comp claim and alleged negligence on the part of both Armstrong and Dorsey, arguing the exclusive remedy defense did not apply since his claim had been denied.

While a trial court found in favor of the employer, the appellate court noted an employer can be barred from raising a workers’ compensation exclusivity defense if the employer denies the employee’s claim “by asserting that the injury did not occur in the course and scope of his or her employment.” However, the court noted that the employer is not always foreclosed from claiming immunity to a lawsuit simply because it denied compensability in an earlier proceeding.The factfinder needs to determine if the accident occurred in the course and scope of employment and would have been covered by workers’ comp and protected by exclusive remedy.

Worker who filed comp claim after being fired can bring retaliatory discharge suit – Florida

In Salus v. Island Hospitality Florida Management Inc. a worker reported an injury and later told the employer he was having difficulty getting follow-up treatment. Two weeks later he was fired, allegedly for threatening physical harm to a co-worker, which he denied. He filed suit for retaliatory discharge. The trial court found that reporting an injury was not the same as filing a claim and granted summary judgment to the employer.

The appellate court disagreed. It noted it would not make sense to limit the statute to retaliatory acts that occurred after filing the claim because an employer could easily avoid liability by firing the employee right away. Further the employee’s actions were consistent with a workers’ comp claim that is protected. Since there was a genuine issue of material fact as to the reason for termination, summary judgement was inappropriate.

Health care providers can’t go after comp settlement – Illinois

After an injured employee filed for bankruptcy protection for minimal assets and her pending workers comp claim ($31,000), the state Supreme Court ruled that the proceeds of a workers comp settlement are exempt from claims made by medical providers who treated the injury or illness in re Hernandez. She owed a combined $138,000 to the three medical practices.

Section 21 of the statute provides that any payment, award or decision under the Workers’ Compensation Act is unequivocally free from claims to satisfy debt; however, the health care providers argued that amendments in 2005 provide an exception to the exemption. The court disagreed, noting there was “no ambiguity whatsoever in this provision.”

Employer does not have to pay for rehab after injury is resolved – Minnesota

In Ewing v. Print Craft Inc., an employee sprained his ankle and there was medical disagreement as to whether he developed complex regional pain syndrome (CRPS). His primary care provider and podiatrist found he had, but doctors at the Mayo Clinic disagreed and said the injury was resolved. He met with a rehabilitation consultant who prepared a rehabilitation plan and submitted it to the Department of Labor and Industry and also provided medical management services to address Ewing’s reported symptoms.

Although the insurance company notified her that they were requiring an IME and would not pay for any further services, the consultant continued to provide services. The IME found that the employee had suffered an ankle sprain and did not have CRPS. A compensation judge held the injury was resolved on the date provided by the Mayo Clinic. The consultant appealed and the WC Court of Appeals overturned, noting the print company needed to provide notice and show good cause to terminate the rehabilitation plan.

The Supreme Court reversed, noting an employer’s liability ends when the worker is no longer disabled.

Worker who intentionally shot self with nail gun denied comp – Nebraska

In Eddy v. Builders Supply Co. Inc., an employee said a nail gun misfired and caused a three-quarter-inch nail to become embedded in her right temple. There were no witnesses. While co-workers testified that guns had misfired in the past, the company presented evidence regarding her personal life and a possible suicide note. The compensation court found that the employee shot herself intentionally and the Supreme Court agreed.

Misrepresentations about job search nix benefits – New York

In Matter of Calabrese v. Fortini Inc., an appellate court upheld a finding that a worker had made misrepresentations about his efforts to find a new job, thereby forfeiting his entitlement to benefits. The employer’s investigator contacted several of the employers identified by the worker and found he had not submitted an application, applied for a job that did not exist, or the contact did not exist.

Although the appellate court acknowledged that this evidence was hearsay, it was sufficiently reliable and provided substantial evidence to support the Workers’ Compensation Board finding that the worker had made false representations to obtain benefits.

Award of benefits for unwitnessed and unexplained fall upheld – New York

In Matter of Docking v. Lapp Insulators LLC, a truckdriver was loading a cart when he apparently fell and was found unconscious and bleeding by co-workers. When he regained consciousness, he had no memory of what happened. Under state law, there is a presumption of compensability for accidents occurring during the course of employment, which are unwitnessed or unexplained, and he was awarded benefits by a compensation law judge.

Upon appeal, a state appellate court noted to rebut the presumption, it is the employer’s burden “to provide substantial evidence that the accident was not work-related.” While the employer presented medical testimony that the fall and resulting brain injury were caused by a preexisting cardiovascular condition, the Emergency Room doctor testified that there were no signs of heart damage or atrial fibrillation. The possibility of a preexisting, idiopathic condition was not enough to overturn the decision.

Assaulted bus driver not fully disabled by PTSD and morbid obesity – New York

In Matter of the Claim of Robert Rapaglia v. New York City Transit Authority, the Supreme Court Appellate Division affirmed a Workers Compensation Board decision that the driver had a 60% loss of earning capacity but was not fully disabled. The bus driver argued that the board failed to consider his obesity and limited education and work experience in calculating his percentage of lost wage-earning capacity.

The court noted that in rating the severity of a medical impairment due to PTSD or other causally-related psychiatric conditions, “the evaluation should include the impact of the psychiatric impairment on functional ability, including activities of daily living.” While there was conflicting medical testimony, the court found the Board had not erred in finding that he could not drive a bus, but was capable of other work, nor could it conclude that his obesity was causally related to the workplace injury.

Employer may have to pay for expensive compound cream – Pennsylvania

In Workers’ First Pharmacy Services LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Gallagher Bassett Services), the Commonwealth Court ruled that a pharmacy did not prematurely file a fee review petition to challenge an employer’s refusal to pay for a compound cream that had been prescribed to an injured employee. The employee had injured her shoulder and the comp claim was accepted. Her physician prescribed a compound cream, which the pharmacy dispensed and billed the employer $4,870.

The employer refused to pay, and the pharmacy filed a fee review application, which the employer argued was premature because it had not been established that the cream was related to the work injury. However, the pharmacy argued that company waived its right to challenge the cream as unrelated because it did not seek a Utilization Review (UR).

After several appeals, the Commonwealth Court ruled that employers or insurers must make payments to providers for treatment within 30 days unless there is a dispute as to the reasonableness or necessity of the treatment, in which case the payer may seek a UR. The court vacated the decision and remanded for a fee review determination.

Widow and children to receive death benefits for fatal workplace stabbing – Pennsylvania

In JBS Holdings USA Inc. v. Workers’ Compensation Appeal Board, a worker was stabbed to death by a co-worker. While the company argued that the murder was related to a “personal animus” and not work-related, the court ruled there was no evidence of personal animosity. The ruling was upheld upon appeal.

