Legal Corner

ADA
Ability to delegate does not remove essential functions of job

In Tonyan v. Dunham’s Athleisure Corp., a store manager injured her shoulder and was fired when she could no longer perform some of the essential functions of her job, including lifting and reaching. She argued that such tasks only took up about 30% of the workday and could be delegated. However, the Seventh Circuit court disagreed, noting that the essential functions of the job were clearly and specifically defined in the job description and the ability to delegate was always available, but it does not mean it is appropriate to do so.

Failed case of fired worker suffering from Tourette’s syndrome reinstated

The 1st U.S. Circuit Court of Appeals in Boston in Brian Bell v. O’Reilly Auto Enterprises LLC, d/b/a/ O’Reilly Auto Parts, reinstated litigation filed by a fired auto parts store manager who suffers from Tourette’s syndrome, citing incorrect instructions given by the judge to the jury. The judge’s instructions in the case “required an employee to demonstrate that he could not perform the essential functions of his job without accommodation,” and may have favored the employer. The correct standard to prove a failure to accommodate claim is an employee must show that he is handicapped within the ADA’s meaning, he can perform the job’s essential functions with or without reasonable accommodation, and the employer knew of the disability but declined to reasonably accommodate it upon request.

Workers’ Compensation
Uber and Lyft get reprieve from appeals court – California

In early August, a lower court ordered Uber Technologies Inc. and Lyft Inc. to treat their drivers as employees. The companies successfully sought the intervention of the First District Court of Appeal in San Francisco to block the injunction order, giving them a reprieve at least for a few months. There is a ballot initiative in November that will let the app-based companies continue to treat drivers as independent contractors, thus making them exempt from state laws mandating overtime, sick leave, and expense reimbursement, but providing “alternative benefits.”

$11.25M workers’ comp settlement – California

A 35-year-old construction worker received what could be a record-breaking workers’ comp settlement of $11.25M. He suffered a traumatic brain injury and related complications when he fell four stories through an elevator shaft at a construction site in Irvine.

Workers’ Comp is the exclusive remedy for couple severely injured while assisting law enforcement officials – California

In Gund v. County of Trinity, a middle-aged couple was asked by the Sheriff’s office, which was nearly 100 miles away, to check on a woman who lived nearby in the remote area and had called 911. The reason for the call was unknown and it was suggested it could be related to an oncoming storm, although attempts to call back the woman failed.

When they arrived, they were attacked by a man who had killed the woman and her boyfriend and sustained serious injuries. In a 5-2 decision, the Supreme Court affirmed a trial court ruling that workers’ comp was their exclusive remedy since they were engaged in law enforcement activities at the time. California laws treat members of the public who engage in “active law enforcement service” at a peace officer’s request as eligible for workers’ compensation benefits.

McDonald’s sues insurer for coverage while fighting employee class action suit over unsafe working practices during COVID-19 – Illinois

In McDonald’s Corp. v. Austin Mut. Ins. Co., McDonald’s Corp. is suing its insurer for coverage of its legal fees while defending an employee class-action suit, which seeks to force the company to adopt certain safety measures, including requiring face coverings and offering hand sanitizer, during the pandemic.

The Chicago-based fast food chain and two of its franchise owners filed the action against Austin Mutual Insurance Co. in federal court, seeking a judgment that the insurer has a contractual obligation to defend them in the worker safety litigation. According to the complaint, McDonald’s has already incurred more than $1.5 million in attorney’s fees, costs, and expenses and the franchise owners have incurred about $116,000.

Certified mail not required for policy cancellation – Massachusetts

In Espinal’s Case, Nos. 19-P-1483 and 19-P-1484, the Massachusetts Appeals Board overturned a ruling that an insurance carrier had not canceled an assigned risk policy because it was sent by first-class mail, not certified mail. Cruz Abatement & Contracting Services LLC workers’ comp coverage was canceled because of non-payment and it received an assigned risk workers’ compensation policy from ACE American Insurance Co. After issuance and cancellation for nonpayment of two policies by ACE, the company was again assigned to ACE for Feb. 26, 2016, until Feb. 26, 2017, and again did not pay the invoice.

