Legal Corner

Employee can be terminated for unexcused absences while entitled to FMLA absences

In Bertig v. Julia Ribaudo Healthcare Group, a nurse was certified for FMLA leave for cancer and asthma. Her employer, a local hospital, had a policy that employees are subject to termination when they accrue seven absences in a rolling 12-month period. She incurred a total of 13 intermittent absences in a 12-month period, only three of which were related to her cancer or asthma.

The hospital had thoroughly documented the reasons for each absence, made its expectations clear, and the nurse acknowledged most of her absences were not related to her cancer or asthma. The court found that she was properly terminated.

Workers’ Compensation
Exclusive remedy does not bar suit against employer under Insurance Fraud Prevention Act (IFPA) – California

In The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al., the 4th District Court of Appeals’ Second Division allowed a workers’ IFPA claim to proceed, noting the act contains qui tam provisions, which allow private citizens to file civil suits on behalf of the state. In this case, an employee argued he suffered a legitimate workplace injury, but his supervisor lied on the reports causing the claim denial. While the company argued that the suit was barred based on the litigation privilege of a workers’ compensation proceeding, the Court of Appeal reversed and found in favor of the worker, holding that the IFPA is an exception to the litigation privilege.

Exclusive remedy doesn’t protect supervisor from assault claim – California

In Lee v. Lang, three employees of the Christian Herald filed suit against the director of the publication for multiple wage-and-hour violations and one asserted claims for assault, battery and the intentional infliction of emotional distress. The Court of Appeals reversed in part the judgement in favor of the director, noting “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.”

Injuries in vanpool accident limited to workers’ comp – Illinois

In Peng v. Nardi, a buffet restaurant provided a 15-passenger van for workers, which an employee drove and was paid for his driving duties. He wasn’t allowed to use the vehicle for personal errands and he was not allowed to let anyone else drive. A passenger suffered a pelvic fracture in an accident and filed a negligence suit against her co-worker and the other two drivers involved in the accident.

While the court noted accidents when an employee is traveling to or from work generally are not treated as occurring within the course of employment, there is an exception when the employer provides a means of transportation or controls the method of the worker’s travel. Although the injured worker was not required to use the van, she relinquished control over the conditions of transportation and, thus, the exclusive remedy of workers’ comp applies.

No loss of wage earning capacity means no benefits – Mississippi

In Pruitt v. Howard Industries, a worker suffered a back injury, received conservative treatment, and returned to work without restrictions in the same plant, with the same job title, and a higher wage. He filed for PPD benefits, but was denied. The Court of Appeals explained that except for scheduled-member cases, indemnity benefits are made for diminished wage-earning capacity and not medical impairment.

Heart attack not accident and not compensable – Missouri

In White v. ConAgra Packaged Foods, a long-term machinery worker collapsed and died on a particularly hot day in the machine shop, which was not air-conditioned. His widow filed a claim for benefits, asserting that his death was the result of heat stroke and/or his physical exertions in the machine shop. While it was acknowledged that the worker had high cholesterol, hypertension, and other risk factors for a heart attack, the question was whether work activities were the prevailing factor that caused the fatal heart attack.

After two denials, the Court of Appeals awarded benefits to the widow, but the Supreme Court reversed. It noted that the worker’s death must have been caused by an “accident.” An accident is defined as an unexpected traumatic event or an unusual strain that is identifiable by time and place of occurrence and that produces objective symptoms of an injury. Further, the law provides that a cardiovascular event is an injury only “if the accident is the prevailing factor in causing the resulting medical condition.”

Long-term exposure to dust leads to PTD benefits – Nebraska

In Moyers v. International Paper Co., a worker suffered respiratory problems over his 42- year employment at a paper company. When a pulmonologist suggested he stop working, he filed for comp. The court found he had a compensable occupational disease and referred him to a vocational counselor who opined that his breathing problems would prohibit working. He was found to be permanently and totally disabled by his occupational disease and this finding was upheld by the Court of Appeals.

Fall while in line for security log in and pass compensable – New York

In Hoyos v. NY-1095 Avenue of the Americas, a worker for a subcontractor slipped and fell off an elevated loading dock while standing in line with other workers at a security check point to obtain a pass to enter the building and get to his job site. Four feet off the ground, the loading dock had no guardrails, chain, rope or other indication where its platform ended and the ledge began.

The court found that even though the worker was not working at the time, he was following the rules of the contractor and had no alternate place to check in. Refusal to treat that spot as a “construction site” under the circumstance of the case would place an “unintended limitation” on the scope of Section 240(1).

Comp claim for PTSD upheld for claims adjuster – New York

In Matter of Kraus v. Wegmans Food Markets, the company had an internal policy that was unpopular with union drivers regarding no-fault benefits. Claims that arose out of a motor vehicle accident were automatically assigned to a workers’ compensation claims service provider that administered the employer’s no-fault claims, but claims that involved the use or operation of a motor vehicle, however, were not.

The in-house adjuster received threats from unionized drivers and was known to be inconsistent in applying the policy, which contributed to his termination. He filed a workers’ comp claim, asserting he had suffered a psychiatric injury from the stress caused by the drivers’ threats and accusations of dishonesty. The case went through several appeals and the Appellate Division’s 3rd Department found he was entitled to benefits for PTSD, noting he was in “an extremely stressful and untenable situation” because of his employer’s “questionable” no-fault policy.

Civil case settlement does not bar workers’ comp claim – North Carolina

In Easter-Rozzelle v. City of Charlotte, the Supreme Court overturned a state appeals decision that questioned whether a worker who sues a third party gives up the right to comp. The case involved a city employee who suffered a work-related injury and was in a serious car accident on his way to a doctor’s appointment to obtain an “out of work” note. He settled his civil suit and the case to continue to collect comp worked its way through a series of appeals.

Ultimately, the Supreme Court ruled that pursuing a third-party action does not affect a worker’s ability to bring a comp claim. The law does not require that an employer consent to the worker’s settlement of a third-party action, and the city is entitled to reimbursement of its lien from benefits due to the worker per state law.

Two-year jurisdiction rule includes out-of-state medical care – North Carolina

In Hall v. United States Xpress, Inc., payments to out-of-state medical care providers meet the criteria that a claim must be filed within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established. The injured worker met the “no other compensation has been paid” criteria since the benefits he had received, which exceeded $8 million in medical care, were provided under Tennessee’s-not North Carolina’s-Workers’ Compensation Act.

Massage service covered by comp – Pennsylvania

In Schriver v. WCAB (Commonwealth of Pennsylvania Department of Transportation), an injured worker received benefits for treatment of a back injury, including chiropractic services. The chiropractor referred him to a licensed massage therapist within the office, and the worker paid $60 for each massage session, but requested reimbursement. The case made its way to the Commonwealth Court, which reversed lower decisions denying payment for the massage services. It noted workers’ comp obligates an employer to provide payment for all reasonable services that an injured employee receives from “physicians or other health care workers,” including chiropractors and their employees or agents.

Earning power, not employment, determines reduction in benefits – Pennsylvania

In Valenta v. WCAB, a worker was collecting total disability benefits for a back and shoulder injury. The former employer’s comp carrier ordered a labor market survey (LMS) and earning power assessment (EPA) performed and six available jobs were identified. The employer then filed for, and was awarded, a modification of payments.

