Legal Corner

FMLA
Summary of 2011 federal cases

Each year, the American Bar Association's Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year. 2011 proved to be an active year for cases.

The report can be accessed here.

Pre-Eligible FMLA request for post-eligible maternity leave is protected activity

The case, Pereda v. Brookdale Senior Living Communities, Inc., involved a worker who was pregnant but had not worked the required 1,250 hours under FMLA. Because she was not an eligible employee, Brookdale insisted that she was not entitled to FMLA protection and a district court agreed. However, on appeal, the 11th U.S. Circuit Court of Appeals found "The determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start." Therefore, if an employer terminates the employee "in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible," the employee could advance an FMLA interference claim.

6th Circuit Court decision places burden on employer to communicate method for calculating leave

In Thom v. American Standard, Inc., the plaintiff suffered a non-work related injury and was granted FMLA leave so that he could undergo surgery and recuperate with a return date of June 27. The injury healed quicker than expected, so the plaintiff's doctor gave him clearance to return to work on a restricted basis, with a date of June 13 to return to full duty; however, pursuant to company policy, employees with non-work related injuries were not permitted to perform "light duty" work after returning from FMLA leave and the plaintiff was sent home.

Subsequently, the plaintiff did not return to work on the scheduled date, but rather informed his employer that he was experiencing increased pain and would return to work on June 27, the end of his approved FMLA leave period. On June 17, the plaintiff secured a doctor's note indicating the need for an extension of his leave. However, by the time the plaintiff gave American Standard the note, the company had already terminated his employment. American Standard's basis for the termination was that the plaintiff's absences from June 13 to 17 were unexcused.

Ruling in favor of the plaintiff, the Sixth Circuit acknowledged that employers are permitted to use any one of four methods for calculating leave, however, American Standard had failed to adequately notify its employees about how it calculated FMLA leave time. Further, in rejecting American Standard's arguments that it had provided the plaintiff with constructive notice of the calculation method, the court stated that employers should be required to abide by "principles of fairness and general clarity," and accordingly, "should inform their employees in writing of which method they will use to calculate the FMLA leave year."

The Court also found that the plaintiff was entitled to liquidated damages under the FMLA because American Standard's reliance on the rolling method "after the fact" exhibited bad faith.

Workers' Compensation
Facebook photos used to contest Workers' Compensation claim - Arkansas

An employee who received temporary total-disability benefits and medical expenses for more than one year as a result of a work-related injury, sought an extension of benefits following three surgeries. An administrative law judge and the Arkansas Compensation Commission denied the application. On appeal, the employee argued that he needed further medical treatment and disability payments because of "excruciating pain" and that the previous proceedings should not have considered pictures of him partying and drinking that appeared on Facebook and MySpace.

The appeals court agreed with previous rulings, which denied a request for additional treatment after diagnostic tests showed "no recurrent hernia and surgery to explore the scrotum" and saw no abuse by the courts in allowing the photos.

Worker need not be injured or killed on the outer continental shelf to qualify for benefits - California

A widow can seek Workers' Compensation benefits under the Outer Continental Shelf Lands Act, even though her husband was killed on an onshore oil-processing facility, the Supreme Court ruled confirming the 9th Circuit decision. While the employee had spent 98 percent of his working time doing maintenance work aboard offshore oil-drilling platforms, he was killed while collecting scrap metal with a forklift at the onshore oil flocculation facility, a job he did infrequently. His widow received death benefits under California's Workers' Compensation and then filed a claim for benefits under the Outer Continental Shelf Lands Act and another law for longshore and harbor workers. Benefits under the Longshore And Harbor Workers Compensation Act were denied, but it was found that a worker need not be injured or killed on the outer continental shelf to qualify for benefits under that act. It is enough to suffer injuries resulting from outer continental shelf operations.

Cashier injuries caused by out of control vehicle covered by comp - Illinois

A cashier at a produce market was among several people injured when a driver lost control of his vehicle and crashed through the window wall of the market. A Workers' Compensation arbitrator found that the cashier failed to prove her injuries arose out of her employment. However, the commission reversed and awarded benefits, noting job duties required the employee to spend almost the entire workday in the front of the store. The location of a worker within the building where work duties are performed can result in a greater risk exposure to injury than the general public.

Going and coming rule' makes worker's car accident injuries noncompensable - Maryland

A court bailiff who went home during his shift to change his tie cannot receive Workers' Compensation for injuries incurred in a serious car crash as he returned to work, a Maryland appellate court has ruled. The part-time bailiff arrived at work and "realized he was wearing a Christmas tie." The court's dress code requires bailiffs to wear a light or dark blue tie at work.

The court ruled that the commute fell under the state's "going and coming rule" for Workers' Comp and did not meet the criteria for exceptions, partly because the bailiff did not receive a supervisor's permission to leave work.