ACE sent a notice of cancellation to the address on the application by first class mail and received a certificate of mailing receipt from the PO. Cruz was hired to be a subcontractor on a demolition job and two workers were injured. Massachusetts General Law Section 187C governs insurance cancellations and authorizes notice by first class mail without requiring proof of receipt of notice by the insured. Section 65B, which governs the cancellation of assigned risk policies, has an additional provision that the employers have an opportunity to file objections with the Department of Industrial Accidents within 10 days after receipt of notice of cancellation. A judge and the Industrial Accident Reviewing Board interpreted this to mean it must be sent by certified mail return receipt requested, but the Appeals Board overturned, noting the statute did not include this requirement.

Employer not solely liable for PTD benefits – Missouri

In Williams v. City of Jennings, a correctional officer was attacked by an inmate and was awarded permanent total disability (PTD) based on her depression and anxiety arising from the work injuries. At the hearing, she and medical experts acknowledged that she had a pre-existing condition of panic and anxiety attacks.

The Court of Appeals noted that the decision should have addressed the fact that the pre-existing psychological conditions were partly responsible for the way she responded to the work injury and, therefore, contributed to her permanent total disability. The Second Injury Fund compensates workers who are permanently and totally disabled by a combination of a work injury with a pre-existing disability and the employer should not have been held solely responsible for her benefits.

Appellate court refuses to hear controversial case on benefits to worker who died of natural causes – New York

An appellate court refused to hear an appeal in Kanye Green v. Dutchess County Board of Cooperative Education Services. The decision by the Workers’ Compensation Board was controversial because it not only reversed precedent about continuing benefits to the family of an injured worker who died of natural causes but also did not direct that benefits be paid when the decision was appealed. The worker died of a heart problem with less than a year remaining on his weekly benefits, which his son sought.

A previous court decision found that nonschedule loss of wage-earning capacity claims was not the same as schedule losses and wage-replacement benefits should not continue because a dead worker has no wage-earning capacity. It’s unknown if the employer will appeal.

Comp carrier can’t recover benefits from widow who sued – North Carolina

In Walker v. K&W Cafeterias, a worker suffered fatal injuries in a work-related auto accident and his widow was awarded medical and death benefits of over $333,000. The worker was employed by a North Carolina company and was driving a company car, but the accident occurred in South Carolina. Later, the widow filed a wrongful death case in South Carolina seeking damages from the driver of the motor vehicle who was at fault in the accident and was awarded $962,500 in a settlement.

The comp insurer filed a subrogation lien, which was approved by the Workers’ Compensation Commission and the Court of Appeals but overturned by the Supreme Court. The court found that while the commercial policy was purchased in North Carolina, it included an endorsement to conform with South Carolina insurance laws since the car was registered, garaged, and driven in South Carolina. South Carolina insurance law bars subrogation of UIM proceeds.

Non-OSHA compliant tractor seat insufficient for wrongful death suit – North Carolina

A court of appeals found that buying a non-OSHA compliant tractor seat without a seatbelt from eBay didn’t rise to the level of intentional misconduct and, therefore, the estate could not sue the company under tort law. In Hidalgo v. Erosion Control Services Inc., the worker was ejected from a tractor on a construction site and fatally injured when it rolled on top of him.

The estate alleged that the company was negligent – the seat on the tractor was replaced with one purchased on eBay that didn’t have a seatbelt because the manufacturer was unable to supply one. Furthermore, OSHA cited the company for four workplace safety violations related to the seatbelt and safety measures for the tractor. However, the company argued that the worker was operating the tractor outside of the designated project area where no work was going on.

