Legal Corner

ADA
EEOC settles first direct challenge to employer wellness program

The EEOC’s first lawsuit directly challenging an employer’s wellness program-filed in 2014- was against Orion Energy Systems. The company had switched to a self-insured plan and, to save costs, initiated a wellness plan that revolved around three incentives: the employee did not smoke, would exercise 16 times a month, and have a health risk assessment (HRA). There were surcharges for non-compliance, including paying the entire monthly premium if they did not have a HRA, which was $413.43 for single, $744.16 for limited family, and $1,130.83 for family coverage.

One employee raised concerns about the wellness initiative and HRA, questioning confidentiality and how the premium was calculated believing it excessive in light of the service fee Orion paid its third-party administrator (she knew the amount because she paid invoices). She opted out of the program and agreed to pay the premium. However, her supervisor and the HR director spoke to her about comments she made to coworkers about the premium, telling her such negativity was not welcome, and to keep her opinions to herself and eventually she was terminated.

While the court found that Orion’s wellness plan was lawful under the regulations at the time, there were issues of fact as to whether the employee was fired because of her opposition to the wellness plan. Under the consent decree settling the suit, Orion agreed to pay $100,000 to the employee and agreed that it won’t maintain any wellness program in the future that poses disability-related inquiries or seeks a medical examination that is not voluntary within the meaning of the ADA and its regulations as well as other provisions.

FMLA
Inadvisable email negates defense to FMLA retaliation claim

An employee at Wells Fargo received an informal and then a formal warning about underperformance and her failure to meet sales goals. One week prior to receiving the formal warning, she was diagnosed with myelopathy, scheduled for surgery, and received FMLA leave. When she returned to work on limited duty, her supervisor warned her that she was still near termination. After her return to full duty, her supervisor determined she had not made sufficient improvement and he documented the problems in an email to the HR department and recommended termination. In this email, he also noted, “Debby submits a request for a leave of absence.”

The employee sued for retaliatory discharge under the FMLA and the federal court found that the email comment about the request for a leave of absence as part of the email justifying discharge was direct evidence of unlawful retaliation. Although Wells Fargo could document the underperformance and warnings, the court concluded for summary judgment motions in cases involving direct evidence of discrimination, an employer’s legitimate, nondiscriminatory business reason for an adverse employment action is irrelevant.

Takeaway: Electronic communications have permanency. Be sure supervisors and managers understand the importance of their choice of words and know what should and should not be included in recommendations for termination.

Temporary work counts as a factor when determining FMLA eligibility

In Meky v. Jetson Specialty Mktg. Servs. Inc., a temporary employee was hired through a staffing agency for about six months and then was hired to work full-time. She requested FMLA, but was told she was not eligible and was terminated a few months later for leaving work early. She sued and one question the court had to decide was the start date of her employment. The 3rd U.S. Circuit Court of Appeals held that the correct date was the date on which she started working as a temporary employee, since the staffing agency and the Jetson were joint employers.

Workers’ Compensation
Finding of compensable injuries to knee and shoulder does not bar later additional claim related to back – California

In Iniguez v. WCAB (Blue Rose Concrete Contractors), a worker was compensated in 2012 for injuries to his knee and shoulder stemming from an accident in 2010. In November 2014, he filed another claim seeking additional benefits for injuries to the neck and back. The WCAB found that compensation should be limited to the knee and shoulder in accordance with the 2012 litigation, but the 2nd District Court of Appeals annulled the board’s decision by saying there was no finding that these were the only industrial injuries sustained and remanded the case for further proceedings.

Vacation and sick time not earned income when calculating impairment benefits – Florida

In Eckert v. Pinellas County Sheriff’s Office, the employer reduced the injured worker’s benefits by 50% for the 23 weeks he used his sick leave and vacation time, arguing that this was allowed as “earned income” under state law. However, the 1st District Court of Appeal said use of sick leave and vacation time could not count toward his average weekly pay for the 23 weeks in question, since sick leave and vacation time were not accrued during the weeks that he drew upon so it was not “earned income.”

“Heart attack waiting to happen” leads to denial of claim – Illinois

A firefighter described, as “a heart attack waiting to happen” should not receive benefits for a heart attack sustained while cleaning his firehouse parking spot of snow ruled an appellate court. The firefighter was a heavy smoker, obese, and had so many risk factors for a heart attack that the cardiac event could have occurred “anytime and anywhere,” said the arbitrator. Those risk factors were enough to overcome the statutory presumption that heart attacks suffered by firefighters are a compensable injury.

Fired for misconduct, employee can still collect benefits – Indiana

In Masterbrand Cabinets v. Waid, a worker who injured his back disagreed with his doctor and supervisor about his level of pain and work capacity. An incident with the supervisor escalated to an altercation. He was suspended and then terminated. He continued to see the doctor and the Workers’ Compensation Board found he was unable to perform work of the same kind he was performing when injured and that he was due TTD payments. The company appealed, arguing the worker was not entitled to TTD benefits because he was terminated for misconduct. However, the Court held that the inability to work was related to his injury and, therefore, he was entitled to benefits.

Statute of limitations not valid defense when injured employee was promised action – Mississippi

An employer and its carrier cannot argue the statute of limitations as a defense when the carrier had assured the injured employee that it would “take care of everything” and there was no need for her to hire an attorney. Moreover, the carrier had paid for medical expenses three days after the expiration. Dietz v. South Miss. Reg’l Ctr.

Long history of medical problems does not preclude PTD for shoulder injury – Missouri

In Maryville R-II School District v. Payton, a school groundskeeper with a history of ailments and multiple surgeries went to the emergency room when he started to have serious shoulder pain after assembling a soccer goal. An X-ray did not reveal any acute fracture or dislocation, and an emergency room doctor tentatively diagnosed him with osteoarthritis. He then saw the school district’s physician who opined that the activity was unlikely to be the prevailing cause of the pain. He then sought treatment from his own physician and an MRI revealed a rotator cuff tear. Surgery was performed but the rotator cuff tore again and he was unable to return to work because the school district could not accommodate his lifting restrictions.