Temporary worker who experienced horrific injuries fails to win tort lawsuit – Tennessee

In Henry v. CMBB LLC, the 6th U.S. Circuit Court of Appeals held in a 2-1 decision that the employee’s intentional tort lawsuit was barred by the exclusive remedy provision of the Tennessee Workers Compensation Act. The temporary worker was assigned to work at a manufacturing facility and operated a 200-ton metal press, which contains a light curtain that prevents it from cycling when it detects a worker nearby. An operator had reported that the curtain was not working properly and one was on order, but the press remained in service.

The temp worker was operating the press when the machine cycled, crushing her arms, both of which were amputated below the elbow. She and her husband filed a lawsuit arguing the company intended to injure her because it was well aware of the danger but continued to operate the machine. The courts, however, noted that even if the employer was aware of the potential for injury, it does not mean the employer intended to injure the worker. Precedent has held that even egregious safety violations fail to show actual intent to injure and the exclusive remedy provision prevails. In Tennessee, the intentional tort exception is quite narrow.

Two years apart, injuries can stem from same accident – Virginia

In Merck & Co. v. Vincent, a worker injured his neck and arm in 2009. In 2011, he became dizzy and fell as a result of pain medication, seriously injuring his knee. The Court of Appeals upheld the Workers’ Compensation Commission ruling that the injuries arose from “the same accident” for purposes of determining whether he was permanently and totally disabled. The Virginia statute provides for an award of permanent total disability benefits to a worker who has suffered the functional loss of two limbs “in the same accident.”

The court noted the “compensable consequence” doctrine, which says that if an injury arises out of and in the course of employment, “every natural consequence that flows from the injury likewise arises out of the employment unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct.”

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

 

Legal Corner

ADA
Lawsuit alleging wrongful termination because perceived-as disabled reinstated

In Paula E. Babb v. Maryville Anesthesiologists P.C., a nurse anesthesiologist contends that Tennessee-based Maryville Anesthesiologists P.C., fired her because it thought she was visually disabled. She acknowledges an eye condition that requires her to hold written records close to her eyes, but argues it does not inhibit her ability to read.

The company, however, says she was fired because of two serious errors that put patients at risk. But an email was circulated to staff saying that she was fired because she “has been having major issues with her eyesight and as of late, it has seemed to be getting even worse.”

The Sixth Circuit finds that the email and other evidence present a triable case of regarded-as disability discrimination under the ADA and reinstates the case.

EEOC disability suit settled for $2.65 million

Crossmark, a company that provides workers to dispense free food samples to shoppers, allegedly failed to provide a reasonable accommodation by not allowing its employees to sit for more than 10 minutes every two hours. The Equal Employment Opportunity Commission (EEOC) noted some employees were permitted to sit as needed when they performed the same job while working directly for the retailers.

The firm agreed to pay $2.65 million and designate ADA coordinators to address accommodation requests, among other provisions.

Workers’ Compensation

Tort claim for lead poisoning barred by exclusive remedy – California

In an unpublished opinion, Deville v. Bloch, the company, Exide, was ordered to suspend operations in Vernon because plant operations were causing the discharge of illegal amounts of lead into the air, water, and soil. Before the plant’s closing, a long-term worker at the hazardous waste treatment and storage plant lost consciousness while cleaning one of the facility’s furnaces. More than three years later he sued, alleging unspecified injuries caused by exposure to lead and other hazardous chemicals.

The appellate court upheld the dismissal of the claim, agreeing workers’ comp exclusive remedy applied. The allegations that Exide knew the employees faced a risk of harm from exposure to lead and other chemicals were not enough to invoke the fraudulent concealment exception to workers’ compensation exclusivity.

Workers over 70 have five-year statutory limit on PTD benefits – Florida

In Crispin v. Orlando Rehabilitation Group, the 1st District Court of Appeals ruled that a worker over the age of 70 is statutorily limited to permanent total disability benefits for a calendar period of five years after she is determined to be permanently and totally disabled. According to the court, eligibility for PTD payments ends five years to the day after the worker is determined to be permanently and totally disabled.

Undocumented worker denied medical care for injury – Florida

In Hernandez v. Food Mkt. Corp., an appellate court upheld the ruling that an undocumented worker who sustained injuries in a work-related accident can be denied benefits on the basis that he used someone else’s Social Security Number (SSN) when completing an intake form at a medical provider. By so doing, the court noted the injured worker had offered a false or misleading statement to secure workers’ compensation benefits.

Pre-existing condition does not negate continuation of medical treatment – Florida

In Premier Community Healthcare Group v. Rivera, a divided appeals court ruled that a dental assistant who was injured while preventing a patient from falling, but had a previous medical condition related to a car accident, must continue to receive benefits. The employer and insurer initially accepted compensability of injuries to the low back and neck, but later denied claims for cervical injections and physical therapy when her medical history revealed that she had a prior motor vehicle accident and previous neck symptoms.

The carrier presented two doctors who testified that the workplace injury is not the major contributing cause of the need for medical treatment of the cervical spine. However, in a divided opinion, the court upheld the JCC’s opinion the worker’s doctor was more persuasive.

JCC may not ignore opinion of expert medical advisor – Florida

In Olvera v. Hernandez Constr. of SW Fla. Inc., although an Expert Medical Advisor (EMA) indicated in his report that a worker had not reached MMI because future surgery was required, a Judge of Compensation Claims (JCC) found that the worker had reached MMI. An appellate court found that the JCC’s decision, which was made based on the EMA’s answer to one leading hypothetical question on cross-examination, was in error because the JCC cannot disregard the presumed correctness of an unequivocal EMA.

Civil suit can proceed in workplace parking lot shooting – Georgia

In Smith v. Camarena, the estate of a worker who was killed in a grocery store parking lot after finishing her shift filed a civil suit against her employer. The woman and a co-worker were approached by a masked gunman who demanded their purses. An assistant manager was driving by and called to the gunman and shots were exchanged and the woman was killed. While a trial court denied the suit based on the exclusive remedy of workers comp, the Court of Appeals said it could proceed.

Although it is undisputed that she had left work, the employer argued she was “within the period of her employment under the ingress/egress rule.” Noting the parking lot was owned by the store’s landlord and served several other stores, the appellate courts said there is a question of whether the location was part of the employer’s premises and a jury should decide if the shooting occurred in the course of employment.

TTD denied for failure to follow work restrictions – Georgia

In Burch v. STF Foods Inc., the Court of Appeals ruled that a restaurant worker, who had injured his back and had received written restrictions from the restaurant’s owner, was not entitled to temporary total disability benefits after being fired for failing to abide by the lifting restrictions. Despite the instructions, he continued to lift heavy items, received warnings, and suffered additional injuries to the back/shoulder area.

When he was fired for insubordination, he filed for workers comp and an administrative law judge (ALJ) found in his favor, finding his restrictions were related to his work injury. Upon appeal, the court found the ALJ had erred and that the worker failed to prove any loss of earning capacity was attributable to his compensable work injuries, but rather was due to subordination.

