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Originally an unpublished decision, Skelton v. WCAB, involved an employee who suffered on-the-job injuries in 2012 and 2014.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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Legal Corner

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

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

FMLA 
Employee must turn over social media posts

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

Workers’ Compensation 
NLRB: independent contractor test overturned

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disability commences on the work day following the injury – Pennsylvania

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

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

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

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

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

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

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

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

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

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

Falling asleep at the wheel nixes benefits – Virginia

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

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

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

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Legal Corner

ADA
Bank pays $700,000 for inflexible disability policy

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

Disability discrimination case of health worker who refused vaccine dismissed

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

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

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

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

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

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

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

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

Injured worker cannot sue third party – Illinois

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

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

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

Temporary staffing employee cannot sue assembly plant – Indiana

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

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

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

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

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

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

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

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

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

Additional compensation awards subject to durational limits – New York

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Patient’s ulcer not attributable to pain medications – Tennessee

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

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

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

Seven emerging risks and trends to watch

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Legal Corner

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

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

FMLA
Retaliation claim by fired auditor can go to trial

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

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

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

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

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

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

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

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

PTD granted to worker unable to find work – Mississippi

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

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

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

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

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

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

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

Special employer liable for half of comp benefits – New York

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employer must protect workers’ family from asbestos exposure – Virginia

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

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

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

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

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

HR Tip: New FMLA forms available from DOL

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

Notices

Certification forms

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

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

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

Legal Corner

ADA
Failure to accommodate is costly for employers

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

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

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

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

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

Workers’ Compensation
Injured worker cannot sue utilization reviewer – California

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

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

Safety consultant owes duty of care – California

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

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

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

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

Decision not to use handrail nixes comp claim – Minnesota

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

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

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

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

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

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

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

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

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

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

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

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

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

Parking lot injury compensable – Pennsylvania

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

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

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

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

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

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

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

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

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

Benefits for volunteer firefighter overturned – Pennsylvania

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

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

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

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

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

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