The Commonwealth Court explained the law does not require a worker be offered a job in order to have “earning power,” but meaningful employment opportunities must be available. The court said failure to be hired did not mean that the positions were not open and available, although the evidence of lack of success was relevant to the issue of earning capacity.

Pressured to quit, employee’s disability claim is upheld – Tennessee

In Alicia Hunt v. Dillard’s Inc., a manager of a makeup counter was denied surgery when her work-related ankle and knee injury did not heal. While working with restrictions, she said her supervisor pressured her to take a lower paying job. She resigned, had surgery, and sought to get her job back, but the company indicated she had voluntarily quit.

A trial court judge’s decision that the worker was pressured to resign and had not had a meaningful return to work at a wage equal to or above her pre-injury wage, was upheld by the Supreme Court. Therefore, she was entitled to permanent partial disability benefits up to six times the medical impairment rating, not, as argued by Dillard’s, the cap of 1.5 times the impairment rating when there is a meaningful return to work.

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Legal Corner

EEOC settles suit with New York Con Ed for $800,000

New York City and Westchester County’s electricity and gas utility, Consolidated Edison Co. of New York Inc., will pay $800,000 to resolve a disability discrimination suit under the ADA. The EEOC said Con Ed’s doctors violated the ADA by refusing to medically approve qualified applicants to begin employment because of their disabilities, even though they could perform the jobs for which they applied, and by performing medical exams of applicants without first giving them a conditional job offer. The EEOC said also the utility’s doctors imposed improper medical restrictions on some existing employees with disabilities that reduced their earnings and, in one case, led to termination.

Workers’ Compensation

Exclusive remedy bars health care worker from suing employer for patient attack – California

In Mendiola v. Crestwood Behavioral Health, a health care worker contended her employer did not inform staff about a patient who had a history of attacking women and had misrepresented her job duties. The court said that all of her claims, whether based on misrepresentation or concealment, were related to workplace safety and, thus, were covered by the exclusive remedy of workers’ comp.

Insurance companies can recoup benefits from third-party award – California

In Duncan v. WalMart Stores Inc., an employee of a marketing firm fell and injured herself while on business in WalMart. The marketing firm’s insurer, The Hartford, paid roughly $115,000 for medical care and $37,000 in indemnity benefits. The individual successfully sued WalMart and WalMart was ordered to pay her $355,000, which went toward reimbursing her for medical expenses, and pain and suffering. Then,The Hartford sought to take $152,000 from her award.

Her attorneys argued that she hadn’t been awarded wage-loss benefits, so The Hartford wasn’t entitled to take money to reimburse the indemnity benefits it had paid. However, the court followed the legal precedent that allows employers and carriers to seek reimbursement for their workers’ compensation expenses “totally separate and apart from the injured worker’s actions.” The court wrote that allowing insurance companies to recoup their expenses before workers get a chance to see the award is “consistent with the overall purpose of the workers’ compensation system” because of the quid pro quo the system is founded upon.

Exempt corporate officer of subcontractor cannot sue general contractor – Florida

In Gladden v. Fisher Thomas, Inc., an officer of a Florida corporation, who elected to be exempt from workers’ compensation coverage and who was hired by a subcontractor on a construction project, may not sue the general contractor and other subcontractors in tort for the serious injuries he sustained when he fell from the second floor. The trial court concluded the officer was an “employee” under the Workers’ Compensation Law at the time of the accident, notwithstanding his exemption. The defendants were, therefore, entitled to workers’ compensation immunity.

Upon appeal, the court noted that electing the corporate officer exemption did not remove the officer from the entire workers’ compensation scheme and open the door to actions in tort against individuals and entities who would otherwise be entitled to workers’ compensation immunity.

Standards for expert witness testimony in FELA same as personal injury cases – Georgia

In Smith v. CSX Transportation, the Court of Appeals ruled that the same statutory standard for evaluating the reliability of an expert witness applies in cases brought under the Federal Employers Liability Act (FELA) as in any other personal injury case. An employee, who had filed workers’ comp cases for a back injury, a right knee injury and carpal tunnel syndrome in both hands over his 32-year career, filed suit against his company when he developed pain in his shoulders.

He claimed the company had violated the FELA by exposing him to “harmful repetitive motion, cumulative trauma, awkward work postures, vibration and other harmful conditions” that resulted in injuries to both shoulders. His claim was supported by a doctor whom the judge determined did not present reliable evidence.

The Georgia Court of Appeals said it was not an abuse of discretion for the trial judge to exclude the doctor’s testimony from evidence. Although FELA relaxes the standard of causation that would otherwise apply in personal injury cases, the court said that doesn’t mean the standard for evaluating the admissibility of expert testimony is similarly relaxed.

Second Injury Fund shares in the liability for back injury – Missouri

In Barnes v. Treasurer, an employee of an airport parking and shuttle company injured his back in 2009 and returned to work without restrictions. He asked to receive additional care, but was refused and began seeing a chiropractor and neurosurgeon, who recommended surgery. When the company refused to pay, he went through his private insurance, but only received authorization for one-level fusion, even though the doctor had recommended a two-level fusion. Following the surgery, the doctor imposed strict limits on his activity and the company eventually terminated him and he has not worked since.

This was not the first time he had injured his back; in 2000, at another employer, he suffered a back injury in a motor vehicle accident. There were two experts who opined that the permanent and total disability was a result of the last work injury, and there was one expert who opined that at least some of the disability was attributable to the 2000 accident. While a judge ruled that the company was liable for 100% of the costs, the Labor and Industrial Relations Commission disagreed, finding he was disabled by the combined effect of his pre-existing disabilities and the 2009 back injury.

Benefits allowed for staph infection related to epidural injections for lumbar injury – Mississippi

In Lowe’s Home Ctrs., LLC v. Scott, an appellate court noted weighing of the evidence, including expert testimony, was the responsibility of the Workers’ Compensation Commission. The Commission had given greater weight to the testimony of the employee’s medical expert who opined that, more likely than not, the worker’s staph infection was causally connected to epidural injections the worker received as treatment for a work-related back injury, and, thus, the decision to award benefits will stand.

Standards for evaluating appropriateness of vocational rehabilitation plans set by high court – Nebraska

In Anderson v. EMCOR Group, an injured employee had reached maximum medical improvement and was entitled to a vocational rehabilitation evaluation. The counselor determined that the company had no jobs appropriate for the worker and an Internet search of appropriate jobs revealed a much lower pay scale. The counselor, therefore, recommended a vocational training program. The Workers’ Compensation Court ordered the implementation of the plan, the company appealed, and the case ended up in the Supreme Court.

The Court noted that the purpose of the Workers’ Compensation Act is the restoration of an injured employee to gainful employment, although, it acknowledged it has never defined what it means to restore a worker to suitable or gainful employment. Having cited Alabama case law in previous decisions, the Court adopted the definitions used in Alabama, which provide that “restore” means “to put back.” Since the plan was geared toward putting the injured worker back to employment paying wages similar to those earned prior to the injury and in a field that would be compatible with his age, education and aptitude, the Supreme Court said approval of the plan was not “clearly wrong.”