Case to watch: McDonalds’ employees in Chicago sue over workplace violence – Illinois

Seventeen Chicago-area workers filed suit in the Circuit Court of Cook County claiming that the “Experience of the Future” store renovations makes it easier for angry customers to leap over the counter and attack them. The suit claims that in the Chicago area, there are more than 20 calls every day to emergency services from McDonald’s stores and that the company ignores practices that could make the stores safer.

Drainage contractor found guilty of manslaughter in workers’ deaths – Massachusetts

Atlantic Drain Services of Blackstone had been cited by OSHA in 2007, 2012 and again in 2017 after two workers drowned when a trench collapsed. The company was fined $1.47 million in 2017. Three years later, Atlantic Drain owner Kevin Otto and his company were separately found guilty of two counts of manslaughter and one count of witness intimidation in Superior Court.

In addition to failing to use cave-in protection and placing employees in severe danger, it was alleged that the company attempted to mislead the investigation by falsifying documents, including sign-in sheets for excavation and trenching training, as well as workers’ signed acknowledgment of receiving personal safety equipment.

The owner faces up to 20 years in prison and fines up to $250,000.

City agrees to pay workers comp, a wrongful termination claim, and hold open the possibility of a future asbestos-related claim – Michigan

The East Lansing City Council has agreed to pay a former wastewater treatment plant employee $125,000 to settle a workers’ compensation claim and a wrongful termination lawsuit. He alleged he was fired because he reported health and safety violations to state agencies and because he filed a workers’ compensation claim. He also claimed respiratory damage from asbestos and a mercury spill at the facility and the city agreed he could file a claim in the future if he is diagnosed with an asbestos-related illness.

No causal connection between tinnitus and work-related fight – Missouri

In Schlereth v. Aramark Uniform Servs., a state appellate court panel affirmed a Commission decision concluding that a supervisor’s tinnitus was not caused by a work-related brawl that resulted from the supervisor’s crude characterization of a subordinate’s work. Although he did sustain obvious injuries to the face and head, he did not seek benefits until three years later after he received social security benefits.

In spite of surgery complications, worker fails to prove medical causation of sinus cavity clot – Nebraska

In Homstad v. Block 21, LLC, a worker underwent knee surgery for a work-related injury and suffered a deep venous thrombosis (DVT) in his thigh, as well as a pulmonary embolism. Later, he contended that a blood clot in his sinus cavity was causally connected to the earlier injury and surgery. The medical experts were cautious, neither confirming or denying, the causation. Thus, an appellate court upheld the Workers’ Compensation Court decision that the worker had not met the burden of proof.

Workplace fire did not conclusively cause lung disease – Nebraska

In Pennington v. SpartanNash Co., a three-judge panel of the Court of Appeals affirmed a Workers Compensation Court decision that a worker with lung disease failed to show that his illness was brought on by a workplace fire. He worked as a store manager for Michigan-based food distributor SpartanNash and put out a small fire in an unused walk-in freezer. Although he did not seek medical treatment at the time, a few days later he fainted and was referred to a pulmonologist, who diagnosed pneumonitis and ordered him to stop working. His treating physician wrote a letter stating that his pneumonitis and symptoms were “more likely than not” a result of the chemical and smoke exposure, and a second physician opined that his exposure on the day of the fire more likely than not resulted in his lung disease. The company’s medical expert said the cause could not be determined with certainty.

The court found that his medical experts failed to provide sufficient support for their opinions.

Construction company operator, foreperson, and engineer indicted for manslaughter in death of laborer following wall collapse – New York

Owners and managers of WSC Group LLC, a Sunset Park construction company, have been indicted on manslaughter, negligent homicide and workers’ compensation insurance fraud some 14 months after a wall collapsed and killed a welder at an excavation site in Brooklyn.

Worker employee, not independent contractor – North Carolina

In Macias v. BSI Associates Inc., a worker was injured while working for the Carolina Chimney Crew, settled the claim, and agreed not to work for the company in the future. The following year, the owner suggested the former employee start his own company, purchase the necessary insurance, and work as an independent contractor for him. His insurance indicated zero employees and he excluded himself from coverage.

The company furnished vehicles, tools, equipment and supplies, business cards, Carolina Chimney Crew clothing, and provided specific instructions on where he was to work and what work he was to perform each day. He resumed his work in almost identical fashion as when he was an employee and a few years later fell from a scaffold and fractured his spine.

While the claim for workers’ comp was denied by the company’s insurer based on his status as an independent contractor, a three-judge panel of the Court of Appeals unanimously affirmed an Industrial Commission decision holding that the injured man was an employee, not an independent contractor, and, therefore, entitled to workers compensation.

Definition of employer’s premises clarified in parking lot decision – Pennsylvania

In US Airways v. Workers Compensation Appeal Board, a 6 – 0 decision of the Supreme Court’s Western District in Pittsburgh affirmed a workers compensation judge’s finding that a flight attendant was in the course and scope of her work when she was injured. The flight attendant was injured after her shift ended while riding an airport shuttle bus to an employee parking lot. The City of Philadelphia, and not the airline, owned both the shuttle bus and the employee parking lot.

With the decision, the Court stood by its earlier Epler holding that the phrase “the employer’s premises” should be construed liberally to include any area that is integral to the employer’s business operations, including any reasonable means of ingress to or egress from the workplace.

Employee of staffing agency cannot sue borrowing employer – Pennsylvania

In Burrell v. Streamlight, an employee of a staffing agency fell while assigned to Streamlight, received comp benefits from the staffing agency, and filed a negligence suit against Streamlight. Streamlight argued it was acting as his employer at the time and, therefore, was immune from civil liability.

The appellate court stressed that the issue turned upon whether the borrowing employer had the right to control not only the work to be done by the borrowed employee but the manner of performing it. It found the evidence established that Streamlight was his employer.

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Legal Corner

ADA
Adverse employment action cannot be motivated by associational disability claim

The association provision of the ADA does not require employers to reasonably accommodate nondisabled employees so that they may care for disabled relatives or others. In Kelleher v. Fred A. Cook Inc., 2d Cir., a truck operator had a daughter who was born with Rett Syndrome, a severe neurological disorder. After he informed his company that he may have to rush home occasionally, he was given different job responsibilities with lower pay and his request to work 8-hour shifts, rather than 10-12 was denied. His supervisors told him, “his problems at home were not the company’s problems” and that he would not receive a raise.

After his daughter had a near-fatal seizure he told the company he could not work his next shift and he was demoted. A few weeks later, he was 10 -15 minutes late for work and ultimately was fired. While a district court dismissed his complaint under the ADA, the 2nd Circuit reversed. Although it acknowledged that he was not entitled to a reasonable accommodation as an employee associated with an individual with a disability under the ADA, the Court noted, “an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.”

