Legal Corner

ADA
Medical Center to Pay $146K to settle EEOC disability discrimination suit relating to prescription medication use by employees and applicants

According to the EEOC's lawsuit, applicants and employees were denied hire or placed on leave by the Medical Center because they were taking prescribed narcotic medications. The complaint alleged that such action was taken because the center perceived persons taking narcotic medications as being disabled as defined by the ADA. EEOC Response: "We hope this case reminds employers that they must conduct an individualized assessment of an applicant's or employee's ability to perform his or her specific job even when the applicant or employee is taking legally prescribed narcotic medication," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District, which includes the EEOC's Raleigh Area Office where the charge was filed. "Employers should never assume that every person taking a narcotic drug will suffer side effects."

FMLA
Trip to Vegas is FMLA leave

An employee of the Chicago Park District was the primary care giver for her terminally ill mother. A local charitable organization granted her mother a "make a wish" trip to Las Vegas. The employee requested FMLA to accompany and care for her mother, although the purpose of the trip was not for medical care or treatment.

Her employer denied the claim and terminated her for unauthorized absences. She later filed suit, alleging that her employer interfered with her ability to take FMLA leave.

While precedent suggested the case would be dismissed because treatment was not the purpose of the trip, an Illinois district court ruled "So long as the employee provides "care" to the family member, where the care takes place has no bearing on whether the employee receives FMLA protections."

Professional pointer: In light of this ruling employers can take a risk when they allow FMLA leave only when the trip includes some form of medical care, treatment or therapy. To prevent abuse, take careful steps to ensure the certification clearly indicates that care by the employee is medically necessary.

Workers' Compensation
Employer not required to reimburse injured worker for self-procured medical care: Court - California

A California health system does not have to reimburse a former employee for self-procured medical care that she sought after receiving "nightmare" care from an authorized physician, a California appellate court has ruled. In Adventist Health v. WCAB (Fletcher), an injured employee had unsuccessful back surgery in 2004, leaving her unable to work and in chronic severe pain. After her original treating physician was dismissed form failure to meet Workers' Comp reporting requirements. Dissatisfied with the new treating physician, she sought treatment from an unauthorized physician and then sought reimbursement for her care.

While the California's Workers' Compensation Appeals Board ordered the employer to pay, the appellate court ruled that the issue was not the right to a new physician, but whether that right was exercised according to Workers' Compensation laws and regulations, which she failed to do.

Walmart settles closely watched Workers' Comp class action suit - Colorado

Last month, a federal court judge in Denver approved a settlement of Josephine Gianzero et al. v. Wal-Mart Stores Inc., a case involving 13.521 plaintiffs. The case alleged that the giant retailer, its adjustor, CMI, and medical services provider, Concentra, went too far in controlling injured workers' medical treatment. The settlement is believed to be the first payout involving Workers' Comp claim management practices and the violation of Racketeer Influenced and Corrupt Organizations Act (RICO).

While some observers believe this has far-reaching implications and is a crack in the "exclusive-remedy" defense, there are others who believe that the case was very fact-specific and the paltry settlement with no admission of wrongdoing is too small to spur other cases. Plaintiffs who were treated at a Concentra facility will receive $520 and those who were treated at other facilities will receive $50.

Employers may seek injured workers' health information from doctors - Georgia

An Arby's employee had received Workers' Compensation benefits and had signed a form authorizing release of her medical information. After her doctor issued a report that McRae had reached maximum medical improvement and sustained a 65% permanent partial disability impairment, Arby's sought a meeting with her doctor, who refused unless the injured employee or her attorney were present.

The case made its way to the Georgia Supreme Court that ruled Georgia law clearly waives any protection of an employee's medical records once the worker submits a claim for comp benefits, receives income benefits or the employer has paid any medical expenses. It noted the law doesn't specify how medical information is to be communicated - it doesn't distinguish between records and verbal communication, for example. To ensure privacy protection the medical information conveyed must pertain specifically to the Workers' Comp claim.

Worker's inability to speak English can affect disability settlement - Iowa

The case of Merivic Inc. and Zurich North America v. Enrique Gutierrez involved a Workers' Compensation claimant who had a ninth-grade education and a "limited working knowledge" of English despite having lived in the United States for 34 years. After falling from a height of about 10 feet and undergoing surgeries to repair a wrist and a rotator cuff, he was unable to find work.

The testimony of a vocational rehabilitation expert that the lack of English language skills adversely affected employment was considered in the finding that the employee suffered a 100% earning capacity loss.

Federal appeals court reverses dismissal of a RICO complaint brought by Coca-Cola employees - Michigan

The Sixth Circuit court reversed the dismissal of a RICO complaint brought by former Coca-Cola employees who alleged that Coca-Cola's third party administrator engaged in a fraudulent scheme of denying Workers' Compensation claims through the use of a particular doctor.

A district court dismissed their lawsuit, finding that RICO does not provide an end run around the exclusive remedy provided under Michigan's Workers' Comp law, but since the district court dismissed the case, several issues raised in the appeal had been resolved in its finding this year in Paul Brown et al. v. Cassens Transport Co. et al. In that ruling, the appeals court said several Michigan transportation workers could sue their former employer and third-party administrator Crawford & Co. for allegedly violating RICO after their Workers' Comp claims were denied or settled.

It remanded the case to the lower court further proceedings consistent with its opinion.

Extraordinary duties at grocery store means death is compensable - New York

A New York appellate court recently agreed with the state's Workers' Compensation Board that the death of a grocery store employee was causally related to the employment. The employee suffered from extensive cardiovascular disease and normally worked as a receiver but had been appointed acting store manager for Super Bowl Sunday, historically a busy day at the store. Hours before his death from a fatal heart attack, he had an altercation with an irate customer.

Experts disagreed as to whether the stress of additional responsibilities and altercation triggered the heart attack. The appellate court held, therefore, that despite evidence in the record that might support a contrary result, the Board's decision was supported by substantial evidence.

Widow of claimant who dies from prescription drug and alcohol overdose entitled to survivor benefits -Washington

A Washington Court of Appeals panel ruled that the widow of a 37-year old former trucking company employee who died after ingesting six different prescription medications and alcohol was entitled to surviving spouse benefits as a matter of law. The employee had suffered a lower back industrial injury and the claim was closed in 2005, but he received continued treatment for the effects of the workplace injury.

The case went through several layers of hearings and appeals. Medical experts agreed that none of the drug levels in Mr. Shirley's blood were highly elevated and that neither the drugs nor the alcohol alone would have killed him. But they also agreed that the drug and alcohol combination suppressed his respiration and gag reflex, which caused him to suffocate. The court concluded that the evidence "clearly indicates that but for the prescription medications, prescribed specifically and directly for the effects of the industrial injury, Mr. Shirley would not have died" and so his widow was entitled to survivor benefits.

Police officer injured doing pushups entitled to benefits - Wisconsin

A sergeant with the City of Appleton police department injured his right rotator cuff while doing pushups. He was performing the pushups to prepare for a work-based fitness test that provides employees who are in excellent health with a lump-sum cash premium and a retirement bonus. The case found its way to the state Supreme Court, which decided against hearing the case. The appeals court had ruled that the pushups, because they were directly related to the police officer's employment, were not voluntary, thus the officer was entitle to $12,500 in benefits.