Worker with PTSD entitled to further disability – New York

In the Matter of Perez v. SN Gold Corp, an employee of a jewelry manufacturer was robbed at gunpoint. It was found he was entitled to PTSD benefits. Later, a WC judge and The Workers’ Compensation Board found the employee had a further causally related disability. The company appealed, but the court found substantial evidence to support the finding and noted it found no error in the exclusion of the independent medical examiner’s report at the proceedings because the company had failed to comply with the law, which required that a copy of an IME report be provided to a worker’s treating doctor on the same day that the worker, the board and the employer’s insurance carrier receive it.

Property owner and general contractor liable for fall from scaffold – New York

In Yaucan v. Hawthorne Village, a New York appellate court ruled that a property owner and general contractor were liable under Labor Law Section 240(1) for a construction worker’s fall from a scaffold, and that they were not entitled to summary judgment dismissing the worker’s Section 241(6) claim. The injured employee who fell from the third floor claimed the scaffolding shifted when it was hit by a large piece of material and, although he wore a safety harness and lifeline, it was too long to stop him from hitting the ground. The court said the employee was entitled to summary judgment on his Section 240(1) claim, since he established that he was not provided with adequate safety equipment to prevent him from falling and it was the owners and general contractor’s duty to provide the safety devices necessary to protect workers from the risks inherent in elevated work sites.

Time limits for filing claims against guaranty fund upheld – North Carolina

In Booth v. Hackney Acquisition Co., an employee who died from lung cancer in 2008 worked for a company whose Workers’ Comp carrier was declared insolvent in 2003. His widow asserted the cancer was caused by his exposure to welding rod fumes during the course of his employment and filed a claim with the Insurance Guaranty Association. There are two sections of the statute that set time limits for such claims, but the widow contended the statutes violate principles of due process and equal protection for workers with occupational diseases that do not manifest within the time limits. The Court of Appeals, however, found both sections constitutionally valid, since they further the state’s legitimate interest in protecting the integrity of the guaranty fund.

Ambulatory surgery centers subject to same fee schedules as hospitals – North Carolina

The North Carolina Court of Appeals ruled that Ambulatory Surgery Centers (ASC) are not separate and legally distinct from hospitals, overturning a Wake County Superior Court decision that invalidated a new Medicare-based fee schedule for ASCs.

Employer who alleged violation of safety rules led to fatality must pay benefits to widow – Pennsylvania

In M.A. Beech Corp. v. WCAB (Mann), a bridge inspector suffered a fatal injury when he was pinned between an aerial lift and the beam of an overpass. While the company contended that the use of the lift had been a violation of the company’s safety rules, lower courts awarded benefits to the injured employee’s widow.

Upon appeal, the Commonwealth Court noted a company that relies on an alleged violation of safety rules must prove that the worker’s injury was caused by the violation of the rule, that the worker knew of the rule, and that the worker was engaged in an activity that was wholly foreign to his employment. The court did not find sufficient evidence that a safety rule was violated and also noted it was appropriate to grant benefits to the widow, since her husband was attempting to perform his duties as an inspector at the time of his fatal accident.

Widow receives benefits for unknown occupational exposure – Tennessee

The Supreme Court’s Workers’ Compensation Panel upheld an award of death benefits to a steelworker’s widow whose husband went to Stockertown, Pennsylvania, to work on an installation project at a cement plant and suddenly became very ill. Although he sought treatment at a walk-in clinic, his condition deteriorated and he was hospitalized and went into a coma. Doctors suspected he had pneumonia and septic shock, a serious infection that affects organ function and transferred him to another hospital, but en route he had a heart attack. He died a month later.

The widow petitioned for death benefits, arguing her husband had inhaled something on the job that caused his sudden decline and the treating physicians supported her argument. The trial court ruled, and the Supreme Court of Tennessee Special Workers’ Compensation Appeals Panel upheld in the widow’s favor.

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Legal Corner

Another court decision scales back right to take more leave after exhausting FMLA

Last month, we reported on the 7th US Circuit Appeals decision in the Severson case. That same appellate court recently ruled in Golden v. IHA that extended leave beyond what the FMLA requires is not a reasonable accommodation under the ADA.

In this case, an employee with breast cancer, required surgery and an extended leave. When her 12 weeks of FMLA leave was about to expire, she sought an unspecified period of leave, but her employer declined to grant more than four additional weeks of leave. When she could not return from work after 16 weeks off, she was terminated.

It’s important to note that in both cases the employee’s return to work date was unclear. Employers should conduct an individualized assessment of each leave request to determine whether a leave of absence or intermittent leave is reasonable and effective in helping the employee return to work. There is a split in authority among the courts that the U.S. Supreme Court ultimately may have to resolve.


Managers’ inaction can be costly

In Boadi v. Center for Human Development an employee was hospitalized unexpectedly for a mental health condition and her son notified her employer four times over the course of one week, including her supervisor, the supervisor’s boss, and the boss’s boss. Although he explained that his mother was unintelligible, a supervisor told him it was unacceptable for him to call instead of his mother. The same supervisor informed the vice president of Human Resources that the employee was hospitalized and later reported her a “no call/no show” when she failed to personally call about her continued absences. A termination letter was written and when the employee returned with her doctor’s medical certification, she was told her employment had been terminated because she abandoned her job.

During the case, the court specifically commented that the managers were “not trained on the FMLA.” Noting the lack of training, the court found that the employer willfully violated the FMLA, and awarded liquidated damages, which doubled the back-pay award to $300,000.


Workers’ Compensation
Comp’s ‘going and coming’ rule determines employer’s vicarious liability – California

In Morales-Simental v. Genentech, the court explained that an employer generally will be held vicariously liable for the tortious conduct of its employees within the scope of their employment. However, case law recognizes that an employee commuting to or from work is typically outside the scope of employment, and the employer is not liable for the employee’s torts while traveling. There are some exceptions, but the court found they did not apply and, therefore, the employer could not be held vicariously liable for the alleged negligence of an employee in causing a fatal car accident.

Convicted of fraud, worker still entitled to benefits – California

In Pearson Ford v. WCAB (Hernandez), a worker accidentally slammed a trunk lid on his hand, but did not break any bones. He received workers’ comp for pain and later began wearing a sling and telling his treatment providers that he was unable to use his left arm and hand. A private investigator shot video of him removing his sling after attending doctor’s appointments, using his left hand to drive, carrying groceries, and lifting a washing machine. He pleaded guilty to making materially false statements for the purpose of obtaining workers’ compensation benefits.

Later, a workers’ compensation judge issued, and the Appeals Board approved, an award of permanent partial disability benefits. The court reasoned there was a compensable injury that was not directly connected to the worker’s fraudulent misrepresentation.

Failure to train in lockout/tagout leads to $310,000 settlement – California

Growers Street Cooling has agreed to pay $310,000 in costs and civil penalties, maintain and implement written hazardous energy control procedures, and conduct proper training as a result of legal action brought by the Monterey County District Attorney following a 2013 worker fatality at the Salinas-based produce-cooling company. The worker had been working at the company as a machine operator for only 16 days prior to the accident and was never trained on lockout/tagout procedures. Nor did the company maintain a written lockout/tagout policy or training program; thus, they were charged with systematically violating worker safety laws.