The company did not have to accept his schedule request, but his termination could not be motivated by his daughter’s disability. The court found sufficient allegations that the employer thought his daughter’s disability was a distraction and terminated him as a result because he was told “his problems at home were not the company’s problems” and was demoted after missing a shift to care for his daughter.

 

 

Woman wins lawsuit against university for not extending leave for postpartum depression

In Alves v. Trustees of Boston University, a woman who suffered from postpartum depression recently won a disability discrimination case against Boston University, her former employer, after her request for a second medical leave was rejected following the birth of her son about three years ago. Her leave was extended once under the FMLA, but her request for a second extension was denied and she was fired.

A jury awarded her $144,000 in compensatory damages for lost wages and emotional distress since the University did not follow the interactive process to reach a reasonable accommodation.

Jury awards Walmart employee $5.2 million

A Walmart cart pusher, who has a developmental disability and is deaf and visually impaired, had worked at a Beloit, Wisconsin, Walmart for 16 years. After a new manager started at the store, the employee was suspended and later forced to resubmit medical paperwork to keep his reasonable accommodations at his job. Walmart indicated safety concerns triggered the request. Before his suspension, the employee had performed his job with accommodation including assistance of a job coach.The paperwork requested the coach’s continued assistance. At that point, the employee was terminated.

Walmart’s position was that the employee could not perform the essential parts of his job with or without reasonable accommodations and that the EEOC demands were unreasonable. The company is weighing its options.

Workers’ Compensation

Safety citation for failure to require appropriate footwear upheld – California

In Home Depot USA Inc. v. California Occupational Safety and Health Appeals Board, the Court of Appeals in Riverside unanimously affirmed an administrative law judge’s safety citation of $12,375 against Home Depot for failing to require its employees to wear appropriate footwear and ensure workers complied with industrial truck operation standards at its Mira Loma distribution warehouse. Two Home Depot warehouse workers had an accident while driving electric pallet jacks and one caught her foot between two jacks, sustaining an injury.

A Cal/OSHA inspection revealed that the employees were not wearing steel-toed footwear or work boots, but most wore sneakers. The investigator cited Home Depot for failing to require employees to wear appropriate foot protection and ensuring employees comply with safe operation standards for industrial trucks.

Home Depot’s policy required only that workers wear “closed-toed and closed-heeled shoes” and specifically did not allow “flip-Flops, sandals, open-toed shoes, or open heeled shoes.” The company argued that steel-toed boots or similar footwear can cause ergonomic problems, tripping hazards, and fatigue, and they can be “cumbersome,” “uncomfortable” and “bulky.”

Amicus curiae, Retail Litigation Center, Inc. and National Federation of Independent Business, who supported Home Depot, objected that the Board’s opinion articulates an “uncertain standard [that] will have far-reaching consequences…” The appeals court noted that a violation of the safety order is not based on previous history of accidents or injuries resulting from the exposure but rather on the existence of the danger which may cause injury. However, the court did “agree the language in the Board’s opinion can be read to sweep too broadly, so we emphasize our holding is limited to the facts and evidence of the case.”

Ruling on enforceability of unsigned document published – California

The 2nd District Court of Appeal’s decision in Travelers Property Casualty Co. of America v. WCAB (CIGA) established that an insurance policy’s limiting endorsement for special employees could not be invalidated just because the employer had not signed it. It originally was released as an unpublished decision, which is not binding precedent.

Unexercised right to subrogation does not bar removal of civil suit to federal court – California

In Gutierrez v. McNeilus Truck & Mfg, a worker was seriously injured when he fell from the roof of a garbage truck and sued the company that designed and manufactured the truck. When the case was removed to federal court on diversity grounds, the company filed a motion to remand because generally a civil action arising under the workers’ compensation laws of a state may not be removed.

However, the court denied the motion because the company contended that the claim arose under the workers’ compensation law because the injured worker’s employer and insurer had the right of subrogation, but neither the employer nor the insurer had asserted a subrogation claim. Therefore, they were not parties to the action. If the employer or insurer had intervened before the removal, there could have been a different outcome.

IME opinion that smoking and not worksite caused respiratory condition nixes claim – Florida

In Ernesto Blanco v. Creative Management Services LLC/Technology Insurance Co., an appeals court upheld the opinion of a judge that the major contributing cause of an employee’s respiratory condition was his 17-year history of cigarette smoking, not his 11 days on the job at an events management firm, handling materials that produced sawdust and debris in the air. On appeal, one of the worker’s challenges was the qualifications of the employer’s independent medical examiner (IME), who was not a pulmonologist. The court disagreed noting the IME was a board-certified occupational medicine specialist with extensive experience in exposure cases leading to pulmonary problems and qualified to give an opinion.

Jury awards over $3 million to injured worker in retaliation case – Illinois

In Jankowski v. Dean Foods, a worker who was injured at Dean Food’s Huntley milk processing facility, collected workers’ compensation, but refused work that exceeded his medical restrictions, was not offered any other light duty positions, and was fired. The jury found that Dean Foods discriminated against Jankowski in violation of the ADA by failing to accommodate his disability for one of the several open positions which he was able to perform and awarded $3,316,443 for lost wages and benefits and emotional distress.

Court erred in approving lump sum PPD award – Illinois

In Annoni v. City of Chicago, an appellate court said the employer could not be ordered to pay the worker a lump sum benefit unless the worker had sought such a lump sum pursuant to special statute, 820 ILCS 305/9. Workers’ compensation benefits are to provide a substitute for an injured worker’s lost wages, and as such, the Legislature has indicated a strong preference for period payments.

Parking lot injury not compensable – Illinois

In Walker Brothers v. IWCC (Ramsey), a restaurant posted a notice in the employee break room stating they could park in the Ace lot, which was near the restaurant. After meeting another employee who had a key to the restaurant, an employee slipped and fell as he walked to work. An arbitrator found that he failed to prove that he was in an accident that arose out of and in the course of his employment, but the Workers’ Compensation Commission reversed, and a circuit court judge affirmed.

On appeal, while the appellate court acknowledged employer “provided” parking lots are exceptions to the rule that injuries are not compensable when an employee slips and falls while traveling to or from work, the restaurant did not own or control the lot, nor did it pay for maintenance, and employees were not required to park there. Thus, the injury was not compensable.

Pre-existing fragile mental state exacerbated by workplace injury leads to permanent total disability – Missouri

An employee who endured “significant psychological trauma as a victim of physical and sexual abuse after her daughter’s rape and murder,” suffered head and neck injuries in an assembly line accident. When she returned to work where the plant was noisy, she suffered headaches and lapses of concentration and was unable to keep up with work demands. She was fired after working light duty for one week.

