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

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

Temporary guidance

IRS guidance

Families First Coronavirus Response Act: Employee Paid Leave Rights

Families First Coronavirus Response Act: Employer Paid Leave Requirements

 

Q & A

Families First Coronavirus Response Act: Questions and Answers

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

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

 

Posters

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

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

Families First Coronavirus Response Act Notice – Frequently Asked Questions

 

Tax credits for small and mid-sized businesses

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

Employers need to keep accurate documentation on these issues.

More information

IRS Coronavirus Tax Relief

 

Field Assistance Bulletin

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

 

HIPPA, FMLA, and ADA

NIH HIPAA Privacy and Novel Coronavirus

The FMLA and Leave

ADA Accommodation

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Legal Corner

ADA

Construction company pays $100K for firing worker with epilepsy

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

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

FMLA

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

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

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

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

Workers’ Compensation

Comp settlement bars claim for disability discrimination – California

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Misrepresentations about job search nix benefits – New York

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

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

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

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

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

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

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

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

Employer may have to pay for expensive compound cream – Pennsylvania

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

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

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

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

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

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

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

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

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

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

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

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

 

HR Tip: Employees cannot decline FMLA leave even when a collective bargaining agreement says otherwise

In March 2019, the DOL issued an opinion letter that neither an employee nor an employer may decline FMLA leave when an eligible employee is absent for an FMLA-qualifying reason. The letter noted this is particularly true even if the employee wants the employer to delay the designation of FMLA leave.

Apparently, this created confusion in union environments where there is a collective bargaining agreement that allows the employee to use paid leave first and then use FMLA leave after paid leave is exhausted. In a new opinion letter , the DOL made it clear that an employer still may not delay designating paid leave as FMLA leave even if the delay otherwise complies with a collective bargaining agreement.

The bottom line is that in all cases once the employer has sufficient information to determine that an employee’s leave is covered by the FMLA, it must designate the leave as FMLA leave.

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

Legal Corner

ADA

Employer can require reassessment of restrictions

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

FMLA

Employer can ask employee to explain misconduct while on FMLA leave

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

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

Workers’ Compensation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paralysis from car accident not compensable – North Carolina

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

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

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

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

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

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

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

Bank teller’s carpal tunnel not compensable – Pennsylvania

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

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

Violation of restraint policy does not nix benefits – Tennessee

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

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

Psychological injuries from assault compensable – Tennessee

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

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

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

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

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

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

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

HR Tip: DOL opinion letter: Parent attendance at school IEP meetings are covered by the FMLA

In a recent opinion letter, the DOL concluded that the FMLA covers an employee’s attendance at a school meeting where their child’s individualized education program (IEP) will be discussed. In so doing, the DOL concluded that the employee’s attendance at the IEP meetings constitutes “care for a family member…with a serious health condition.”

FMLA guru, Jeff Novak, suggests employers:

  • Treat a request for FMLA leave to attend an IEP meeting consistent with how all other intermittent FMLA leave requests are handled, including requiring the employee to provide notice for a foreseeable leave of absence and provide appropriate certification to support the leave request. The medical certification should contain specific language supporting the need for the employee to attend IEP meetings for the child.
  • Since it may be difficult to determine if it is an actual IEP meeting, closely review the need for attendance specifically at school meetings so that there is some connection to the child’s IEP or issues that implicate the Individuals with Disabilities Education Act (IDEA).
  • Unless there is objective evidence that the employee is lying about attendance at the IEP meetings, employers should tread carefully in requesting documentation to support attendance at every IEP meeting.
  • Train your managers about this new obligation so that these requests are not being outright rejected in the context of FMLA leave, which may be their knee jerk reaction.

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

Legal Corner

FMLA 
PTSD triggered by supervisor warrants suit reinstated under FMLA but disability charge dismissed under ADA

In Cindy Tinsley v. Caterpillar Financial Services Corp., a former financial services worker complained about a hostile work environment created and allowed by her supervisor (allowing coworkers to bounce stress balls off the ground), unrealistic deadlines and excessive workload. She requested a transfer or leave and was granted the leave, but not the transfer. Shortly after completion of 18 weeks of leave, she received a negative performance review and was placed on an improvement plan, which she would not sign. She then retired because the company denied her requests for additional leave or a new supervisor.

She filed lawsuits alleging Caterpillar had violated the ADA by not providing her with reasonable accommodations and had retaliated against her for making an FMLA claim. While she argued her PTSD limited only her ability to perform the major life activity of “work,” the three-judge panel of the 6th Circuit upheld the dismissal because her PTSD did not substantially limit her from performing a class of jobs or broad range of jobs.

