Communication

ADA
Lawsuit over lifting restrictions reinstated

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jimmy John’s not a joint employer – Illinois

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

Misclassification statute does not apply when employee sues employer – Michigan

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

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

Squabbling employers must pay attorney fees – Minnesota

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

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

Auto insurer must pay work-related chiropractic treatment – Minnesota

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

Overtime must be included in calculation of AWW – Mississippi

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

Knee injury aggravated at home compensable – Mississippi

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hearing loss compensable despite long filing delay – Tennessee

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

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

Hearing loss work related – Wisconsin

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

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