She filed a disability claim, which her employer eventually settled for $30,000, deeming her partially disabled. Later, a judge and the full state Workers Compensation Commission denied her claim for permanent disability, finding she did not “meet her burden of proving the nature and extent of any alleged preexisting psychological disability by a reasonable degree of certainty.” The appellate court disagreed and found the state fund liable for the woman’s permanent total disability, stating that she “met her burden” under state law “establishing that her preexisting permanent disabilities were serious enough to constitute a hindrance or obstacle to her employment or reemployment,” among other reasons.

Additional compensation denied to worker whose pain was not credible – Nebraska

In Oneyda Jordan v. Tyson Fresh Meats Inc., a chicken processing plant worker who underwent surgery to both hands for a compensable work injury sought additional compensation for her continued pain. An appeals court affirmed the denial by the workers compensation court, noting medical evidence proved she had reached maximum improvement and could work unrestricted. Further, based on testimony from co-workers and surveillance video that contradicted her testimony of extreme pain, the court rejected her argument that her pain supported a loss of earning capacity.

Subchapter S business owner benefits based on wages, not share of profits – Nebraska

In Bortolotti v. Universal Terrazzo & Tile Co., the sole stockholder and the president of a Subchapter S corporation, suffered a compensable injury. The IRS Schedule E showed self-employment wages of $3,950 and “qualified production activities income” of $186,873, and the owner testified that he took a weekly draw of $3,625. The case made its way to the Supreme Court that said wages are compensation for activities as a corporate employee and do not include net profit for an employee of an S corporation. It was the employee’s burden to provide evidence differentiating his wages as a corporate employee from his profits as a corporate shareholder, which he did not do. Based on an annual wage of $3.950, he was entitled to $49 per week in benefits, the minimum income benefit.

Volunteer not entitled to benefits – New York

In Matter of Mauro v. American Red Cross, a volunteer received her full salary from her employer while participating in events for the Red Cross during employment hours. She was hit in the nose by a hand cart while she loaded materials into her cart and filed a workers’ comp claim against the Red Cross. The appellate court affirmed the denial of benefits because there was no employment relationship between the volunteer and the charity.

First appellate decision to deal with medical marijuana and workers’ comp – New York

In Matter of the Claim of James Kluge, v. Town of Tonawanda et al., Workers Compensation Board, a police officer sustained a permanent partial disability and suffered from chronic pain. He was prescribed medical marijuana in 2017, which was denied by the comp insurer. He sought review of the denial of the variance request with a worker’s compensation law judge who overturned the denial. However, the Workers Compensation Board reversed finding that “it could not approve a variance for treatment already rendered.”

On appeal, the Court acknowledged that the Board had properly denied the variance request, but indicated it should have considered the merits of the request for prospective marijuana treatment, since the officer has a chronic pain condition necessitating ongoing treatment. The case was remanded for further proceedings.

Disability cannot be apportioned between traumatic brain injury and pre-existing MS – New York

In Matter of Whitney v. Pregis Corp, a maintenance worker slipped on a patch of ice and suffered injuries to his back, hip, head and brain. He also was diagnosed with Multiple Sclerosis (MS) and filed a motion for compensability, arguing that the MS was either directly induced or exacerbated by the fall. A workers’ compensation law judge found that MS was a pre-existing condition unrelated to the fall and the Board affirmed and apportioned 60 percent of the disability to his non-disabling and undiagnosed multiple sclerosis.

An appellate court overturned, noting there was no evidence the MS had affected his abilities to perform the duties of his employment prior to the accident and that the condition had not even been diagnosed until after the accident. Thus, apportionment, as a matter of law, was inappropriate in the case.

Sole remedy for deceased worker’s family is workers’ comp – North Carolina

In State Farm Mut. Auto. Ins. Co. v. Don’s Trash Co., an appellate court held that the auto liability insurer of a corporation that had temporarily borrowed an employee of a separate, but related corporate entity to drive one of its vehicles, need not defend a wrongful death action filed against the corporation. The “borrowed” employee was driving at the time of the fatal crash; therefore, he was the co-employee of the employee who was killed in the vehicular crash and the sole remedy of the deceased’s estate was under workers’ compensation.

Court rejects constitutional challenge to “Protz-fix” – Pennsylvania

In Pennsylvania AFL-CIO v. Commonwealth, the Commonwealth Court rejected a constitutional challenge to the General Assembly’s revised impairment rating evaluation process, which mandates a physician’s use of the American Medical Association “Guides to the Evaluation of Permanent Impairment,” 6th edition (second printing April 2009) for determining impairment in workers’ compensation cases. The Pennsylvania AFL-CIO asserted that the new law also contained an impermissible delegation of authority to the AMA.

However, the Court noted the General Assembly can adopt as its own “a particular set of standards which already are in existence at the time of adoption.”

Immigration status irrelevant to comp benefits – Pennsylvania

In Bryn Mawr Landscaping Co. v. WCAB (Cruz-Tenorio), a worker was injured when he was struck in the head by a large branch. A neurologist diagnosed him with post-concussive syndrome and other issues and he received treatment from an orthopedic surgeon. Both submitted disability notes to the company. The claims adjuster acknowledged that he had a valid work visa.

The company issued a notice of temporary compensation payable for medical benefits only and began an investigation. Their neurologist and an orthopedic surgeon found that the issues had been resolved.

The employee filed a workers’ compensation claim, and a penalty petition, asserting that Bryn Mawr had violated the law by failing to issue a notice of compensation payable, had not paid him indemnity benefits, and interfered with his ability to obtain medical treatment. In turn,the company filed a termination petition alleging the employee was fully recovered and a suspension petition requesting a change in status from totally disabled to partially disabled because he could not lawfully work.

The case made its way to the Commonwealth Court that found the injured employee was not an undocumented worker nor was his loss of earning power caused by his immigration status instead of work injuries. Further, a judge had determined that the company’s medical experts lacked credibility and the court was bound by that decision. The injured worker was awarded benefits and attorney fees.

High court reverses trial court dismissal of mold exposure claim – Tennessee

In Williams v. SWS LLC, an employee began experiencing respiratory issues when her company moved to a new building. She missed time from work when she had two surgeries in January and July 2011, which included removing a portion of her lingual tonsil and later received a note from her doctor that said she had “clinical evidence of toxic mold exposure” in September 2011. She quit her job in April 2012.

Later she filed a workers’ compensation complaint alleging she had suffered injuries because of her workplace exposure to mold. The case revolved around whether this was a gradually occurring injury or occupational disease and whether the claim had been timely filed. Under the law, the worker has to provide her employer with notice of claim and a request for a benefit review conference within one year of injury. The company argued that since she had lost time from work for surgery to treat her allegedly compensable injuries, her last day worked before her surgery constitutes the date of injury. But the employee argued that the last day was the day she quit.

The Supreme Court’s Special Workers’ Compensation Appeals Panel revived the claim finding there was a triable question as to whether it ought to be barred by the statute of limitations and whether this was a gradually occurring injury or occupational disease.

