Legal Corner

ADA
Tumultuous office romance leads court to find mandatory psychological counseling does not violate ADA

A federal court in Michigan granted summary judgment to the employer in Kroll v. White Lake Ambulance Authority, (W.D. Mich., May 22, 2013) who required an emergency medical technician to undergo psychological counseling as a condition of continued employment. The employee had a tumultuous affair with a married coworker and was often distraught and emotional, leading to concerns from other employees about her emotional health and ability to perform the job. The Court found that the concerns expressed by the WLAA employees regarding her emotional health and its impact on her work performance provided a significant basis for WLAA to question whether the EMT could perform the essential functions of her job and justified requiring a mental health evaluation. The same factors also justified requiring psychological counseling on the basis that the EMT posed a direct threat to herself and others.

FMLA
Firing for absences exceeding certification can raise FMLA claim

An employee of Fincantieri Marine Group (FMG) provided a medical certification documenting serious depression that was expected to flare up about four times in a six-month period. However, the employee had 10 episodes in about three months. When the number of absences exceeded that allowed by FMG's attendance policy, the employee was terminated. Although he had been granted FMLA leave, FMG explained that he had exceeded the frequency his doctor certified.

However, because the employee already had an initial medical certification on file with FMG regarding his depression, the employer's only recourse under the regulations was to seek recertification of the serious health condition. Although FMC asked the physician to confirm the certification, they did not provide sufficient information to the physician nor did they seek a new certification. The court noted "an estimate, by definition, is not exact and cannot be treated as a certain and precise schedule."

Workers' Compensation
Gay man cannot sue for harassment because Workers' Compensation is exclusive remedy - Illinois

An employee of RGIS, Inc. quit because of harassment from his supervisor, including a slur in front of co-workers, but returned to work for the company at another location when it agreed to investigate the supervisor. The new position was two hours away and the job involved long hours. After repeated attempts to tell supervisors he could not maintain the grueling work schedule, he quit and sued the company for "physical injury, medical expenses, severe mental anguish, emotional distress, humiliation, loss of income, and pain and suffering."

The company argued that the alleged harassment and related emotional trauma occurred during the course of his work and was subject to Workers' Comp and the Human Rights Act, because the claims were connected to civil rights violations. The courts agreed, finding that the injuries were 'physical mental' and could be covered by Workers' Comp and that his alleged harassment was "inextricably linked" to civil rights violations under the Human Rights Act.

$4.3 million Workers' Compensation retaliation award upheld - Illinois

An Illinois man was properly awarded $4.3 million in a Workers' Compensation retaliation lawsuit because his employer failed to modify his duties and terminated his job while requiring him to apply for other positions within the company, an appellate court ruled. The employee of frozen food distributor, Schwan's Home Service Inc., injured his back when he slipped on ice and was authorized to return to work with restrictions by his physician.

In spite of the restrictions, the job responsibilities did not change and his condition worsened. On the advice of his doctor, he stopped working for one month to receive extensive physical therapy and when ready to return was notified that his job was being eliminated and he had a 30-day unpaid period to find a new job in the company.

Though the employee was told later that a material handler job had been created specifically for him within the company, he never accepted or declined the position, records show and upon failure to accept the job, he was terminated.

The appellate court found that the employee was terminated while on leave for physical therapy because the company stopped paying him during that time and did not provide temporary total disability benefits. Further, the jury acted properly in awarding $3.6 million in punitive damages, because evidence showed that the back condition deteriorated when the company failed to modify his work duties and the employee suffered increased pain.

Failure to lose weight cannot lead to reduction in benefits - Louisiana

A warehouse employee, whose weight fluctuated at or about 600 pounds, injured his back while lifting pallets. Medication and physical therapy were unsuccessful and the worker was given a prescription for Weight Watchers for weight loss. The employer filed a motion to compel rehabilitation and for reduction of benefits, or alternatively, to condition further disability benefits on claimant's weight loss in compliance with a proper medical treatment plan. Noting that the decision to reduce claimant's benefits was within the discretion of the judge, that the prescription for weight loss had not so much been given to claimant as it had been requested by claimant, and that the claimant had been substantially overweight for most of his life, and all of his working time with the employer, the court found that the judge did not err in finding the claimant was cooperative and compliant with the weight loss rehabilitation offered to him, in spite of his lack of weight loss.

Workers' Comp is only recourse for granary death in spite of OSHA violations - Nebraska

Workers' Compensation is the only recourse for a grain bin death even though the employer "willfully violated safety regulations and thereby caused the tragic death of one of its employees," Nebraska's Supreme Court ruled.

The ruling in Joseph James Teague v. Crossroads Cooperative Association addresses the death of 18-year-old Mr. Teague, who died of asphyxiation after being engulfed by grain in the 58-foot-tall bin he was asked to shovel.

Several OSHA regulations were violated when the young employee entered the bin and the company pleaded guilty to criminally violating OSHA regulations and paid civil penalties. The employee's estate sued for wrongful death and assault and battery, but the courts found the incident to be an accident with Nebraska's Workers' Comp act providing exclusive jurisdiction, meaning the estate could not sue.

The court acknowledged that about a dozen states had an exception to exclusivity when an employer's actions were "substantially certain" to cause injury, but it indicated Nebraska had not allowed such a "substantially certain" exception to exclusivity and that it was not inclined to revisit the issue.

Surveillance video disallowed because not disclosed prior to testimony - New York

A worker sustained a work-related injury in 2007 and was awarded Workers' Compensation benefits. At a 2011 hearing, the Workers' Compensation Law Judge continued benefits pursuant to a temporary total disability and, at the request of the employer and its Workers' Compensation carrier, questioned the employee as to whether he had engaged in any work activities that might affect his compensation award. Then the carrier raised the issue of whether claimant had violated Workers' Compensation Law § 114-a, and requested an opportunity to present surveillance video and the testimony of its investigator. The WCLJ denied the carrier's request to suspend benefits and precluded the presentation of the video and related testimony, finding that the carrier was required to inform claimant of the existence of the video prior to claimant's testimony about his work activities. On appeal, the court affirmed.

Worker injured doing personal task entitled to compensation - Pennsylvania

In Griffith v. Trigon Holdings, Inc., 28 PAWCLR 4 (Pa. W.C.A.B. 2013), the Pennsylvania Workers' Compensation Appeal Board affirmed the Workers' Compensation judge's (WCJ) decision awarding benefits to a worker for his injury to the left thumb while using a machine at work for a personal task. The WCJ found the defendant had a long-standing practice of allowing workers to perform personal tasks on its machines, if those tasks did not interfere with their regular job duties. The worker had a few minutes to spare during his shift so he went to the tool and die department to polish a bolt for his child's go-cart. A piece of cloth got caught and pulled his thumb, causing serious injury.

While the employer argued that the worker was not in the course and scope of his employment at the time of his injury because he was performing personal work on company time, the court found the worker's use of machinery for personal work was an inconsequential or innocent departure in the course of employment and was unable to determine a departure sufficient to establish a break in the course of employment.