A judge, the Labor and Industrial Relations Commission, and the Court of Appeals all concurred that the injury was permanent and totally disabling.

Tort suit for worker’s heat-related death revived – Missouri

In Channel v. Cintas Corp., a 52-year-old delivery driver died of heat stroke and his widow filed a wrongful death action against the supervisor and the company. She argued that the supervisor ignored the company’s heat safety protocols by placing her husband in a truck without air conditioning on a day when temperatures were over 100 degrees. While a circuit judge ruled that workers’ comp was the only remedy, the Court of Appeals ruled that the Labor and Industrial Relations Commission had not yet ruled on the workers’ comp case and it was improper for the judge to determine that the death was an accident. The suit was reinstated and placed on hold.

Symptoms of heart attack at work not sufficient for death benefits – New York

In the Matter of Bordonaro v Genesee County Sheriff’s Office, a deputy sheriff died at home in his sleep and his widow sought workers’ comp death benefits, contending his initial symptoms occurred at work. Noting the employee had completed his shift and had not sought medical treatment, the appellate court supported the Board’s finding that the death was not casually connected to work.

Benefits denied in two stress related cases – New York

In Matter of Novak v St. Luke’s Roosevelt Hosp., a New York appellate court affirmed a Board finding that a nurse’s work-related stress did not exceed what could be expected in her normal work environment. It was determined that her stress stemmed from her involvement in a disciplinary proceeding, wrongful termination, and subsequent reinstatement after a six-month suspension. She complained about her treatment by co-workers when she returned to work, eventually quit her job, and filed a comp claim asserting the events caused insomnia, depression, posttraumatic stress disorder, and a severe social phobia. The claim was disallowed and the appellate court noted claims for mental injuries based on work-related stress are precluded “if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion or termination taken in good faith by the employer.”

In Burke v. New York City Transit Authority, a subway train operator was denied a psyche claim for harassment from his supervisors. The employee wears glasses, has a sensitivity to light, and has tinted lenses he can flip down over his glasses. Train operators are prohibited from wearing sunglasses for safety reasons, and the employee was being monitored to ensure that he was not wearing his tinted lenses while operating a train. He claimed his supervisors harassed and intimidated him about the lenses, causing him to develop disabling anxiety and panic attacks. The courts determined that the stress created by the investigation was not greater than that which other similarly situated workers experienced in normal work and, therefore, it was not compensable.

Benefits granted for ‘reasonable effort’ for employment – North Carolina

For a worker to receive benefits in the state, it must be shown that the worker was not capable of earning the same money as before the injury due to the injury. In Snyder v. Goodyear Tire & Rubber Co., a tire builder suffered a back injury and returned to work with lifting restrictions. However, the employer was not able to accommodate the restrictions and sent him home. He filed for workers’ comp and the commission found that he met the burden for temporary total disability by proving he could not return to his pre-injury job and had made unsuccessful attempts to obtain employment.

While the company appealed, arguing that the employee had not made reasonable efforts for employment, the appeals court disagreed. The court did note that an employer’s failure to provide light duty work in and of itself is not proof that an injured employee made a reasonable but unsuccessful effort to find employment.

Decision in Heart and Lung claim not binding on workers’ comp – Pennsylvania

A prison guard trainee hurt his knee and filed for benefits under the Heart and Lung Act (H & L Act), which allows certain police officers and other public safety employees to collect full salary and medical benefits for temporary injuries. An arbitrator determined he was eligible for benefits. He later filed a claim for workers’ comp, but the judge found he was entitled to medical benefits, but not disability benefits because he failed to prove a loss of wages.

The guard appealed arguing his disability was established under the H & L Act, but the court noted the laws were quite different and the Workers’ Comp Act could provide significantly greater medical and indemnity benefits, including those for permanent impairment. Therefore, a decision by an arbitrator in an H & L claim filed by a corrections officer was not binding on the workers’ compensation judge. Merrell v. Workers’ Comp. Appeal Bd. Commonwealth Dep’t of Corr.

Non-payment of PT benefits leads to penalties in spite of billing dispute – Pennsylvania

An employee of Derry Township Supervisors received PT for a back and neck injury at a facility owned by The pt Group. The bills, however, came from the Physical Therapy Institute (PTI), which had a contractual arrangement with The pt Group. The Derry Township argued this arrangement was a way to charge higher fees.

As of Jan. 1, 1995, providers are able to bill comp carriers at 113% of the rate established by the Centers for Medicare & Medicaid Services fee schedule, but the Supervisors alleged that providers in business before that date can use a “cost-plus” formula that generally means a higher payment. The pt Group was subject to the 113% cap, but PTI was not.

The Commonwealth Court upheld lower court decisions that there was nothing illegal in this arrangement and ordered an award of $83,400 in attorney fees, and reimbursement of $3,328.32 for litigation costs.

Opioid overdose after injury not compensable – Tennessee

A carpenter was involved in an employment-related motor vehicle accident that caused fractures to the vertebrae in his neck and disc herniation in his lower back. He underwent surgery, but continued to have back pain and further surgeries were denied, as were epidural steroid injections. He was referred to a pain management clinic and restricted from returning to work.

He told the pain management specialist that he began taking extra opioid tablets and consumed alcohol because he felt the medications were no longer effective. Shortly after agreeing to a program to wean off the drugs, his wife found him unresponsive in bed. The medical examiner ruled his death an accident caused by acute oxycodone toxicity with contributory causes of hypertension and alcohol and tobacco use.

His wife filed with workers’ comp benefits and the case went through appeals and ultimately was heard by the state Supreme Court. In Judy Kilburn vs. Granite State Insurance Company, et al., the Supreme Court noted that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury and ruled his death not compensable because he failed to take his medications in compliance with physician’s orders.

Disagreement over diagnosis not sufficient to rebut correctness of impairment rating – Tennessee

In Williams v. Ajax Turner Co., an employee was assigned a 21.3% impairment rating from his doctor following surgery of his foot after a forklift accident. The employer requested a second opinion from an orthopedic surgeon who assigned a 5% impairment rating, and a third opinion through the medical impairment registry (MIR) program, which also resulted in a 5% rating. A trial judge accepted the treating doctor’s rating and applied a multiplier of 4.