Comp coverage uncertain for off-duty police officers at Las Vegas concert shooting – California

Due to some muddy language in the state’s Labor Code, it is uncertain if municipalities are required or even allowed to pay to treat off-duty police who chose independently to intervene in an out-of-state emergency. Orange County rejected workers’ compensation claims from four sheriff’s deputies injured in the shooting and more claims are expected. More than 200 Southern California police officers attended the Las Vegas concert. Had the incident occurred in California, they would be covered, but the Labor Code makes no mention of out-of-state tragedies.

Employer can terminate benefits when employee returns to “baseline” – Georgia

In EMC v. McDuffie, an employee had a significant disability to his knee at the time he took the job, which he did not disclose, and he suffered a subsequent knee injury when he stepped in a hole while working. The Supreme Court ruled that when an employee has a pre-existing condition that limits work capacity, as soon as the employee recovers from “the aggravation”, the employer’s responsibility for workers’ compensation ceases. The court did not define baseline.

This is an important decision because it’s well established that employers are responsible for an aggravation of a pre-existing condition only until the aggravation ends, but there wasn’t a case that said when an employee still has restrictions, which they had before, the employer is not responsible.

Meretricious relationship results in disqualification of death benefits – Georgia

In Sanchez v. Carter, a state appellate court cited a 1990 decision of the Supreme Court of Georgia, Williams v. Corbett, and found within the context of a workers’ compensation claim, a meretricious relationship does not entitle a dependent to death benefits, even if actual dependency exists. In this case, the couple had lived together for 13 years, but never legally married.

Court reduces award in retaliatory discharge claim – Illinois

Two employees suffered work-related injuries and were fired for failing to report to work after an independent medical examiner (IME) cleared them to return to their jobs. They filed suit, asserting they had been discharged in retaliation for having pursued workers’ compensation claims. The Illinois Appellate Court ruled that an employer may not rely solely on an IME in terminating the employee for failing to return to work or for failing to call in his absences when the opinion conflicts with the employee’s doctor. But, the worker must still prove his discharge was causally related to his exercising of workers’ compensation rights.

The men then filed an amended complaint and pursued separate jury trials. While a jury found in favor of the employer in one case, in Francek v. Dominick’s Finer Foods, the jury awarded $156,315.50 in compensatory damages and $2.5 million in punitive damages, plus court costs to the employee. However, the appellate court concluded that the award of punitive damages was unconstitutionally excessive (16:1) under federal due process standard and concluded that a 9:1 ratio would be appropriate.

Workers’ comp precludes security’s guard personal injury suit – Missouri

In Kayden v. Ford Motor Co., U.S. Security Associates provided security services under a contract for a Ford assembly plant. A security guard slipped and fell in the parking lot, where it was determined a pothole was not repaired properly. After she filed a personal injury suit against Ford, Ford moved for summary judgment, asserting that it qualified as the employer for purposes of the Missouri Workers’ Compensation Act and the court agreed.

Exception to schedule loss of use (SLU) allows apportionment – New York

While generally a judge or board may not apportion a PPD award based upon a preexisting condition that did not prevent the employee from effectively performing his or her job duties at the time of a subsequent work-related injury, apportionment may be applicable if the medical evidence establishes that the prior injury – had it been compensable – would have resulted in an SLU finding. In the Matter of the Claim of Sanchez v. STS Steel, there was medical expert opinion that a non-work related surgical procedure involving the excision of the meniscus right knee would have resulted in a 7.5% SLU; therefore, apportionment was appropriate.

Estate can pursue wrongful death claim – New York

In Assevero v. Hamilton & Church Properties, an employee fell from a ladder and filed a Labor Law action asserting an unsecured extension ladder shifted as he was descending and caused the fall. A trial judge granted summary judgement to the employer, and the employee appealed. While the appeal was pending, the employee died from an overdose of pain medication prescribed for his injuries. The Appellate Division’s 2nd Department overturned the grant of summary judgment for the employer and the estate’s administrator filed a motion to amend the complaint to include a cause of action for wrongful death, which was allowed.

Widow of worker killed by street sweeper awarded $41.5m – New York

The widow of a New York City Department of Sanitation worker killed by an out-of-control street sweeper won a $41.5 million negligence lawsuit. The New York Post reports that a Queens jury recently awarded the sum to the widow for the death of her 43-year-old husband who was struck and killed by a colleague’s vehicle inside a garage in 2014. The city plans to pursue legal options to reduce the award.

Death from accidental overdose compensable – North Carolina

In Brady v. Best Buy Co., an injured worker was taking narcotics to treat his compensable low back injury, additional medication for treatment of depression, and other prescription medications. The Court of Appeals upheld a reward of benefits to the beneficiaries noting the unchallenged finding that pain medications established the death as compensable, regardless of whether his medications for depression had a contributory effect.

Going and coming rule does not bar death benefits in case of donut shop manager – Pennsylvania

In Rana v. Workers’ Comp. Appeal Bd, an employee worked as a manager at one of the employer’s three donut shops, but occasionally was called upon to handle issues at the other two shops. He died in a car crash traveling from his residence to one of the other shops to potentially fill in for a kitchen employee who had fallen ill during a work shift. The court found that the manager was a traveling employee and, therefore, his dependent’s death benefits claim was not barred by the going and coming rule. It also noted even if he was considered a stationary employee, the claim would still be compensable, since he was engaged in a special assignment on behalf of the employer.

Commonwealth Court overturns denial of benefits based on ‘going and coming’ rule – Pennsylvania

In Fields v. WCAB (Carl G’s Total Cleanouts), an employee had been working at the same job site doing demolition work for two or three weeks. He and a colleague took a company truck to drop off debris at a scrapyard (they received a percentage of the metal hauled as part of wages) and then the colleague planned to drop the employee at home and return the truck to the employer. En route, the employee sustained injuries in an auto accident. A workers’ compensation judge determined, and the Workers’ Compensation Appeal Board affirmed, that he had a fixed place of work, and the accident occurred during his commute home from the workplace, and was not compensable under the going and coming rule.

Upon appeal, the Commonwealth Court noted exceptions to the going and coming rule include when a worker’s employment contract includes transportation to and from work; when the worker has no fixed place of work; when the worker is on a special mission for his employer; or when the worker’s travel is furthering the business of the employer. While the lower courts focused on the fixed place of employment, the facts supported a legal conclusion that he was furthering his employer’s business when he was injured – to dispose of the material the crew had cleaned out of the job site.

Witnessing workplace shooting caused PTSD – Tennessee

In Evans v. Alliance Healthcare Services, a bus driver was transporting a counselor to a patient’s home in response to a call from the patient’s brother. As they entered the house, the patient shot the counselor. While the counselor survived the attack, the bus driver received mental health care through workers’ compensation but she did not return to work.

The company acknowledged that the shooting initially may have caused the PTSD, but asserted the continuing mental health problems were caused by other events. The trial court disagreed and found she was permanently and totally disabled and that the shooting incident was the cause of her disability. This was upheld by the Special Workers’ Compensation Appeals Panel of the Supreme Court.