The ruling, however, reinstated her FMLA retaliation charge. It said she had succeeded in making the prima facie case of availing herself of a protected right under the FMLA and that the company had not provided a legitimate, non-discriminatory reason for the adverse employment action. The case was remanded to the district court.

Workers’ Compensation 
Bunkhouse rule means farm-related injury compensable – California

In Gonzalez v. Athwal Farms, a farm worker lived on the farm in a rented trailer and was seriously injured on a Sunday when he was driving across the farm to check several agricultural pumps before heading to a store. Prior to the accident, he had been drinking beer with friends. The “Bunkhouse Rule,” which applies when the nature of work necessitates the employee live on the employer’s premises and the injury has a causal relationship to the employment, was applied by the WCJ and affirmed by the panel. While evidence was presented that the employee had consumed four to eight beers, the farm failed to establish an affirmative intoxication defense.

IMR physician required to review entire record – California

In Bowen v. County of San Bernardino, the WCAB affirmed the WCJ’s decision granting the applicant’s appeal of the denial of the continued use of the prescription drug, Norco. While the IMR found that there was no documentation of functional improvement with the use of Norco, the reviewer had not looked at all the submitted reports nor considered the entire record prior to rendering the determination.

Asbestos exposure has very long tail – Florida

In Meehan v. Orange County Data & Appraisals, an appellate court overturned a judge’s decision allowing an employer to end its coverage of asthma medications for a worker who suffered breathing problems after exposure to asbestos in the late 1990s. Fifteen years later, the employer terminated coverage for treatment based on a peer review of the case.

The judge found the doctor for the insurer who determined that treatment was no longer necessary more credible and approved the termination. The appeals court reversed, finding that no “competent, substantial evidence” existed to deny treatment and that the employer and the insurer had accepted the claim as compensable. Once the compensability of an injury is established, an employer cannot challenge the causal connection between the work accident and the injury.

Employer must authorize treating physician but cannot be compelled to pay excessive fees – Florida

In MarineMax Inc. v. Blair, a worker who had received treatment after a fall from a ladder sought to resume treatment with the same physician. The physician had begun his own practice and demanded payments in advance which were beyond legislative statutory rates. The company authorized treatment with another physician but the employee refused, arguing he had an existing patient-physician relationship.

A judge of compensation claim (JCC) ordered the employer to “authorize and pay” the doctor, but a majority of the District Court of Appeals reversed in part. While it acknowledged that the company could not “deauthorize” the doctor, the company could not be compelled to provide payments that exceed the applicable fee schedules.

Fall during lunch break not compensable – Georgia

In Daniel v. Bremen-Bowdon Investment Co., an employee on lunch break was walking to her car, which was parked in the employer’s lot. She fell on a public sidewalk on the way to her car. While an ALJ found she was entitled to benefits, the State Board of Workers’ Compensation reversed and a superior court judge affirmed the denial.

State law provides an “ingress and egress” rule, which allows benefits if the injury is on employer’s premises in the act of going to or coming from the workplace. However, there is a “scheduled break exception,” which does not allow benefits for injuries occurring during a regularly scheduled break when the worker is free to do as he/she chooses. Since the injury occurred while she was leaving her workplace during her regularly scheduled lunch break, it was not compensable.

Supreme Court to decide whether workers’ compensation settlement can be exempt in a bankruptcy proceeding – Illinois

In Re Hernandez, No. 18-1789, the 7th U.S. Circuit Court of Appeals certified the question whether the proceeds of a workers’ comp settlement can be exempt from the claims of medical care providers who treated the injury or illness associated with that settlement. When the worker filed for Chapter 7 bankruptcy, she reported as exempt her pending workers’ comp claim, which was settled for $31,000 two days after her filing. She owed over $125,000 to three health care providers.

The circuit said it was not willing to decide because the Act never said which assets were available to healthcare providers and both parties had plausible arguments.

Discrimination suit not barred by exclusive remedy – Minnesota

In a split decision, the Supreme Court ruled that an employee, who sustained a work-related injury and who was receiving workers’ compensation benefits, may proceed with a suit against his employer under the state’s Human Rights Act (“HRA”). In Daniel v. City of Minneapolis, a firefighter received workers’ comp for injuries to his right ankle and was reimbursed for the cost of a pair of tennis shoes, rescue boots and orthotic inserts.