The Supreme Court’s Special Workers’ Compensation Appeals Panel said an MIR physician’s rating is presumed to be accurate, unless this can be overcome by clear and convincing evidence giving rise to a “serious and substantial doubt” about the accuracy of the rating. A disagreement about the rating, however, is not clear and convincing evidence; therefore, the MIR rating should have been accepted. It also agreed to the multiplier of 4, given considerations of education, job skills, work history, and medical limitations so the award of permanent disability benefits had to be modified to 20%.

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Legal Corner

Workers’ Compensation
Worker has right to obtain medical report from doctor of his choice – California

In Davis v. WCAB (City of Modesto), Davis filed two workers’ compensation claims stating his prostate cancer developed because of his exposure to carcinogens while working as a firefighter. A qualified medical examiner (QME) issued opinions that the cancer was not work-related and Davis then hired a doctor to review the reports, which were sent to the QME for review. The city protested that this violated the discovery process and the Workers’ Compensation Appeal Board (WCAB) rescinded a judge’s order that had allowed the review.

Upon appeal, however, the WCAB filed a letter brief to the Court of Appeals, asking for review to be granted and for its decision to be vacated, since the decision had not addressed Labor Code Section 4605. Section 4605 says there is no limitation on the right of a worker to obtain a medical report, at his own expense, from the doctor of his choice. While the report cannot be “the sole basis of an award of compensation,” Section 4605 specifically allows a QME to address the report and respond to its contents.

Traveling worker denied benefits for fall in motel parking lot – Georgia

In Avrett Plumbing Co. v. Castillo, an hourly employee lived in Atlanta, but his job required him to work in Augusta. The company paid a weekly rate to provide him a hotel room and allowed him to use it on weekends at no cost. On a Sunday evening when returning from grocery shopping he tripped and fell in the parking lot, breaking his ankle. When he filed for workers’ comp, the company argued that the accident had not occurred during the course of employment, since it happened outside of normal work hours and the employee was engaged in activities unrelated to his job.

An administrative law judge disagreed and found the injury compensable under the “continuous employment” doctrine, because the employee was “required by his employment to live away from home while working.” The case went through several more appeals, and benefits were ultimately denied with the court finding the employee was there “merely as a personal convenience” (lack of money and transportation prevented travel to Atlanta) and that the errand was for the sole benefit of the employee.

Willful misconduct may bar comp benefits – Georgia

An employee who disobeys an employer’s instructions and acts in a dangerous fashion may not be entitled to workers’ compensation benefits, the Supreme Court ruled. Chandler Telecom v. Burdette revolved around the question of willful misconduct. A cellphone tower employee sustained serious injuries attempting a “controlled descent” from a tower, even though a supervisor ordered him not to attempt the descent and to climb down and the crew’s lead tower repeatedly protested his actions.

The Board of Workers’ Compensation concluded the employee could not receive comp benefits because he engaged in willful misconduct by defying his supervisor’s instructions, a decision that was affirmed by a Superior Court. However, the Court of Appeals reversed, saying his actions did not constitute willful misconduct because his actions were not of a “quasi criminal nature…”

The Supreme Court found that the appellate court erred in its ruling, noting the proper interpretation of a 1993 decision defining willful misconduct is “an intentional and deliberate action done either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.” The Supreme Court said it did not have enough information to make a determination about whether willful misconduct had occurred. It remanded the case to the Board of Workers’ Compensation for further fact-finding.

Worker killed by exploding shell can only claim comp – Illinois

An employee was killed by the explosion of a live mortar shell that had been transferred from the U.S. Army’s National Training Center at Fort Irwin, California to the Totall Metal Recycling’s (TMR) facility in Granite City. The lawsuit alleged the employer acted intentionally in transporting dangerous materials, but not that the company acted intentionally in injuring the employee. As such, the judge noted any allegation of TMR’s intent to injure the employee would fly in the face of the complaint, which alleges a claim of negligence. Thus, the exclusive remedy of workers’ comp barred the wrongful death claim. Muenstermann v. United States

Exclusive remedy bars negligence suit for borrowed worker – Illinois

An employee of a temporary staffing agency was assigned to work for Lindoo Installations Inc. and suffered a partial amputation of his right index finger when it was trapped between a bundle of shelving and a forklift. He filed for workers’ comp with the staffing agency and filed a negligence claim against Lindoo. While the trial court granted Lindoo’s motion for summary judgment under the exclusive remedy provision, the employee appealed arguing that the staffing agency’s branch manager periodically checked in.

The appeals court affirmed the decision, noting Lindoo met several factors that determine a borrowed employee relationship and qualified as a borrowing employer because it had the right to direct and control the employee’s work. TerranceFalge v. Lindoo Installations Inc.

Undocumented worker due benefits – Kansas

In Mera-Hernandez v. U.S.D. 233, the court found the injuries suffered by an undocumented school custodian were compensable even though she used a false name and submitted falsified documents to the school district when she was hired. The Supreme Court affirmed the Court of Appeals ruling that her immigration status does not dispute the work she performed for the school district and she fits the broad definition of employee under the law.

Clarifying Schoemehl window, court awards widow comp benefits – Missouri

For a very brief time, Missouri espoused a rule, known as the “Schoemehl doctrine,” that allowed for a permanently and totally disabled worker’s weekly benefits to be passed on to his dependents upon his death. The doctrine is limited to claims that were in existence as of January 2007, the date of the Supreme Court’s decision in Schoemehl v. Treasurer, and had not yet been fully resolved by June 2008, when the legislature then abrogated the doctrine.

In Ogden v. Conagra Foods, Ogden suffered serious injuries to his skull and spine in a 2001 motor vehicle accident and collected more than $2.4 million in benefits until his death in 2014. In 2009, the Ogden’s attorney filed a Form 21 Claim for Compensation for the employee and his wife. After Ogden died, his wife demanded payment on her claim for Schoemehl benefits.