24/7 home health care not warranted – Virginia

In Dawson v. County of Henrico, a man who became disabled with a brain injury in a work-related vehicle accident failed to convince the Court of Appeals that he required 24-hour a day, seven days a week home health care provided by his fiancée or at her direction. His treating psychiatrist said he suffered from depression, fatigue, headaches, memory impairment, aggression, difficulty regulating emotions and cognitive difficulties and that he failed to “understand what he needs to do to take care of himself.” He recommended the home health care, but later noted he probably did not need care “every hour.”

An appellate court supported the commission’s conclusion that 24-hour home health care was not medically necessary, and affirmed the denial of the care.

Appellate court overturns Commission and denies care by spouse – Virginia

In Cumberland Hosp. & Ace Am. Ins. Co. v. Ross, a registered nurse sustained severe injuries, including traumatic brain injury and was awarded several benefits, including 24-hour home health care, which was provided through an agency. After a little over a year, the nurse filed a claim with the Commission requesting that the home health care be provided by her spouse. The agency hired the spouse, but fired him after three weeks for not properly providing activity notes.

The Commission found that the medical care was necessary and, therefore, did not apply the four requirements set forth in Warren Trucking Co. v. Chandler for care by a spouse. An appellate court said the issue here was not only if home health care was medically necessary, but rather whether the services provided by the spouse constituted such care; therefore, it was necessary to analyze the four requirements of Chandler. Specifically, did the services performed by this spouse in attending to the needs of the disabled nurse qualify as ‘other necessary medical attention’ within the meaning of Code § 65.2-603.

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Legal Corner

ADA

Inflexible maximum leave policy leads to $550,000 settlement

Delaware-based Connections CSP provides services in correctional and other state facilities. The EEOC determined the company fired people with disabilities who needed additional unpaid leave beyond the required 12 weeks under the Family and Medical Leave Act and did not provide other requested reasonable accommodations. The company agreed to pay $550,000 in monetary relief to five former employees and to implement and disseminate a new, reasonable accommodation policy to all employees, among other provisions.

Workers’ Compensation

Injured employee not entitled to TDI for wage loss to go to medical appointments – California

Originally an unpublished decision, Skelton v. WCAB, involved an employee who suffered on-the-job injuries in 2012 and 2014. She continued to work full-time, but took time off to go to medical appointments, using sick and vacation leave. When her leave was exhausted, she lost wages for the time away from work and sought temporary disability indemnity (TDI) benefits to reimburse her wage loss.

The decision of a WCJ that she was not entitled to benefits was upheld by the Workers’ Compensation Appeals Board and the 6th District Court of Appeals. The court reasoned that once she had returned to work full-time, her wage loss was not a result of an incapacity to work, but rather a scheduling and leave policy issue.

Saturdays not counted as a working day in UR decisions – California

In Puni Pa’u v. Department of Forestry the Workers’ Compensation Appeals Board ruled that Saturdays don’t count as working days when determining whether a utilization review decision was timely.

Workers’ comp, not CGL, must cover injury – Florida

In Endurance American Specialty Insurance Co. v. United Construction Engineering Inc., Carlos Marroquin Lopez, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court’s decision that a commercial general liability (CGL) insurance policy did not cover injuries sustained by a worker in the course of his job but, rather, that the worker’s injuries fell under Florida’s workers’ compensation law. The general commercial liability policy issued to Weston-based United Construction Engineering Inc. had two exclusions, one that specifically excluded injuries that would be covered by a workers’ compensation claim and a second that excluded bodily injuries of workers injured in the course of their employment.

United Construction hired a subcontractor for a roofing repair project and neither carried workers’ comp insurance when a temporary employee slipped and fell into a pool of hot tar on the job site. The employee sued United, arguing that the use of the word employee in the policy created an ambiguity such that the employee exclusion does not apply. The court, however, noted this argument did not address the workers’ compensation exclusion that independently nixed the claim.

Teacher receives benefits for injuries incurred performing tasks not in job description – Massachusetts

In Boston Retirement Board v. Contributory Retirement Appeal Board, an Appeals Court affirmed a Superior Court ruling granting accidental disability retirement benefits to a teacher. In Fall 2009, she incurred injuries from lifting and carrying a computer to her classroom, moving tables, and breaking up an altercation among several students. The Boston Retirement Board argued the tasks she was performing were not part of her job duties and did not occur during working hours, therefore, they were not compensable.

The court disagreed. It noted even though the specific activities were not mentioned in the job description, teachers were required to maintain a classroom that was attractive and assume general responsibility for the welfare of the students. Moreover, although the incidents occurred before school hours or at lunch, she was engaging in the performance of her duties. Thus, her disability was “the natural and proximate result” of personal injuries sustained in the course of her job duties.

Reimbursement for overpayment possible without showing fraud – Michigan

In Fisher v. Kalamazoo Reg’l Psychiatric Hosp, the employer overpaid benefits for approximately three months following an injury of a worker and applied for reimbursement. The Compensation Appellate Commission has repeatedly held that when an employer has voluntarily but mistakenly overpaid, it had to show fraud on the part of the injured employee. The court of appeals, however, said the commission exceeded its statutory authority in setting a fraud requirement. The legislature had promulgated the right of reimbursement for overpayment of workers’ compensation benefits, allowing recovery of the overpayment made within one year of the recoupment action and that should govern. Thus, the Court reversed the denial of an employer’s petition for reimbursement.

Disability benefits for PTSD and wife’s nursing services for truck driver upheld – Missouri

In Reynolds v. Wilcox Truck Line Inc., an appellate court affirmed a Labor and Industrial Relations Commission decision that awarded worker’s compensation benefits to a truck driver whose tractor-trailer overturned and caught fire on the side of a freeway. While he escaped with no physical injuries and briefly returned to work, he later was diagnosed with post-traumatic stress disorder (PTSD) and was rated as permanently and totally disabled. His request for nursing services was denied and his wife left her job to provide daily home care.

The Commission overturned an ALJ denial of nursing services. While the employer argued that the employee was capable of other types of employment, the appellate court noted that a worker does not need to be “completely inert or inactive” to qualify as permanently and total disabled, and found that the employer failed to consider a vocational rehabilitation report finding the employee “totally vocationally disabled from employment.”

Noting that the law allows for compensation for nursing services, there is no statutory definition of nursing, and the phrase “nursing” puts the focus on the type of service rendered, not the person providing it, the Court found the wife’s services compensable.

$1.1 million settlement for tree trimmer from Mexico – Missouri

The $1.1 million settlement was reached fourteen years after a tree trimmer from Mexico, who was working on an agricultural visa, was paralyzed in a fall just three weeks after beginning work. He returned to Mexico and received $200 a week in temporary disability payments for a total of almost $150,000, plus medical expenses of over $2.3 million. The settlement provides $1.1 million, including an immediate payment of $500,000, plus $3,400 monthly for 15 years.