After a few weeks he was told he could not wear the black tennis shoes because they did not comply with the Department’s policy for station shoes. He reinjured his ankle and later injured his shoulder when he lost his footing.

He was placed on light duty, but not allowed to wear the tennis shoes, which he considered necessary to perform the light duty.The Department then placed him on leave and said he could return if his work restrictions allowed him to wear shoes that were compliant with their footwear policy. While there were several meetings to try and find a shoe that would work for both parties, no agreement was reached.

The firefighter alleged that the city had violated the HRA by not providing the reasonable accommodation of allowing him to wear doctor-prescribed shoes inside the station house. He also alleged that the city retaliated against him for requesting an accommodation. A trial court determined the claim under the HRA was not barred because the workers’ comp act did not provide a remedy for his discrimination claim; however, a court of appeals reversed. The Supreme Court held that the employee could pursue claims under each act (Workers’ Compensation Act and Human Rights Act) because they each provide a distinct cause of action that redresses a discrete type of injury to an employee.

Disability benefits can’t offset TTD award – Minnesota

In Bruton v. Smithfield Foods, the Supreme Court has ruled that an employee’s claim for temporary total disability benefits cannot be offset by benefits paid to the employee for the same period of disability under the employer’s short-term disability plan. While the court recognized the decision penalized the employer for their wage-loss benefit, it noted “there is no statutory authority for an offset of workers’ compensation benefits by the amount of benefits paid under an employer’s self-funded, self-administered STD plan in state law governing workers’ comp.”

PTD award not properly challenged, but medical payments reduced – Missouri

In Customer Engineering Services v. Odom, an employee suffered serious injuries while moving a 250-pound photo printer. When he reached MMI, he still had pain and his personal doctors found he had complex regional pain syndrome. For some time he received physical therapy and pain management covered by his wife’s insurance, totaling $36,539.

He never returned to work and an ALJ found him to be permanently and totally disabled. The company appealed, but an appellate affirmed the ruling. The court said the rules of appellate procedure require CES to support all the factual assertions in its argument with specific page references to the record, and the company failed to comply. It also noted the company ignored the evidence that supported the PTD award and focused only on evidence that supported its position.

The court, however, reduced the medical liability by $2,510 since the employee received some treatment before informing the employer of the need for continued treatment.

Contractor liable for injuries to subcontractor’s employee – Nebraska

In Martinez v. CMR Construction & Roofing, the Supreme Court ruled the contractor was the statutory employer of a man who sustained serious injuries after he fell off a roof, even though he was acting as an employee of a subcontractor. Texas-based CMR had verified the subcontractor’s workers’ comp insurance and directed the subcontractor to add the company to the policy and produce a certificate demonstrating that the company would be notified of any changes to the policy.

After the accident, it learned the subcontractor’s insurance had been cancelled a few months earlier for nonpayment. CMR appealed the decision of lower courts arguing it did not qualify as a statutory employer because it required its subcontractor to obtain workers comp insurance. However, the Supreme Court disagreed, noting the Texas-based comp insurer had never been authorized to issue workers’ comp coverage in Nebraska and that the policy clearly showed that coverage did not extend to states other than Texas.

Court weighs in on comp benefits for medical marijuana – New Hampshire

In Re Appeal of Panaggio, the Supreme Court said the state’s medical marijuana laws do not bar a request for reimbursement, overruling a decision by the Workers’ Compensation Appeals Board. While it found workers’ compensation insurers provide payments for medical treatments and that they may be subjected to the same state statutes that cover medical cannabis as a viable medical treatment, it failed to address the question of whether such a practice conflicts with federal law. The court remanded the question back to the Board.

Retroactivity question key to indemnification of contractor – New York

In Guthorn v. Village of Saranac Lake, a project manager of a subcontractor fell from a ladder and suffered injuries. While the contractor had drafted a subcontract that required the subcontractor to indemnify the contractors against any claims arising out of its work on the project, the subcontractor began work and the injury occurred before the contract was executed. When the contractor discovered it did not have an executed contract, it sent another subcontract agreement, which was executed, including the indemnification clause.

The Appellate Division, 3rd Department noted that the Workers’ Compensation Law requires an express written agreement for indemnification. An indemnification agreement executed after a workers’ accident can be applied retroactively if the agreement was made prior to the incident and the parties intended to apply it as of that date. The court denied summary judgement, noting a question regarding whether the agreement was intended to apply retroactively.