The Industrial Commission determined she was entitled to payment, and Conagra appealed. The Court of Appeals approved benefits, explaining it didn’t matter that the wife’s claim for Schoemehl benefits wasn’t filed within the window of January 2007 to June 2008 because the claim was open and active during this time.

 

Credibility of doctors’ conflicting testimony weighed in appeal – Nebraska

In Hintz v. Farmers Cooperative Association, a worker was injured when a tire exploded, but he did not seek medical care and returned to work after a day-and-a-half absence. About three weeks after the accident, he tripped on the stairs at home and sought medical attention, which revealed a labral tear and other problems with his hip. His physician took him off work and performed surgery, and Farmers’ Cooperative terminated him after several months’ absence.

The worker filed a workers’ comp claim, and his physician testified although the worker had given inconsistent accounts about whether the hip injury was caused by the explosion at work or the trip down the stairs, when he performed surgery he observed a serious labral tear that seemed more likely to have been caused by the workplace explosion. An IME disagreed, testifying the injury was more likely caused by the fall down the stairs.

The Workers’ Compensation Court denied the claim, finding the IME’s testimony to be more reliable, but the Court of Appeals overturned, noting the treating physician had personally seen the extent of the injury during surgery.

Country club worker can proceed with lawsuit after general manager struck him in the groin with a golf club – New York

A country club employee whose left testicle was surgically removed after the club’s general manager struck him in the groin with a golf club is entitled to sue for damages beyond workers’ compensation benefits ruled an appellate court. The locker-room attendant was observing the assembly of golf clubs in the pro shop when the general manager entered and picked up a golf club shaft and struck him in the testicle, then left the room laughing.

The employee and his wife sued the general manager, who sought dismissal of the case based on workers’ comp exclusive remedy. The Court concluded that questions of fact existed as to whether the general manager acted in a ‘grossly negligent and/or reckless’ manner when he swung the golf club shaft and struck the employee and whether the country club condoned the action, thus the civil case can proceed. Montgomery v. Hackenburg.

Blackout caused by non-work conditions does not prohibit benefits – New York

In Nuclear Diagnostic Products, 116 NYWCLR 211, the New York Workers’ Compensation Board awarded benefits to a driver, who crashed his work vehicle after losing consciousness. The driver reported that he started coughing due to an asthmatic reaction to a new air freshener in his house and lost control of the car. The Board explained that since the driver’s accident occurred in the course of his employment he was entitled to a presumption that the accident arose out of his employment and that the driving of the employer’s vehicle was an added risk of employment.

Severe disability from Legionnaires’ Disease compensable – Pennsylvania

An employee of Nestle’s New Jersey office did most of his work in Pennsylvania performing maintenance on beverage machines. He fell ill, was hospitalized, lapsed into a coma, and was diagnosed with Legionnaires’ Disease. The illness left him wheelchair-bound, affected his speech, and the treatment he received may have caused brain damage. Nestle denied the allegations that he contracted the disease while working on fountain and soda drink machines that contained contaminated water, and argued the disease was not a result of work-related exposure. After testimony from a number of personal witnesses and medical experts, a workers’ comp judge determined that the employee was temporarily totally disabled and entitled to workers’ comp benefits. The Workers’ Compensation Appeal Board and the Commonwealth Court affirmed. Nestle USA Inc./Vitality vs. Workers’ Compensation Appeal Board

Seasonal worker difficult to prove – Pennsylvania

Two recent decisions of the Commonwealth Court illustrate how difficult it is for an employer to establish that a worker is a seasonal employee. While there is a specific formula for calculating the average wage when a worker is engaged in an “exclusively seasonal” occupation, the law does not provide a definition for the term. The controlling standard comes from a 1927 Supreme Court case which declared seasonal occupations are “those vocations which cannot, from their very nature, be continuous or carried on throughout the year, but only during fixed portions of it.”

In Toigo Orchards v. WCAB (Gaffney), a tractor driver who was hired for a single apple harvest doesn’t fall within the “exclusively seasonal” category. The argument was that the injured employee was “itinerant agricultural labor,” a tractor driver, and that short-term employment is not synonymous with seasonal work. Had he been treated as a seasonal employee his weekly benefits would have been only $31.99, compared to $315.90 weekly, which he was awarded.

In Lidey v. WCAB (Tropical Amusements), a carnival ride fabricator wasn’t an “exclusively seasonal” employee, even though his employer did business only during the summer months. He was awarded $917 per week, based on his weekly wage of $2,000.

Philadelphia Eagles must pay workers’ comp and a penalty for failing to report player’s injury – Pennsylvania

A defensive end for the Philadelphia Eagles ruptured his right Achilles tendon during the team’s training camp and underwent surgery and PT until he became a free agent. The team paid for his treatment and surgery and paid his regular salary until his contract expired, but failed to file workers’ comp documents. As a free agent, he rehabilitated at a private facility, which the team paid for, and ruptured his left Achilles tendon and the team paid for the surgery, but he paid for the rehabilitation. He filed for disability benefits and the team argued it should not be responsible for the second injury because it was not work related.

A workers’ compensation judge, and on appeal the Workers’ Compensation Appeals Board, ruled that the Eagles violated regulations by failing to report his first injury and awarded the claim petition as well as a 50 percent penalty to be paid by his employer on past-due compensation. The Eagles argued it was “not practically possible” to report every injury that occurs as a workers’ compensation claim as they see between 800 to 1,000 injuries during the season and practice. They file workers’ compensation claims only when players need treatment beyond what can be treated in the training facility, and they file NCPs on request.

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Legal Corner

ADA
Jury verdict for needle-phobic pharmacist overturned

In Christopher Stevens v. Rite Aid Corp. et al. a federal appeals court overturned a $1.8 million jury verdict and ruled Rite-Aid did not violate the ADA when it terminated a pharmacist who was afraid of needles. When the company started requiring pharmacists to perform immunizations in 2011, the pharmacist, who had worked as a Rite Aid pharmacist and its predecessor pharmacies for 34 years, provided a doctor’s note that he suffered from trypanophobia (needle phobic) and would likely faint if he had to administer an injection. Shortly thereafter he was fired and filed a wrongful termination suit.