While a trial court found for the estate, the appeals court found the seat created an unsafe condition but it did not make it substantially certain that death or serious injury would occur. In overturning the decision, the court noted there was no pattern of OSHA violations regarding tractor safety, there was no work going on in the area it occurred, and the seat had been used for more than a year without incident.

Court clarifies total disability benefits reinstatement post-Protz – Pennsylvania

In White vs. WCAB, the Commonwealth Court ruled that an injured worker is entitled to reinstatement of her total disability benefits retroactive to the date she filed her petition, not the date upon which her benefits were modified. Based on the Commonwealth Court’s decision in Protz v. WCAB, the injured worker filed a reinstatement petition seeking to nullify her IRE which had changed her condition from totally to partially disabled.

A WCJ approved the petition and the Appeal Board modified the ruling, noting the reinstatement was effective on the date she filed her reinstatement petition in October 2015, not the date of the change in her disability status. The Commonwealth Court agreed.

Truck driver was not statutory employee and can proceed with tort – Pennsylvania

In Dobransky v. EQT Production Co., a truck driver delivered a load of barite, which is a weighting agent to increase the density of industrial fluids, to a well site when a cap of a storage tank blew off and released barite into his face. He filed suit against EQT Production Co. and Halliburton Energy Services Inc. that owned or maintained the tanks. The companies sought summary judgment, citing workers comp’s exclusive remedy.

A trial judge agreed, but the Superior Court vacated the decision, noting a contractor can be deemed the statutory employer of a subcontractor’s employee only if the requirements of Section 302(a)(2) of the Workers’ Compensation Act are met. The contracted work must include removal, excavation, or drilling for minerals. In this case, the contract was to transport and unload materials.

Comp denied for Pittsburgh prosecutors who contracted COVID-19 – Pennsylvania

Two prosecutors who believe they contracted COVID-19 at the Allegheny County Courthouse where a court reporter tested positive, have had their claims denied. Both prosecutors spent time in the hospital and one died. The deceased prosecutor believed he contracted the virus from his colleague with whom he shared a small office and had filed a complaint with OSHA over how the notification of cases at the courthouse was being managed. The claims were denied because they were not a work-related injury. An appeal is expected.

Meaningful return to work must exist for cap on PPD Benefits – Tennessee

In Coates v. Tyson Foods, a supervisor who also performed physical work developed tennis elbow in both elbows and needed surgery. Following surgery, he took FMLA leave, which was extended, but he was unable to return to work when it ended. The company filled his position and told him when he could return without restrictions he’d have to start at the bottom again.

He left and found work as a farmhand and filed for comp benefits, and then sued. A trial court determined that because the supervisor didn’t have a meaningful return to work, he was owed temporary total disability and PPD benefits and his benefits were not subject to a statutory 1.5 multiplier cap. The Supreme Court agreed noting that the company didn’t make a reasonable effort to return the supervisor to his job.

Disagreement with IME physician’s opinion not sufficient to rebut presumption of correctness – Tennessee

In Rodgers v. Rent-A-Center East, Inc., an employee was injured when he was rear-ended in an automobile accident while running errands for the store manager. After he received treatment for back pain, two doctors referred by the employer concurred that he had a 0% permanent impairment rating. He presented conflicting reports from his physicians who assigned a 7% impairment rating and the employer requested an independent medical evaluation from the Medical Impairment Registry.The IME physician assigned a 2% impairment rating.

A bench trial judge agreed with his personal physicians and assigned a permanent impairment of 7% with a multiplier of 3 because there was no meaningful return to work. However, the Supreme Court noted under state law, a MIR physician’s rating is presumed to be accurate and the employee did not meet high burden of proof to rebut the presumption of correctness.

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HR Tip: New EEOC guidance related to COVID-19 and family members

In recentĀ guidance (Question D.13), the EEOC said that the Americans with Disabilities Act (ADA) does not require employers to accommodate workers who want to avoid exposing family members who are at higher risk of severe illness from COVID-19.

“The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.”

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