“Attachment to Labor Market” amendment not always retroactive – New York

In 2017, the statute was amended to relieve some workers classified as permanently partially disabled of having to demonstrate an ongoing attachment to the labor market to continue receiving wage replacement benefits. In Matter of Pryer v. Incorporated Village of Hempstead, a worker injured his back in 2012, was classified as having a permanent partial disability and an 85% loss of wage-earning capacity and did not return to work. The Workers’ Compensation Board (WCB) discontinued benefits in August 2014, finding he was not sufficiently attached to the labor market.

After the amendment passed, he filed a request for further action and a WCLJ determined the amendment applied and awarded benefits. However, the WCB and an appellate court overturned, noting that where the Board specifically determined, prior to the effective date of the amendment, that the worker failed to demonstrate continued attachment to and had voluntarily withdrawn from the labor market, the amendment did not apply.

Police officer suicide not compensable for survivor benefits – New York

In Matter of Delacruz v. Incorporated Village of Freeport, an Appellate Division of the Supreme Court ruled the family of a police officer who took her own life are not eligible for survivor benefits because it remains unproven that the officer’s suicide was related to a mental injury caused by work. While a WCLJ approved benefits, the decision was reversed by the WCB and upheld by the court. Although the suicide occurred while she was on duty, the court noted that other factors, such as marital counseling and stress and depression during the holiday season, may have contributed to her suicide.

Perception theory not valid in retaliatory discharge suit related to workers’ compensation – Pennsylvania

In Bamat v. Glenn O. Hawbaker, Inc., a federal district court construing Pennsylvania law, noted that the “perception theory” had been recognized in retaliation claims alleged under the ADA, the Age Discrimination in Employment Act (ADEA), and the Pennsylvania Human Relations Act (PHRA). However, the theory is insufficient for a retaliatory discharge case based on a workers’ comp claim. It is not enough for a discharged worker to show that the former employer believed the worker was going to seek workers’ compensation; the employee must either have filed a claim for benefits or expressed his intent to do so.

Sixth Circuit overturns ruling that federal immigration law preempted state law on retaliatory discharge – Tennessee

In Torres v. Precision Industries, the Sixth Circuit Court of Appeals reversed a decision of the U.S. District Court that the retaliatory discharge provision of the state’s Workers’ Compensation Act was preempted by the Immigration Reform and Control Act of 1986 (“IRCA”). According to the Appeals Court, it is necessary to first determine if state law had been violated in the first place. The case was vacated and remanded.

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Legal Corner

ADA

Employer can require reassessment of restrictions

In Booth v. Nissan North America Inc., the 6th US Circuit Court of Appeals found that Nissan did not violate the ADA when it required an employee on its assembly line to have a doctor review his restrictions to determine if they could be adjusted to allow him to perform more tasks. The company had accommodated the job restrictions for some time and then restructured the assembly line to include more tasks. When the employee claimed this would violate his job restrictions, the company asked him to get a new assessment and the doctor cleared him to perform the tasks. An employee under a work restriction does not have an automatic right to a preferred position or to prevent having the restriction re-evaluated from time to time, based on the legitimate business needs of the employer.

FMLA

Employer can ask employee to explain misconduct while on FMLA leave

While employers can’t make an employee on FMLA leave do work or participate in on-call activities, the 3rd Circuit Court held that they can insist upon a prompt response to allegations of misconduct, including serious breaches of policy as in Reagan v. Centre LifeLink Emergency Medical Services Inc. Prior to her leave, the employee had started her own business that competed with LifeLink. When the company found out, they required her to sign a non-compete agreement to continue employment. While the employee was on FMLA leave for a non-work-related injury, her supervisor discovered several breaches of the non-compete agreement.

The general counsel sent a letter to the employee requesting explanations within 10 days for the apparent violations. The employee responded by email one day after the due date and did not address the concerns, but said she was seeking legal counsel. The company immediately fired her and she sued in federal court, claiming that LifeLink interfered with her rights under the FMLA. LifeLink filed a motion for summary judgment seeking dismissal of the claim, which the district court granted.

Workers’ Compensation

Injured worker receives $630,000 in damages on disability and retaliation claim – California

In an unpublished decision, Abarca v. Citizens of Humanity LLC, the 2nd DCA upheld an award of $630,000 in damages to an injured worker on his disability discrimination and retaliation claim. When he experienced pain, he was referred to HR, but was not advised to fill out a claim form. When a doctor imposed restrictions, he was fired. He sued asserting retaliation, disability discrimination, wrongful termination, and other violations of the Fair Employment and Housing Act. A second doctor diagnosed him with degenerative disk disease, insomnia, anxiety, and depression and opined he was temporarily totally disabled.

Question of Social Security eligibility nixes PTD for injured worker – Florida

In SBCR Inc. v. Dos, an appellate court overturned an award of PTD for an injured worker when he turned 62. A JCC had awarded the benefits believing the employee did not meet the requirements for Social Security disability to have at least 40 quarters of coverage by age 62. The worker stated his injury prevented him from working enough, but provided no documentation of his denial. Therefore, the court found there was not enough evidence to support the JCC’s award.

Widow denied death benefits for husband’s auto accident – Massachusetts

In Yang’s Case, an appellate court upheld earlier rulings that a business owner’s death in an auto accident was not work related. The case demonstrates the complexity of intertwined businesses as the deceased owned a business in Massachusetts, which had comp coverage and one in New Hampshire that did not. Despite being a separate company in a separate state with no connection other than ownership, the company’s finances were entwined.

When the NH company failed, he closed it. He was traveling to NH to meet with a prospective buyer of the property when the accident occurred. The court agreed with earlier rulings that he was traveling to serve his personal interests.

State supreme court overturns benefits for Ex-NFL player with head trauma – Minnesota

In Noga v. Minnesota Vikings Football Club, a former defensive linesman for the Minnesota Vikings, was denied compensation for dementia arising from head trauma because the statute of limitations had passed. The ruling reversed an award of total permanent disability benefits. He stopped playing football in 1994 and was awarded comp for orthopedic injuries in 2004. At the time, the doctor identified neurological issues, including blackouts and headaches, which could be attributed to injuries incurred while playing for the Vikings.

He became legally blind and was diagnosed with dementia in 2011 and filed a comp claim for the head injuries in 2015. The six-year statute of limitations had passed since both Noga and the Vikings knew of the issue in 2004, but Noga argued the team waived the statute of limitations because they acknowledged he had a neurological health issue when they treated him while playing. The supreme court disagreed.