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Legal Corner

Extended leave not reasonable accommodation for employee who exhausted FMLA leave – 7th Circuit U.S. Court of Appeals

In Severson v. Heartland Woodcraft, an employee who worked a demanding job in spite of a degenerative spine condition injured his back at home and took a 12-week medical leave under the FMLA. On the last day of his leave, he had back surgery and asked for two or three more months to recover. It was denied and the employee filed suit under the ADA. A district court judge found in favor of the employer and, upon appeal, the 7th Circuit Court of Appeals noted “If the proposed accommodation does not make it possible for the employee to perform his job, then the employee is not a ‘qualified individual'” as is defined in the ADA.

In so doing, the court reaffirmed a 2003 decision in Byrne v. Avon Products and rejected the Equal Employment Opportunity’s Commission’s request to revisit the decision.
Workers’ Comp settlement doesn’t bar FMLA lawsuit against employer – 3rd Circuit Court of Appeals

In Zuber v. Boscov’s, an employee injured on the job missed two days of work and when he returned to work requested a week of FMLA leave, which was granted. About a month later, he was fired and filed suit that the company interfered with his rights under the FMLA, and that it had retaliated against him for filing his workers’ compensation claim.

The company argued that the employee waived his FMLA and common law rights in settling his comp claim and a district judge agreed. However, the Third Circuit found the language of the agreement, which stated that it was a final resolution of the work injury claim ‘and its sequela,’ doesn’t necessarily disallow a FMLA suit. Signing the agreement meant he could not bring a future workers’ compensation claim, but didn’t prohibit him from bringing FMLA or Pennsylvania common law claims.

Workers’ Compensation
Workers’ Compensation disability findings not binding in Social Security disability claim – United States

In Derosia v. Colvin, a federal district court found that an Administrative Law Judge (ALJ) had not erred in denying a claim for Social Security Disability Insurance Benefits. It is well accepted that Workers’ Compensation guidelines do not necessarily coincide with federal disability regulations and are not binding. However, the ALJ noted none of the workers’ compensation treating providers focused on work-related functions; rather, they provided statements concerning her ability to return to work.

Court clarifies length of psych benefits related to workplace injuries – Florida

In Utopia Home Care v. Alvarez, an employee was diagnosed with major depressive disorder after suffering a severe shoulder injury at work, but did not decide to seek indemnity benefits for her depression until almost two years after she reached MMI. A judge of compensation ruled that she was entitled to the benefits, believing that she could collect six months’ worth of psychiatric benefits anytime after reaching MMI, however the 1st DCA overturned the ruling. When a worker reaches maximum medical improvement, it “starts a clock” on remaining psychiatric benefits “that stops six months to the day after the date of physical MMI,” the court wrote.

Trial judge erred in overturning denial of authorization for surgery – Georgia

In Autozone v. Mesa, a delivery driver suffered injuries when a vehicle struck her delivery truck from behind. After a doctor cleared her to return to work, she continued to complain of back pain and underwent several MRIs. Four doctors found no abnormalities, but a fifth doctor, while finding no disc herniations or significant desiccation, recommended a surgical sacroiliac joint fusion. An independent medical evaluator disagreed.

An ALJ found that the sacroiliac surgery was not reasonable or necessary and the State Board of Workers’ Compensation agreed. A superior court judge later reversed the Board, finding the record contained “no objective medical evidence” that the proposed surgery was not reasonably required. However, the Court of Appeals said there was substantial competent evidence to deny the surgery and that the judge improperly took on the role of “fact finder”.

Pastor’s salary cannot be included in weekly wage calculations – Illinois

A worker at Nestle USA suffered two serious work-related injuries that led to temporary total disability benefits, temporary partial disability benefits, and medical expenses as well as wage differential benefits. During the time of his injuries, he also worked as a pastor and received a $600 per week housing allowance; however, the employer was not aware that he was being compensated, although they knew of the job. The 4th District Court of Appeals upheld earlier decisions, saying that his employer did not know he was being compensated for his duties as a pastor; therefore, his job as a pastor could not be included in the weekly wage calculations.

Slip and fall on wet pavement in employer’s parking lot not compensable – Illinois

In Dukich v. Illinois Workers’ Comp. Comm’n, an appellate court found that an employee who slipped and fell in a wet parking lot could not collect workers’ comp. The parking lot was clear of ice and snow and had no defects that caused the fall; therefore, the slip and fall accident arose from an activity of daily living. There was also no evidence that the employee was rushing to complete a work task or carrying items required for her work.

Requirements for employer to terminate rehabilitation clarified – Minnesota

In Halvorson v. B&F Fastener Supply, an employee injured her right elbow and knee and was awarded benefits that included rehabilitation. She took a part-time job with another employer and B&F Fastener Supply took steps to end the rehabilitation services. A compensation judge granted B&F’s request to discontinue rehabilitation services, but the Court of Appeals and the Supreme Court disagreed.

The company relied upon the argument that she no longer met the definition of a “qualified employee” under Minnesota Administrative Rule 5220.0100. But the court noted this rule does not provide an independent mechanism for an employer to terminate rehabilitation benefits. It also rejected the argument that a compensation judge could review, approve, modify or reject rehabilitation plans, noting this only applied to initial plan reviews.

Plan modification or termination may be accomplished only by meeting the requirements of Minn. Stat. § 176.102, subd. 8(a), which provides a nonexclusive list of reasons for terminating rehabilitation services under the good-cause standard, including “that the employee is not likely to benefit from further rehabilitation services.” The company acknowledged this might have been a better approach, since it could be argued her return to part-time employment eliminated the need for further rehabilitation services.

Testimony of worker’s colleagues leads to denial of claim – Mississippi

In Walker v. Kinder Morgan, an employee had a long history of back pain, which he had not shared with his employer. He was in a non-work motor vehicle accident and had to stay out of work because he was taking a muscle relaxer and pain medication and the employer did not allow mood-altering drugs. The day he returned to work, he said he experienced a sharp pain in his back, but did not report an injury because he had just returned to work. After a few days, he reported the injury and sought care from his family doctor, who recommended surgery.

While an administrative judge found the injury compensable, the Workers’ Compensation Commission reversed and was upheld by the Court of Appeals. It found the testimony of coworkers, which raised question if he was involved in horse play, how much pain he was in, and whether the pain was a result of the car accident, more compelling.

Standard for compensability of psyche injuries clarified – Missouri

In Mantia v. Missouri Department of Transportation, the Supreme Court unanimously overturned an award of benefits to a worker for her psychological injuries from witnessing horrific accidents on the state’s highways, saying she needed to prove her distress was “extraordinary and unusual” as compared to other similarly situated employees. According to her testimony on average, at least one accident a week involved a fatality and she graphically described some horrific scenes. She had worked for the Transportation Department for 20 years and had begun suffering from panic attacks and nightmares. She acknowledged her co-workers witnessed similar gruesome accidents, but they sometimes joked about it.