At trial, a U.S. District Court jury in Binghamton, New York, awarded him a total of $1.8 million. But on appeal, the court found that immunization injections were an essential job requirement for Rite Aid pharmacists at the time of Stevens’ termination and, therefore, Rite Aid did not violate the ADA.

Firing of bad-tempered bipolar employee did not violate ADA

In Michael Waggoner v. Carlex Glass America L.L.C., an employee of Nashville, Tennessee-based Carlex Glass America L.L.C., had been disciplined twice for violent outbursts while working for his plant’s previous owner. The second time he was suspended but allowed to return to work under a “last chance” agreement. After two more outbursts, he was terminated with the employer citing a work rule against using abusive language toward co-workers.

While he cited examples of other employees who had similar violations of the work rule, the court concluded that his outbursts may have posed a greater workplace safety threat and that the other employees did not have a history of infractions.

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

HR Tip: ABA’s summary of 2016 FMLA cases

Every February, the American Bar Association’s (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. This handy report summarizes every FMLA decision from 2016 in a user-friendly manner.

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

HR Tip: ADA: Beware of risks of litigation from deceased former employee’s estate

A recent decision by the 8th U.S. Circuit Court of Appeal puts employers on notice that ADA claims may survive an employee’s death. In Guenther v. Griffin Construction Co., an employee who requested a three-week leave of absence to undergo radiation for treatment of cancer was terminated and advised he could apply for open positions in the future.

He filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC) and died while the charge was pending. The estate filed a disability discrimination lawsuit under the ADA and Arkansas state law. Since the ADA does not address the situation, the lower courts relied on Arkansas state law that the claims would not survive the death. However, the Court of Appeals disagreed siding with the establishment of a uniform federal law that allows for ADA claims to proceed after the death of the plaintiff.

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

 

Things You Should Know

EEOC issues guidance on mental health discrimination and reasonable accommodations

A resource document titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” is now available from the EEOC, reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the ADA.

Sound level meter mobile app from NIOSH

NIOSH has developed a sound level meter mobile app designed to measure noise exposure in the workplace. The app, available for Apple devices, provides noise exposure metrics, including instantaneous sound levels in A-weighted, C-weighted or Z-weighted decibels, as well as parameters intended to aid with lowering occupational noise-induced hearing loss. Users can save and share measurement data and receive general information about noise and hearing loss prevention.

NIOSH recommends using the app with an external microphone and acoustical calibrator for better accuracy. The app is not intended for compliance or as a substitute for a professional sound level meter or a noise dosimeter, the agency cautions.

Mine safety inspection rule delayed

The Mine Safety & Health Administration’s newly issued workplace examination rule, is another one of the rules delayed 60 days by the Trump administration’s Jan. 20 regulatory freeze and review instructions. The rule, which was to go in effect May 23, is intended to improve miner safety and health by requiring examinations take place before miners are exposed to adverse conditions and notifying miners when a hazardous condition is found.

Five warning signs of employee fatigue

  1. Unusual emotion: employees acting out of character, such as showing emotional distress, moodiness, or having a bad attitude in the workplace.
  2. Consistent lateness: if a normally punctual employee arrives late to work every morning, it can indicate poor work-life balance.
  3. A cluttered workspace: Pay attention to employees’ desk and workstations. While some people prefer a more chaotic environment, a messy workspace can be a symptom of overwork.
  4. Forgetfulness and disregard for the team at large: It can also be a sign that the employee in question has too many things to think about and isn’t on top of their workload.
  5. Productivity dips despite longer hours: Productivity often decreases the longer employees spend at work.

Source: WorkForce Software (WFS Australia)

FDA approves long-acting opioid painkiller, Arymo ER.

The U.S. Food and Drug Administration (FDA) has approved Egalet Corp.’s long-acting opioid painkiller, Arymo ER. An independent panel recommended the drug be labeled as an abuse-deterrent product. Arymo ER is a long-acting variation of morphine that is intended to treat pain severe enough to require daily, around-the-clock, long-term opioid treatment. It comes in the form of a very hard pill that is difficult to crush and otherwise manipulate by people looking to abuse the product.

EPA updates

  • Final rule sets standards on ‘restricted use’ pesticides
    Certified workers who apply “restricted use” pesticides must be at least 18 years old and have their certification renewed every five years, according to updated standards finalized Dec. 12 by the Environmental Protection Agency.
  • Risk Management Program rule for chemical facilities amended
    Amendments to its Risk Management Program rule are an effort to improve chemical process safety and keep first responders safer.
  • Requirements to help prevent paraquat poisonings
    The herbicide paraquat can result in death or injuries through ingestion or skin or eye exposure. Paraquat is used for weed control and as a defoliant on some crops before harvest.

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

Legal Corner

ADA
Severe obesity claim of discrimination can proceed

A bus driver of the Chicago Transit Authority sought to return from an extended medical leave and was cleared through a fitness exam to return to work, but failed a safety assessment and was not allowed to return to work. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and the employee had not alleged a physiological disorder.

However, the Court noted that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. The court did not take a position on what approach is right, but said “[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same.” Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016)

 

FMLA
Medical privacy protected under FMLA

In Scott Holtrey v. Collier County Board of County Commissioners, the Florida U.S. District Court ruled the employer violated the FMLA when a management-level employee allegedly disclosed the employee’s serious health condition with his genitourinary system to co-workers and subordinates at a staff meeting. The employee became the subject of jokes and obscene gestures. While the County Board argued that the interference claim failed because it granted the employee FMLA leave, the Court disagreed, “The enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA.”

Doctor’s certification and job description key factors in defining essential functions

A laborer for the City of Red Bank in Tennessee, who rose to the position of Assistant to the Director of Public Works, did significant outdoor work. His job evolved and required different responsibilities, more and more of which were outdoors. He developed skin problems and was diagnosed with lupus. His dermatologist said he needed to be indoors.