Court of appeals revives teacher’s case for benefits for fall injuries – Missouri

In Maral Annayeva v SAB of the TSD of the City of St. Louis, an ALJ and the Labor and Industrial Relations Commission denied benefits for a teacher who fell after entering the building. The denial was based on the employee’s credibility and medical opinions based on subjective descriptions, as well as the questioning of her attorney. Although she initially described the floor as “normal,” upon questioning by her attorney she mentioned dirt, ice, dust and moisture.

The court of appeals reversed and remanded the commission’s decision, finding there was no conflicting evidence or testimony to dispute the employee’s statements about the condition of the floor. The court ruled the employee’s injury did arise out of her employment because she was required to walk the hall each day to clock in, thus, she was exposed to the inherent condition of the employer’s workplace.

Lack of English skills not sufficient reason to excuse compliance with the notice statute – New York

In Matter of Nukicic v. McLane Northeast, an appellate court found that the Workers’ Compensation Board (WCB) acted within its statutory powers when it found that a worker failed to provide the employer with the required notice of injury. The truck driver, who was not proficient in English, told two supervisors that he had pain in his knee and that a physician placed him “off work” for a short period. However, he never connected the pain to his work.

Heart attack after dealing with difficult customers did not arise out of an in course of employment – New York

In Issayou v Issayuou Inc, the owner of a hair salon sustained a heart attack minutes after dealing with difficult customers. The WCB found the employer’s medical expert, who concluded the condition was advanced, triple vessel, obstructive coronary artery disease, most credible. The appellate court agreed and also noted that the level of stress faced by the salon owner was no greater than that experienced by other similar workers.

Paralysis from car accident not compensable – North Carolina

In Bache v. Tic-Gulf Coast, the Court of Appeals affirmed an Industrial Commission’s finding that a traveling worker was not in the course and scope of his employment when he was in a car accident that took place after he had dinner and a beer. The employee, who lived in Florida, worked for a company that had been contracted to perform construction at a power plant in Wayne County. He received an hourly rate and a per diem rate to cover duplicate living expenses.

While driving home from a restaurant after work, he was in a single car accident that left him paralyzed from the waist down. He had a blood alcohol level of 0.10. He filed for comp benefits, arguing he was a traveling employee and that state law provides that “employees whose work requires travel away from the employer’s premises are within the course of their employment continuously during such travel.”

However, an appellate court upheld earlier rulings denying benefits. He was living locally and his job was conditional on his moving to North Carolina for the two-year project. It was unlike a business trip and the travel was entirely personal.

Rare comp and tort claim net settlement of over $9 million – North Carolina

A temp employee who was assigned to work for a manufacturer as a janitor suffered severe burns over most of his body in an explosion. Initially, the temp agency was identified as the employer, but when an issue of negligence was raised, the plant argued that the worker was a joint employee of the factory and of the temp agency and it was protected by the exclusive remedy of workers’ comp.

However, the contract between the plant and the temp agency clearly stated that the temp agency was to be considered the employer. Therefore, the tort claim against the plant could proceed. Mediation and reports from expert witnesses showed the factory had violated its own safety policies and was vulnerable to a negligence claim and heavy damages. The tort claim was settled for $8 million and the workers’ comp carrier agreed to waive the subrogation lien and pay a settlement of $1.25 million.

The terms of the settlement require that the names of the factory, its insurer and the worker be kept confidential.

Bank teller’s carpal tunnel not compensable – Pennsylvania

In Elsa Olivo v. Workers’ Compensation Appeal Board et. al., the Commonwealth Court affirmed the ruling of an WCJ and the WCAB that a bank teller failed to prove that her work caused her carpal tunnel. She had worked as a teller for eight years and spent about 25% of the time counting money and sought total disability after being diagnosed with carpal tunnel syndrome in both wrists.

Two examining doctors opined that she was able to return to work with no restrictions and an IME found that she exaggerated her symptoms. One of the doctors noted “for something to be deemed work-related carpal tunnel it would have to be something that involves a high force, (high) torque vibration situation…bank teller not being one of them.”

Violation of restraint policy does not nix benefits – Tennessee

While a residential treatment facility argued an employee violated its policies, the Supreme Court’s Special Workers’ Compensation Appeals Board ruled he was entitled to benefits for an injury he sustained while trying to restrain a patient because he did not willfully violate the policy. Further, it was noted the facility failed to show they engaged in a serious enforcement of the policy.

In Tennessee Clinical School v. Johns, a relatively new employee was asked to stay beyond his shift and get a group of teenage boys up for breakfast. One boy resisted, and when a scuffle occurred, the employee attempted to restrain the boy and seriously injured his shoulder. The court found the restraint policy was not a “hard and fast rule” and permitted restraining actions if a resident posed a threat.

Psychological injuries from assault compensable – Tennessee

In Natchez Trace Youth Academy v. Tidwell, the Supreme Court affirmed a trial court’s disability finding and monetary award to an employee, who was injured by a youth living at the residential treatment facility where he worked. His facial injuries required plastic surgery. Following a week’s time off, he returned to light duty with the stipulation he would not have to interact with the residents.

However, when staff did not arrive to replace him he was required to wake up the children. He began to experience anxiety and depression. Although he was released for full duty work without restrictions, it was unclear if this was just for his physical injuries. He did not contact the Academy and they considered him to have abandoned his position.

A trial court ruled he suffered an injury and developed depression and PTSD as a result of the incident and required a psychiatric evaluation before returning to work. The court awarded him nearly $100,000 in disability as well as additional unpaid temporary total disability benefits.

Two-cause rule does not apply to cases involving dissimilar disabilities – Virginia

In Virginia,when a work-related disability combines with a nonwork-related disability to prevent the employee from working, the entire total disability is the responsibility of the employer under the “two-cause” rule. In Carrington v. Aquatic Co., a long-term employee suffered from preexisting kidney disease that did not affect his ability to work. In a work-related accident, he injured his arm and received comp benefits. He was cleared to return to light duty, which he did.

Shortly thereafter, his kidney condition deteriorated such that he was unable to work and filed for TD benefits, arguing the two-cause rule should apply. He died during the appeals process which led to the state Supreme Court. It upheld lower rulings that the sole cause of his total disability, was his kidney failure that was unrelated to his employment. The key question was which injury kept him from working at all – thus rendering him totally disabled. Further, the compensable arm injury did not contribute to his kidney deterioration.

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Legal Corner

ADA 

Employee unable to wear safety shoes can be terminated

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

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

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

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

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

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

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

Workers’ Compensation 

No liability for Six Flags in workers’ electrocution – California

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

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

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

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

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

Tort suit against subcontractor can proceed – Florida

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

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

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

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

Supreme Court provides guidance on PTSD provisions – Minnesota

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

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

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

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

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

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

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

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

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

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

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

Failure to complete application sufficient for denial – New York

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

Heart injury hours after accident compensable – North Carolina

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

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

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

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

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

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

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

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

Continuing denial of opioids affirmed – Pennsylvania

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

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

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

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

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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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