In reversing earlier decisions, the Supreme Court explained that Section 287.120.8 of the Workers’ Compensation Law limits the availability of benefits for mental injuries to those that are caused by work related-stress that is “extraordinary and unusual.” The court decided that the appropriate objective standard for determining whether the stress was compensable was “whether the same or similar actual work events would cause a reasonable highway worker extraordinary and unusual stress.”

Blind worker’s volunteer activities did not warrant misrepresentation and forfeiture of benefits – New York

In the Matter of Eardley v. Unatego Central Sch. Dist., a janitor injured his right shoulder and neck and a WCJ found he was entitled to permanent total disability benefits. A surveillance video showed the employee walking around at a concession, helping to move a popcorn machine, and, on a separate occasion, helping his disabled daughter take money at a secondary admission for a non-profit’s football event.

After viewing the video footage, the school district accused him of having violated Workers’ Compensation Law Section 114-a(1), which provides for the forfeiture of a benefits if the worker has knowingly made a false statement or representation of material fact in order to secure the payment of benefits. A WCJ found that he had not violated Section 114-a(1), since the video footage did not demonstrate he had the ability to work, finding that such activities were minimal and not inconsistent with the representations that the employee made to the insurance carrier. This was upheld on further appeals.

Summary judgment on claim for fall overturned – New York

In Valente v. Lend Lease (US) Construction LMB, a construction worker slipped and fell on grease that had gotten on to the planks he was using as a makeshift ramp to descend five feet from the top of a building to a scaffold. A Supreme Court Justice and the Appellate Division’s 1st Department granted partial summary judgment, finding Valente’s fall was “the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential.” However, the Court of Appeals noted the testimony of the foreman conflicted with the employee’s claim about the safety devices available and, therefore, raised question as to whether the employee’s conduct was the sole proximate cause of the accident. The case was reversed and remanded.

Veteran airline mechanic entitled only to disability benefits based on federal minimum wage – North Carolina

In Myres v. Strom Aviation, an employee of an employment agency providing contract labor or temporary staffing to companies in the aerospace and aviation industry injured his ankle and a received 25% permanent partial disability rating. Several months after returning to work, he stopped working because of ankle pain. While working for the agency he received per diem payments as well as a wage. A deputy commissioner determined that the per diem payments were for business-related living expenses, not payments made in lieu of wages and the Court of Appeals agreed.

Without the per diem payments, his hourly rate of pay was $7.25, the federal minimum wage. Although the court recognized “it seems obvious that an aircraft mechanic with specialized training and over 20 years of experience would be paid far more than minimum wage,” it suggested the arrangement had benefits to both parties, but is a problem when an injury occurs.

Presumption of causal relation does not apply, but claims compensable – North Carolina

In Pine v. Wal-Mart Associates, a Wal-Mart employee tripped and fell and Wal-Mart accepted liability for injuries to her right shoulder and arm, but it denied liability for her other alleged medical conditions. The Industrial Commission said it was Wal-Mart’s burden to prove all the injuries were not causally related to her fall, since Wal-Mart had accepted liability for the injury to the right shoulder and arm.

This past summer the General Assembly abrogated the Supreme Court’s decision that an admission of compensability by an employer gives rise to a presumption that additional medical treatment received by a worker is causally related to the compensable injury. The Court of Appeals said the statutory amendment applied to this case, since the amendment applied to all claims “accrued or pending prior to, on, or after” the date on which the amendment became law. However, the court, in a divided opinion, found that the worker proved her injuries were causally related to her accident.

Terms of settlement extend employer’s obligation to treatment of condition it did not accept – Pennsylvania

In Haslam v. WCAB (London Grove Communication) an employee suffered multiple injuries and the company entered into an agreement accepting liability for fractures of the right and left feet, and it settled the indemnity portion of workers’ compensation claim for a lump sum of $110,000. The employee was taking compound medication prescriptions for complex regional pain syndrome and the company filed a request for a utilization review (UR), since this was a condition for which it had not accepted liability.

After a series of appeals, the Commonwealth Court ruled the UR process is the proper method for determining whether disputed treatment is reasonable and necessary, but it is not the proper method to determine the cause of an injury or condition shown in a settlement agreement. The court explained that once a settlement agreement is approved by a WCJ, it is final and binding on the parties, unless there is fraud, deception, duress or mistakes.

The court wrote, “In this case, Employer accepted responsibility for treatment for Claimant’s fractured feet. Thereafter, Claimant sought treatment for pain in those feet. There exists an obvious connection between the injury and the pain. For Employer to avoid responsibility for the medical expenses resulting from treatment of the pain in Claimant’s feet, Employer must prove that the treatment is for an injury that is distinct from the acknowledged injury.”

Retaliation claim fails when employee cannot prove he intended to file comp claim – Pennsylvania

In Runion v. Equipment Transport, LLC, a federal district court construing Pennsylvania law, found that a former employee, who undisputedly suffered a work-related injury, had not established a prima facie case of retaliatory discharge. He had not filed a workers’ comp claim and the employer contended the dismissal was on unrelated grounds. While the former employee argued he had told his employer he intended to file a claim, he offered no support to corroborate his claim. In denying the retaliation charge, the court relied on findings in an earlier case that the worker must (1) report the work-related injury and (2) express the “intent to file” a workers’ compensation claim to the employer in order to trigger the protection of the public policy exception.

Award for disability and last employer’s liability for 90% upheld – Tennessee

In Gibson v. Southwest Tennessee Electric Membership Corp., an employee injured his back, reached a settlement, and returned to work. He continued to experience pain and a few months later his doctor took him off work and declared him to be permanently disabled. When a petition to modify his settlement was filed, a trial judge found the combined effects of his injury and pre-existing medical conditions permanently and totally disabled him. The judge assessed 90% of the liability to Southwest, and the remaining 10% to the Tennessee second Injury Fund and the Supreme Court’s Special Workers’ Compensation Appeals Panel agreed. In so doing, it noted that he is no longer able to walk for exercise, that he cannot work, that he takes pain medication and muscle relaxers, and that he has no other vocational skills or training, but he was able to work with no restrictions prior to his injury.

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EEOC ordered to reconsider wellness rules

The Equal Employment Opportunity Commission’s (EEOC’s) rules about the fees employers can assess workers who do not participate in wellness programs were ruled arbitrary by the U.S. District Court for the District of Columbia on Aug. 22. Rather than vacate the rules, the court sent them back to the agency for redrafting. The court’s decision does not vacate the EEOC rules and employers are obligated to comply with existing rules, but should be alert to future changes.

Work conditions ‘unpleasant, potentially hazardous’ for more than half of Americans: study

Nearly 55 percent of American workers claim they encounter “unpleasant and potentially hazardous” conditions on the job, according to a study from nonprofit research institute RAND Corp., Harvard Medical School, and the University of California, Los Angeles. Nearly 1 in 5 workers reported exposure to a “hostile or threatening social environment at work” and 1 in 4 said they do not have enough time to complete job tasks.

National survey on fatigue indicates it is a hidden, but potentially deadly workplace epidemic

Some 43 percent of Americans say they do not get enough sleep to mitigate critical risks that can jeopardize safety at work and on the roads, including the ability to think clearly, make informed decisions, and be productive, according to a new National Safety Council survey-based report, Fatigue in the Workplace: Causes & Consequences of Employee Fatigue. An estimated 13 percent of workplace injuries could be attributed to fatigue.