After an indefinite FMLA leave lasting six months, he returned to work and bought protective clothing, but it failed to provide adequate protection. He sought another FMLA leave and his doctor ‘s certification emphatically stated that he must work indoors. When it was determined he was not qualified for the two open indoor positions, he was terminated.

The City prevailed at the federal court level, and upon appeal the Sixth Circuit Court of Appeals affirmed that the worker did not show that he could perform the essential functions of his job with or without accommodation. While the employee and the doctor attempted to modify their position after the termination decision, the City had a right to base its decision on the information available at the time of termination. Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016)

Workers’ Compensation
Michigan federal court reiterates that RICO may not be used for bad faith claims – United States

Citing two earlier precedents, a federal district court sitting in Michigan ruled that racketeering activity leading to a loss or diminution of benefits that a worker expects to receive under a state workers’ compensation system does not constitute an injury to “business or property” under the Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The worker tried to distinguish his case by alleging tortious activity by “independent medical examiners.” Gucwa v. Lawley, 2017 U.S. Dist. LEXIS 8698 (E.D. Mich., Jan. 23, 2017)

Medicare reimbursement is limited to related injuries identified by diagnosis codes – California

The U.S. District Court for the Central District ruled in favor of the California Insurance Guarantee Association (CIGA) in its ongoing challenges against the Centers for Medicare and Medicaid Services (CMS) over the Medicare Secondary Payer (MSP) practices. CIGA faced Medicare Conditional Payment demands for three separate workers’ compensation claims that had settled. Included in the demands were diagnosis codes unrelated to the accident.

CIGA noted to the court that it is not uncommon in conditional payment letters from the CMS for multiple diagnosis codes to appear under a single charge – some of which relate to a medical condition covered by the primary plan, but others that do not. CMS routinely determines if any of the codes relates to a covered condition and seeks reimbursement for the full amount. California Insurance Guarantee Association v Burwell, et al case no. 2:15-cv-0113odw (ffmx)

Broad interpretation of employment finds union responsible for member’s injury – California

In Mason v. S.E.I.U. Local 721, 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that an employee of the County of Los Angeles, Department of Children and Family Services who was a member of S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury while participating in a union rally. The WCAB found employment by the union, noting the injured worker was rendering service for “another,” (the union), and that the union provided transportation, food and water while at the rally, and that the services and goods provided by the union were akin to economic substitutes for wages.

Injured worker can’t switch to doctor in different specialty – Florida

In a case of first impression, the Florida 1st District Court of Appeal ruled that a worker exercising his statutory right to a one-time change in physician was not entitled to choose a new doctor in a different specialty simply because the carrier did not respond in a timely fashion. In Retailfirst Insurance Co. v. Davis, an employee who had injured his leg had received authorization for treatment with a family practice physician and later sought authorization for care with an orthopedist. The court noted that procedures exist for such a request.

Change in economic conditions not basis for increased benefits – Illinois

In Murff v. IWCC (City of Chicago), No. 1-16-0005WC, 01.06.2017, an injured worker returned to work in a modified capacity. Later, he was determined to have reached maximum medical improvement and was awarded benefits and continued to work in the modified capacity for about six months. He was then told him that if he could not return to his old job duties, he’d have to go home, so he went on disability leave and filed a claim seeking additional comp benefits.

The Appellate Court upheld the findings of the lower courts that there was no evidence he had not suffered any material change in his physical or mental condition since the award of benefits. An increase in economic disability is not a basis for additional comp benefits.

Lung disease from pigeon droppings lead to lifetime of benefits – Missouri

In Lankford v Newton County an investigator with the county prosecutor’s office would smoke frequently on the courthouse roof, which was a popular place for pigeons. In 2002, he was diagnosed with COPD as a result of ammonia exposure from investigating a meth lab and in December 2007, after undergoing lung surgery, to remove half of his right lung, which contained a nodule that was suspected to be cancerous, he suffered a stroke that left him unable to work.

He filed a workers’ comp claim asserting that he was exposed to pigeon droppings during the course and scope of his employment. Doctors noted that a biopsy of his lung nodule showed the growth contained bacteria and a fungus linked to pigeon droppings. He died of complications and his wife became the claimant. The case was appealed up to the Court of Appeals, but in each case, the award of $167,811.62 in permanent total disability benefits to the deceased worker, as well as more than $500 in lifetime weekly workers compensation benefits to his wife, was approved.

Change in job duties means claim compensable despite pre-existing condition – Missouri

In Clawson v Cassens Transport Company, a union car hauler had a pre-existing knee condition as a result of a work-related accident a few years earlier. After working for 3.5 years after the accident, his workload increased and he began working 6-7 days per week. When he complained of pain in his knee, the employer denied the claim and declined to provide medical treatment. He sought medical treatment on his own, was advised to have surgery and a doctor opined the issue was casually related to the increase in his job duties.

At a hearing, an ALJ found that although there was a pre-existing condition, the prevailing factor in causing his worsening condition was the change/increase in his job duties.

Subcontractor found guilty for worker’s death – Missouri

The U.S. District Court in Kansas City found Pacific-based DNRB Inc., a steel erection company doing business as Fastrack Erectors, guilty in the 2014 death of an employee who fell while working on a warehouse construction project in Kansas City. The court found that “Fastrack was aware of safety violations but willfully ignored them, with tragic results.” Fastrack was a subcontractor to ARCO National Construction – K.C., Inc. and the contract required that personnel who were working or present at heights in excess of six feet shall be provided adequate fall protection and Fastrack failed to do so.

Undocumented worker due comp benefits – New York

A U.S. District Court judge dismissed an insurer’s request to forgo payment of workers’ compensation benefits for an undocumented landscaper’s injury. The insurer, NorGuard Insurance Co., sought a declaratory judgment that it wasn’t obligated to pay medical expenses, indemnity payments or comp benefits because the worker had entered the U.S. illegally.

The court noted that the insurers allegations simply do not “fall within the zone of interests protected by law invoked. Such violations are the concern of the Internal Revenue Service, Homeland Security, and like agencies.”