Company car does not make injury during commute compensable – North Carolina

In Wright v. Alltech Wiring & Controls, an appeals court denied benefits to the widow of employee killed in auto accident. The company provided a vehicle to the worker who visited client job sites to prepare estimates. His normal routine was to go to the office before visiting the job sites and return to the office at the end of the day. He used the company car for the commute to and from work.

One day, after leaving work he spoke to the owner of the company briefly on his cellphone, then stopped at a Target store. After leaving Target, he was in a vehicular accident on his normal route and died from his injuries. The widow filed for comp benefits, but an appeals court upheld the findings of the Commission that the death did not occur in the course and scope of his employment. In most cases, injuries occurring during a worker’s commute are not compensable, and the company handbook made it clear that commuting to and from work was not considered work time.

Forum state means wrongful death claim is subject to a subrogation lien – North Carolina

In Walker v. K&W Cafeterias, a truck driver was killed in a motor vehicle accident while driving for his employer in South Carolina. His widow was awarded $333,763 in workers’ compensation death benefits in North Carolina. She also filed a wrongful death claim against the at-fault driver in South Carolina, which was settled for $962,500, most of which came from underinsured motorist (UIM) coverage.

The employer sought and was awarded a subrogation lien for the total amount of death benefits. While South Carolina law does not allow for subrogation of UIM proceeds for workers’ compensation benefits, the N.C. Court of Appeals noted under traditional conflicts of law, procedural and remedial issues are determined by the law of the forum where the remedy was sought. Subrogation rights on UIM funds are procedural and remedial in nature and the forum where relief was sought was North Carolina.

Domestic service exception nixes benefits for in-home caregiver – Pennsylvania

In Van Leer v. Workers’ Comp. Appeal Bd, the Commonwealth Court ruled that an in-home caregiver was not eligible for comp benefits. The caregiver worked for a woman suffering from mild dementia and her primary responsibilities were to get the woman ready for bed, make sure she got her medications and stayed in bed throughout the evening.

The workers’ comp act is not applicable to any person “who at the time of injury is engaged in domestic service,” which is based on whether the worker serves “the needs of the household.” The court upheld earlier decisions that the caregiver’s job duties consisted entirely of service to members of the household. In this case, the dementia patient was the household.

Injuries while attending mandatory off-site training not compensable – Virginia

In City of Va. Beach v. Hamel, an appellate court reversed an award of comp benefits to a licensed professional counselor who was injured when she tripped and fell over raised tree roots when she was attending an off-site mandatory training. The court noted that while the counselor may have been mandated to attend the meeting at a community college, she had not been told where to park or which route to take to the building. Her risk of falling was equal to that of any member of the general public.

Electrocuted airport worker not entitled to benefits – Virginia

In O’Donoghue v. United Continental Holdings Inc., a divided appeals court upheld the decision of the Workers’ Compensation Commission that a United Airlines Inc. employee’s injuries were caused by “an act of God” and not compensable. The employee was a ramp serviceman loading and unloading airplanes. The ramp was temporarily closed during a thunderstorm and when it reopened the worker positioned a metal ladder next to the airplane that had just arrived. When he touched the toggle switch to open the cargo door, he felt electricity go through his body and reported he had been struck by lightning.

Under the statute, the mere occurrence of an injury due to a lightning strike while at work is insufficient; it must be proved that the conditions of the employment collaborated in causing the injury. It could not be assessed whether being injured by a lightning strike was an actual risk of the conditions of employment, thus, it was not compensable.

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

HR Tip: Two important FMLA documents

ABA’s summary of 2018 FMLA decisions

Each year, 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 2018 in a user-friendly manner.

Opinion letter

In a recent opinion letter, the U.S. Department of Labor addressed whether an employee could delay FMLA leave and instead utilize accrued paid leave when the absence clearly would qualify as FMLA leave. The answer was a straight forward “no”.

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

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

Legal Corner

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

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

FMLA 
Employee must turn over social media posts

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

Workers’ Compensation 
NLRB: independent contractor test overturned

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disability commences on the work day following the injury – Pennsylvania

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

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

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

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

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

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

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

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

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

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

Falling asleep at the wheel nixes benefits – Virginia

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

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

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

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

Legal Corner

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

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

FMLA
Retaliation claim by fired auditor can go to trial

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

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

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

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

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

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

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

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

PTD granted to worker unable to find work – Mississippi

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

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

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

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

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

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

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

Special employer liable for half of comp benefits – New York

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employer must protect workers’ family from asbestos exposure – Virginia

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

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

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

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

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

HR Tip: New FMLA forms available from DOL

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

Notices

Certification forms

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

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

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