CDC launches website on worker wellness programs

To help employers start or expand employee health promotion programs, the Centers for Disease Control and Prevention has created the Workplace Health Resource Center website.

New app from NIOSH: Lifting Equation Calculator

In an effort to prevent work-related musculoskeletal disorders, NIOSH has released a mobile app based on the Revised NIOSH Lifting Equation, an internationally recognized standard for safe manual lifting.

Updated ergo guide from NIOSH offers strategies for preventing MSDs

The NIOSH Musculoskeletal Disorders Research Program has updated its guidance document on the formation and function of ergonomics programs. Intended for both workers and employers, it provides strategies for identifying and correcting ergonomic hazards, as well as references, forms and questionnaires.

Guide offers best practices for safely using bleach to clean and sanitize

A new safety guide published by the Michigan State University College of Human Medicine, Occupational and Environmental Medicine Division offers best practices for workers exposed to bleach, including janitors, housekeepers, environmental engineers, and hospital, restaurant, maintenance and agricultural workers.

FMCSA, FRA withdraw rulemaking on sleep apnea

The Federal Motor Carrier Safety Administration and the Federal Railroad Administration have withdrawn an advance notice of proposed rulemaking on obstructive sleep apnea. “The agencies … believe that current safety programs and FRA’s rulemaking addressing fatigue risk management are the appropriate avenues to address OSA,” FMCSA and FRA stated in a notice published in the Aug. 4 Federal Register.

Operation Safe Driver Week set for mid-October

Law enforcement officers are expected to keep a particularly sharp eye on the roads Oct. 15-21 during the Commercial Vehicle Safety Alliance’s Operation Safe Driver Week. Officers will be looking for commercial motor vehicle and passenger vehicle drivers engaging in dangerous behaviors such as speeding, texting, following too closely and not wearing seat belts.

Opioids updates

  • One in 12 US physicians received a payment involving an opioid during a 29-month study of pharmaceutical industry influences on opioid prescribing, according to researchers who will publish their findings in September’s American Journal of Public Health. During the study, 375,266 non-research opioid-related payments were made to 68,177 physicians, totaling $46,158,388.
  • A study from the Worker’s Compensation Research Institute examines the prevalence and trends of longer-term dispensing of opioids in 26 state workers’ compensation systems. It also documents how often the services (i.e., drug testing, psychological evaluation, and treatment, etc.) recommended by treatment guidelines were used for managing chronic opioid therapy.

Study casts doubts on effectiveness of marijuana in combatting chronic pain

Research funded by the U.S. Department of Veterans Affairs was published on the Annals of Internal Medicine website. Limited evidence suggests that cannabis may alleviate neuropathic pain in some patients, but insufficient evidence exists for other types of chronic pain. There was also sufficient evidence to conclude that cannabis use among the general population probably increased the risk of car accidents, psychotic symptoms, and short-term cognitive impairment. It was noted more research is needed.

CSB releases animated video on Louisiana refinery fire

The Chemical Safety Board has released an animated video that examines the cause of last year’s ExxonMobil refinery fire, which severely burned four workers in Baton Rouge, LA.

State News


  • New regulations aimed at preventing incidents such as the 2012 Chevron Corp. fire at oil refineries will take effect Oct. 1.
  • Ratings bureau proposes small workers’ comp premium increase for 2018.
  • Workers’ comp bill safeguarding pregnant women put on hold.


  • NCCI recommends comp premium decrease of 9.6% effective Jan. 1, 2018.


  • The National Council on Compensation Insurance (NCCI) recommends a 10.9% workers’ compensation premium rate decrease for Illinois.
  • Governor vetoes state-funded comp insurance plan.


  • Effective August 1, patients with post-traumatic stress disorder can purchase medical marijuana.
  • Department of Labor and Industry adopted the final rule from the federal Occupational Safety and Health Administration about walking-working surfaces and personal fall-protection systems.

New York

  • Employers should prepare to comply with the Paid Family Leave that goes into effect Jan. 1, 2018.


  • The Compensation Rating Bureau filed an emergency 6.06% loss cost increase in the wake of a state Supreme Court decision that blocks impairment rating evaluations.


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Legal Corner

Company properly terminated teller using intermittent FMLA leave

In Walker v. J.P. Morgan Chase Bank N.A., the U.S. District Court for the Northern District of Illinois ruled that a bank teller who received intermittent leave for hypertension and requested removal of the notary duties of her job did not show Family and Medical Leave Act (FMLA) retaliation or interference in her firing. On her intermittent leave, she was permitted to come in late, leave early, or miss a day when she was not feeling well and acknowledged that she was never denied FMLA leave approval. She did not request an ADA accommodation.

While she was working she received low or unsatisfactory job performance reviews, warnings for overall unsatisfactory performance, including poor customer relationships and failure to follow procedures to protect confidentiality. She was fired approximately two years after she requested intermittent leave and filed suit.

The court found that she was terminated because of her performance failings, not because she took intermittent leave. The company had properly continued to enforce its progressive disciplinary policy during the period of intermittent leave.

Medical Marijuana
Medical marijuana user can sue employer that rescinded job offer based on pre-employment drug test – Connecticut

In Katelin Noffsinger v. SSC Niantic Operating Company L.L.C., doing business as Bride Brook Nursing and Rehabilitation Center, a recreational therapist who suffers from post-traumatic stress disorder was prescribed a capsule form of medicinal cannabis in 2015, which she ingests every evening to help her sleep. Prior to her pre-employment drug test, she informed her future employer that she took medical marijuana. One day before she was to start her new job, after she had quit her former employment, the rehabilitation center rescinded her job offer over a positive drug test.

The company argued that federal law, which bans the use of marijuana, preempts Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. The court disagreed and found the employee can sue the employer.

Workers’ Compensation
Exclusive remedy protects general and special employer – California

The family of a Fresno paramedic who was killed in an air ambulance helicopter crash filed a wrongful death suit against Rogers Helicopters and American Airborne, claiming they were negligent in the maintenance and operation of the helicopter. A general partnership, ROAM dba SkyLife, existed between the companies, and the helicopters used in this partnership were jointly owned.

If there are dual employers, the second or “special” employer may enjoy the same protection of “exclusive remedy” under workers’ comp as the first or “general” employer. The court found the death occurred during the course and scope of employment, therefore, the family is precluded from suing the companies.

Work comp exclusivity rule does not preempt claim for emotional distress under FEHA – California

In conflict with an earlier decision from Division Three, the Court of Appeal, 4th District, has affirmed that the workers’ compensation exclusivity rule does not preempt employees’ emotional distress claims arising from discrimination or retaliation in violation of the Fair Employment and Housing Act (FEHA). The case, Melony Light vs. California Department of Parks and Recreation, et al., revolved around a co-worker who alleged harassment by supervisors for support of a co-worker who took medical leave for stress arising from harassment by supervisors. The court noted that exclusive remedy provisions are not applicable under various circumstances, including from a risk not reasonably encompassed within the compensation bargain.

Employer may be liable for costs up until denial of claim – Florida

In Mathis v. Broward County School Board, a custodian, who is diabetic and had an abscess on her foot, reported a puncture injury to her foot. When the abscess worsened, she went to the hospital and was operated on for a staph infection.