Opera singer can sue Met for injuries sustained in fall – New York

Finding that her employment contract was with her personal holding company and not the Metropolitan Opera House, an Appellate Court found that a prominent opera singer can sue the famous facility that featured her in over 500 performances. Noting that New York law generally considers a person engaged in the performing arts an employee of the establishment where he or she performed, the exception here was the singer was stipulated to be an employee of another employer. Therefore, the exclusive remedy provisions of workers’ comp do not bar her suit. White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)

No reason to stop compensating attendant care by wife – North Carolina

In Thompson v. International Paper Co., No. COA15-1383, 01/17/2017, a worker was burned over 23% of his body in a work-related accident. His wife took FMLA leave from her job to care for her husband and, when she returned to work, she arranged her schedule to accommodate his medical needs. While the company accepted the burn injuries as compensable, it denied reimbursement for attendant care services provided by his wife. The full Industrial Commission ruled that attendant care by his wife was unnecessary after Dec. 31, 2012, but the appellate panel disagreed. While the need for care may have lessened, treating physicians had found attendant care was medically necessary.

Futility in finding another job allows continuing benefits – North Carolina

In Neckles v. Teeter, a 68-year-old employee who had moved to the U.S. from the Caribbean island nation of Grenada had worked as a meat cutter and suffered an injury to his lower back, right hip, and right arm and leg for which he was compensated and received temporary total disability. A functional capacity evaluation concluded he couldn’t go back to his job as a meat cutter, but he was capable of a job that required light physical demands, however, a vocational rehabilitation specialist determined it would be difficult for him to get any job.

Three years later, the employer filed a form alleging the worker was no longer disabled. After a series of appeals, the Court of Appeals ruled that the worker should continue to receive TTD benefits and coverage of medical expenses. According to the court, it was necessary to look at the totality of the evidence, including age, education, work experience, work restrictions for the compensable injury, other unrelated health conditions (i.e., diabetes, gout, and angina), and trouble communicating (a thick accent).

IRE that didn’t consider worker’s psyche invalidated – Pennsylvania

A divided Supreme Court ruled that an impairment rating evaluation (IRE) that failed to consider a worker’s psychological injuries from an industrial accident was invalid, noting an IRE doctor must consider all conditions that he or she believes are related to the worker’s injury, not just those that are designated in the notice of compensation payable (the “NCP”.)

In this case, an employee suffered an electric shock and received 104 weeks of temporary total disability benefits at which time the employer requested an IRE. The doctor assigned a 6% permanent impairment rating, but the employee argued his compensable injury included damage to his psyche as well as his hands. A workers’ compensation judge found the worker had adjustment disorder and post-traumatic stress disorder that were compensable consequences of the accident. While the Workers’ Compensation Appeal Board and the Commonwealth Court reversed this decision, the Supreme Court overturned their ruling, noting that the IRE doctor must determine the level of impairment and in this case did not assess psychological conditions, nor determine whether those conditions were fairly attributable to the accident. Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.)

Supreme Court affirms franchisors do not employ their franchisees’ employees – Pennsylvania

In Saladworks, LLC v. W.C.A.B. (Gaudioso), the question revolved around whether the franchisor, Saladworks, was a statutory employer. Under Pennsylvania law, when an employee is unable to recover from its direct employer, the employee can file a workers’ compensation claim against a “statutory employer.” A Workers’ Compensation Judge initially held that Saladworks was not a statutory employer, however, the Workers’ Compensation Appeal Board reversed that decision. On appeal, the Commonwealth Court reversed the Board’s decision recognizing the difference between Saladworks’ business model and the business engaged in by its franchisee. The Supreme Court dismissed the appeal, effectively upholding the Commonwealth Court’s decision.

Penny wise and pound foolish: attorney’s fees of $27,000 awarded for $187 medical claim – Tennessee

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers’ Compensation Appeals Panel of the Supreme Court affirmed a trial court’s award of attorney’s fees and expenses in the amount of $27,353.63, in connection with an employee’s petition to compel the employer to pay $187 for two trigger point injections. The workers’ compensation carrier had sought a peer utilization review (UR), although it had paid for earlier injections. An authorized physician provided the injections to the injured employee, but the UR provider found the injections unnecessary. Following a hearing, the trial court disagreed.

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

Things you should know

ACP latest medical guideline to discourage opioids for treatment of low back pain

A new low-back pain treatment guideline from the American College of Physicians (ACP) is the latest to discourage the use of opioids, instead encouraging the use of such treatments as exercise, acupuncture, massage, or biofeedback. When low-back pain becomes chronic, defined as lasting longer than 12 weeks, ACP recommends that patients start with non-drug therapy, which might include exercise, acupuncture, biofeedback, cognitive behavioral therapy or spinal manipulation. The guideline applies to cases of nonradicular low-back pain, where pain is not radiating into the patient’s legs.

If patients wish to take medication, they should use nonsteroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen, or skeletal muscle relaxants prescribed by a doctor. Acetaminophen and steroids are not recommended for low back pain, according to the guideline.

Guide offers advice on choosing the right slip-resistant footwear

Intended for workers, purchasers, and safety and health committees, a Montreal scientific research organization offers a free pamphlet detailing the procedures for choosing footwear with proper grip and protection against hazards. It also lists necessary steps, including creating a selection committee, considering risk factors, selecting the proper sole and verifying the selection before purchase.

ISHN annual update on hand protection

The Industrial Safety and Hygiene News February edition features its annual update on hand protection.

FMCSA delays effective date for CMV driver minimum training standards

The Federal Motor Carrier Safety Administration (FMCSA) rule establishing national minimum training requirements for entry-level commercial motor vehicle drivers has been pushed back until at least March 21 based on the executive order to temporarily postpone certain regulations that have yet to take effect. The agency could delay the minimum training rule beyond March 21, if necessary.