Statute of limitations not relevant in misdiagnosed injury - New York

A Lowe's Home Centers Inc. employee can receive Workers' Compensation benefits for a misdiagnosed hip injury, even though it falls outside a two-year statute of limitations, a New York appellate court ruled.

As a result of a work-related injury the employee received benefits in 2006 for lower back injury and groin strain. His condition worsened and he was treated by an orthopedic surgeon who diagnosed him with a right hip labral tear. The surgeon requested a surgery authorization noting the hip injury was caused by the 2005 work accident that was misdiagnosed by prior doctors.

The state's Workers' Compensation Board reversed a Workers' Comp judge decision that the injury was time barred and unrelated to the work injury, saying that the hip injury was related to the 2005 accident, and, therefore, shouldn't be time-barred. The judicial panel noted that initial claim reflected hip problems, and that labral tears in the hip often are misdiagnosed as lower back injuries.

Failure to file timely notice costly mistake- New York

In a contested heart attack death claim, the employer/insurance carrier, producing excellent expert opinion, had won at several legal levels. But New York's highest court ruled that the employer should have been precluded from presenting evidence disputing the claim because of a previously ignored technical detail - contesting the claim was filed late. As a result, the employer became liable for future payments to a surviving spouse that could exceed $2,000,000.

Tendon ruptures and tears constitute a compensable occupational disease - North Carolina

A process/utility operator for a corn products manufacturer frequently knelt down over the course of his 23-year employment. Orthotic inserts in his boots did not relieve the pain in his foot and eventually he felt a pop in his foot when he stood up from kneeling, resulting in immediate pain in his foot and ankle, which swelled up. Diagnosed with tenosynovitis and torn or ruptured tendons, he had to use a cane to walk because of the constant pain. The operator filed an occupational disease claim.

While the manufacturer argued that no evidence showed that the operator's tenosynovitis was caused by trauma in his employment and that the rupture and tear resulted from one maneuver, the court disagreed. The operator's doctor opined that the tenosynovitis was more likely than not caused by the repetitive overuse of getting into and out of a kneeling position and the court concluded that the operator's repeated pulling and stretching of his tendons during his job resulted in an occupational disease.

Two decisions relating to reinstatement - Pennsylvania
Loss of earnings must be related to work injury

An employee who suffered a strain to her left hip and low back, returned to modified duty with work restrictions. After returning to work, her physician added restrictions, which included "no going up/down stairs." The employer had nothing meeting those restrictions, and Claimant filed a Petition for Reinstatement.

The claimant testified that she climbed three flights of stairs a day for her apartment, and that she was able to go up or down the ten steps that were required at her job, maybe four times a day. Her doctor testified that she did not mean literally no steps, the doctor just meant no steps on a repeated basis. In fact, the doctor said she encouraged her to continue working at the job. As such, the Workers' Compensation Judge denied the Reinstatement Petition, since the reason the claimant was not working was not related to the work. The decision was affirmed upon appeal.

Change in condition leads to Reinstatement of Workers' Comp benefits in spite of resignation

An employee injured his shoulder at work, but returned to work at his pre-injury job, at no loss in wages, causing the Workers' Comp benefits to be suspended. The injured worker then voluntarily quit his job because there was a "deterioration of the relationship" with the company, and he was having increased pain in his shoulder. Shortly later, the injured worker saw a doctor who found that he was not physically capable of his pre-injury job.

A Workers' Compensation judge granted the Petition for Reinstatement since the injured worker proved he had a change of condition. Although upon appeal, the Workers' Compensation Appeal Board reversed this decision, the Commonwealth Court of Pennsylvania reinstated the decision saying that once the condition had changed and the claimant was again disabled from his job, he was entitled to Workers' Compensation benefits.

Temporary employees can't be excluded from WC policy - Texas

A temporary employee who died on the job can't be excluded from an employer's Workers' Compensation policy, the Texas Supreme Court said in a ruling that reversed a $2.7 million liability judgment for the worker's family. In a unanimous decision, the state's high court said companies that provide Workers' Comp coverage generally cannot "split (their) workforce" by excluding different classes of workers from their policies.

Prescription medication leads to nurse's permanent total disability - Tennessee

A nurse who slipped and fell injured her neck and back and underwent two surgeries to alleviate pain, numbness and other symptoms related to her fall.

She later was arrested for driving under the influence while taking her son to school. She testified that her driving was impaired by a combination of medications prescribed to manage pain and depression that were caused by her work accident. Those included the opioids Percocet and methadone, antidepressant and antianxiety pills, a muscle relaxer and an antiseizure medication.

A neurosurgeon who treated her, said she could not return to work as a registered nurse because of her neurological symptoms and drowsiness caused by her medications. He also said she was unable to perform sedentary work because he was "concerned about (employee's) capability of functioning and making important decisions while on that type of medication."

The Tennessee Supreme Court's Workers' Compensation panel unanimously upheld an PTD award. It said the doctors testimony about physical limitations and the side effects of medications were the "only medical proof" of impaired work capabilities.