When the school board denied the claim, the employee appealed, not questioning the denial of compensability but arguing the board was obligated to pay the $116,000 bill from the hospital, which was incurred before the claim was denied. The 1st District Court of Appeal overturned a judge’s finding that the employer wasn’t liable, noting if an employer elects to pay and investigate, then the law requires that it pay all benefits due “as if the claim had been accepted as compensable” until the date of denial. The case was remanded to consider the board’s defenses and if this constituted emergency care.

Comp sole remedy for alleged victim of sexual harassment – Illinois

In Nischan v. Stratosphere Quality, the U.S. 7th Circuit Court of Appeals ruled that workers’ compensation was the sole remedy for a worker’s claim of battery by a corporate representative of a client, but that she had asserted a viable claim against her employer for failing to protect her from the corporate representative’s allegedly harassing conduct.

The Chrysler Group was one of Stratosphere’s biggest clients, and she alleged that Chrysler’s liaison sexually harassed her. The court said the Workers’ Compensation Act barred the claim of battery, since the act is the exclusive remedy for accidental injuries transpiring in the workplace. “Injuries resulting from a coworker’s intentional tort are accidental from the employer’s perspective unless the employer commanded or expressly authorized the tort.”

Use of indefinite article in settlement agreement leads to award of benefits – Indiana

In Evansville Courier Company v. Mary Beth Uziekalla, an injured worker settled a workers’ compensation claim for a neck injury. The settlement agreement allowed a claim for change of condition, at which point she could seek a medical opinion from the independent medical examiner.

When she exercised the provision, the designated doctor declined to give a medical opinion, so the parties agreed on a neurosurgeon, who determined that the change in condition did not result from her work injury. However, the original neurosurgeon, who also examined her, came to the opposite conclusion. The appellate court rejected the argument that the board erred in admitting the second opinion since the use of the phrase “‘a’ procedure for resolving future change of condition claims,” does not mean the agreement established the only such procedure. Indeed, the use of the indefinite article contemplates the contrary.

Longshoreman can pursue both WC and LHWCA benefits – Minnesota

Unless states have laws on the books indicating otherwise, injured longshoremen may seek benefits under both workers’ comp and the federal Longshore and Harbor Workers’ Compensation Act. In Ansello v. Wisconsin Central Ltd., the state Supreme Court ruled that a workers’ compensation judge abused his discretion when he dismissed the case for lack of jurisdiction.

In a dual-jurisdiction case, benefits in both jurisdictions can be pursued, but can’t be collected at the same time. The Longshore Act is more generous than the state’s workers’ compensation and typically would be accessed for wage loss and any residual benefits not paid under the state’s system. The court noted there is no danger of double recovery under concurrent jurisdiction, since employer’s awards under one are credited against any recovery under the second.

Failure to administer drug and alcohol testing in timely manner to injured worker nixes denial of benefits – Mississippi

In McCall v. Sanderson Farms, an appellate court held that an injured worker should not have been denied workers’ compensation benefits because he failed to submit to a post-accident breathalyzer test. The injured worker waited for the breathalyzer technician to arrive at the employer’s premises for more than an hour and one-half following the incident, but pain forced him to leave and seek care at the hospital, where he passed a drug test but was not administered a blood alcohol test. According to the court, the employee had not denied the test.

Drug sentence insufficient to prove worker earned money from dealing drugs – New York

Under Work Comp. Law § 114-a, if a person makes a false statement or representation as to a material fact he or she shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In Pompeo v. Auction Direct USA LP, an injured worker who went to prison on drug-dealing charges would have lost his chance to resume collecting wage-replacement benefits after his release if his employer could prove he hid the drug-sale proceeds. However, the Board was within its powers to find that the criminal convictions alone were insufficient to establish that income had been received from the drug sales.

Widow gets death benefits for unwitnessed fall – New York

In Silvestri v. New York City Transit Authority, an appellate court ruled that a worker’s widow was entitled to benefits for his death from injuries caused by an unwitnessed fall at work that was never reported to his employer. He left prior to the start of the second overtime shift and witnesses said he was holding his stomach when he left, and that he had said he wasn’t feeling well.

His maintenance duties sometimes required him to repair subway cars while they were suspended over a pit that was 4 to 5 feet deep with a concrete floor, through the use of a ladder and he told his wife he had fallen off a ladder into “the pit” at work earlier that day. When he was having difficulty breathing and walking, he went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he was diagnosed with a ruptured spleen, as well as a punctured lung, and died in the hospital a day later.

While the presumption of compensability could not be used to establish that an accident actually occurred, the widow had established her claim without it.

Calculation of AWW must account for changes in wages, hours – North Carolina

In Ball v. Bayada Home Health Care, the Court of Appeals overturned the calculation of a worker’s average weekly wage that did not account for the fact that she switched from part-time to full-time employment, and that she worked more than three months after her injury at a higher rate of pay. After six months of part-time work, a nurse’s assistant took a full time position and was pushed down the stairs by a patient on her first day.

The statute sets forth five different methods for calculating a worker’s AWW and the Industrial Commission used the method for when less than 52 weeks is worked. This method sets the AWW as the sum of the worker’s earnings divided by the number of weeks actually worked, if this results in an amount that is “fair and just to both parties.” The court found that this method was unfair to the worker and set the AWW as the amount that “will most nearly approximate the amount which the injured employee would be earning were it not for the injury.”

Entire impairment rating evaluation process unconstitutional – Pennsylvania

The recent decision of the state’s Supreme Court in Protz v. Workers’ Comp. Appeal is having widespread implications for the workers’ compensation process. In Thompson v. Workers’ Comp. Appeal Bd, the Commonwealth Court held that one legal effect was to undermine the legal authority for the entire impairment rating evaluation (IRE) process. Accordingly, the Board could not approve a modification of benefits based upon an IRE.

Loss of earning power appropriate standard in reinstatement of benefits case – Pennsylvania

In Schafer v. WCAB (Reese Masonry), the Commonwealth Court overturned lower rulings by reviving a worker’s petition for reinstatement of benefits. It explained the wrong standard was used; the worker did not need to prove a worsening of his condition or inability to perform his regular job to be entitled to wage-loss compensation; he just had to show that his earning power was adversely affected by his disability and that it arose from his original claim.

Worker awarded benefits for fall that aggravated pre-existing arthritic condition – Tennessee

In Jenny Craig Operations v. Reel, a worker tripped and fell, aggravating the pre-existing arthritis in her knee and necessitating knee replacement surgery. The company accepted liability for a temporary injury to the knee, but it denied liability for the total knee replacement and for any permanent impairment. A trial judge found the fall had caused an acceleration, advancement, or progression of her osteoarthritis, such that she required a total knee replacement and a permanent partial disability of 46.5% to her right lower extremity.

The state’s Supreme Court Special Workers’ Compensation Appeals Panel agreed, noting, “an employer takes an employee as is and assumes the responsibility of having a pre-existing condition aggravated by a work-related injury which might not affect an otherwise healthy person.”

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Legal Corner

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.

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

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.

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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.

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