NIOSH publishes workbook on Total Worker Health

NIOSH has released a workbook it calls “a practical starting point for employers, workers, labor representatives, and other professionals interested in implementing workplace safety and health programs aligned with the approach.” The Total Worker Health concept emphasizes a work environment that is free of hazards and uses “a modern prevention approach” that acknowledges that occupational factors can affect the well being of employees, their families and their communities.

New Jersey’s toughens opioid laws

The New Jersey law limits doctors’ ability to issue first-time opioid prescriptions for more than five days, mandates doctors to create a pain-management treatment plan regarding the use of opioids and review prescriptions every three months, and requires doctors to obtain a written record that the risks of taking opioids were discussed with the patient. The law also mandates state-regulated health insurers to cover the first 4 weeks of inpatient or outpatient substance abuse treatment without the need for authorization. Insurers must provide additional coverage for up to 6 months of treatment, including medication-assisted treatments, if deemed medically necessary.

The prescription drug limit would not apply to patients with cancer and for end-of-life hospice care.

IRS will accept tax returns from individual filers without health care status but employer requirements remain the same

The IRS announcement that it will not reject taxpayers’ 2016 income tax returns that are missing health coverage information applies to personal income tax returns. Employers still must distribute 1095 forms to employees and report employee health coverage to IRS. Also, it is not a repeal of the individual mandate; penalty provisions are still in place and are currently being enforced.

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

Top 10 Workplace Trends in 2017

Performance Management tops the list

The Society for Industrial and Organizational Psychology (SIOP) asked its members – who study workplace issues of critical relevance to business, like talent management, coaching, training, organizational development, and work-life balance – about their predictions for 2017. Topping the list of top ten is the changing nature of performance management.

While much has been written about companies ending annual performance reviews and ratings, it’s unclear what will take its place. The group predicts, “Organizations can expect to rely less on once-a-year performance appraisals and more on frequent feedback and coaching to put the focus on improving performance. Strategies, such as continuous performance management, will lead to a greater emphasis on real-time feedback, daily manager-employee relationships and an increased need for managers to acquire the skills to coach and deliver timely feedback to employees.”

For the Top 10 Workplace Trends for 2017

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

Things you should know

DOL website has new section on worker misclassification

The DOL has compiled information on worker misclassification on a new section of its website.

Workers’ Compensation Medicare Set-Aside Arrangement (WCMSA) “Re- Review” process

In Calendar year 2017, CMS expects to update its existing re-review process to address situations where CMS has provided an approved amount, but settlement has not occurred and the medical care that supported the approved amount has changed substantially.

Workplace deaths up in 2015

According to the Department of Labor, 4,836 fatal work injuries were recorded in 2015, a slight increase from the 4,821 fatal injuries in 2014. 2,054 of these involved transportation incidents, with roadway incidents accounting for 26 percent of all fatal work injuries. Almost half of these fatalities involved some kind of tractor-trailer truck. The information includes U.S. workplace deaths resulting from traumatic events but does not include workers who die from long-term exposure to workplace hazards, such as toxic chemicals.

MSD checklists by industry

The Safety & Health Assessment & Research for Prevention Program at the Washington State Department of Labor & Industries has released six industry-specific checklists and summary reports aimed at helping employers identify risk factors that may contribute to work-related musculoskeletal disorders. The checklists are available for agriculture, construction, healthcare, manufacturing, services, and wholesale and retail trade.

US tops lists for days lost and highest costs of sleepy workers

Lack of sleep among U.S. workers results in an increased risk of death and the loss of 1.2 million working days per year, and costs the economy up to $411 billion annually, according to a new report from RAND Europe. Researchers said workers who increase their sleep duration to between six hours and seven hours per night could bring an additional $226.4 billion to the economy. The researchers recommended that employers understand the importance of sleep and promote it, create brighter workplaces, provide settings for naps, and discourage lengthy use of electronic devices after work.

FMCSA to establish database of CMV drivers who fail drug, alcohol tests

Commercial motor vehicle drivers who fail a drug and alcohol test will be listed on a national clearinghouse to be created by the Federal Motor Carrier Safety Administration (FMCSA), according to a final rule published Dec. 5. Motor carriers will need to search the system for information related to current and prospective employees who might have unresolved violations that prohibit them from driving. Employers and medical review officers also will be required to report information about drivers who test positive for drugs or alcohol, refuse to comply with drug and alcohol testing, or participate in the return-to-duty drug and alcohol rehabilitation process.

FMCSA to develop minimum training standards for entry-level CMV drivers

Entry-level commercial truck and bus drivers seeking a commercial driver’s license or select endorsements will soon face national minimum training requirements under a final rule. The new rule will apply to first-time CDL applicants; drivers seeking to upgrade their CDL to another classification; and drivers seeking an endorsement for hazardous materials, passenger or school bus operations for the first time.

Workplace weight loss programs lower health care costs, improve quality of life: study

People who participate in a weight management program at work experience lower health care costs and better quality of life, according to a study from the University of Nebraska Medical Center. Researchers examined data on 1,500 University of Minnesota workers who attended group meetings about weight management over a three-year period. Participants typically were older women who had a higher body mass index and were more likely to have a chronic disease. The average annual savings in health care costs was $876 per participant.

 

State News
California

Starting July 1, doctors who wish to repeatedly prescribe opioids to injured workers will have to subject the claim to a review process, according to an overview of the proposed workers’ compensation prescription drug formulary set to go into effect next summer.

Illinois

A new rule requiring some Illinois employers to provide collateral for large-deductible workers compensation policies was approved. The rule implements Senate Bill 1805/Public Act 099-0369.

Massachusetts

A new pilot program is aimed at helping injured workers get pain management treatment after settling workers’ compensation claim. The voluntary program is designed for individuals with settled cases, who are still being treated with opioids, but the insurance company seeks to stop payment for continued use of opioids.

New York

New health insurance reforms that went into effect Jan.1 and target the heroin and opioid epidemic require small and large group health plans, and individual plans, to cover inpatient treatment for New Yorkers suffering from opioid addiction.

For Cutting-Edge Strategies on Managing Risks and slashing Insurance Costs visit www.PremiumReductionCenter.com