Legal Corner

ADA
Rarely performed job deemed essential based on job description

In Knutson v. Schwan's Home Service, Inc., the 8th Circuit held that it was an essential function of a manager's job to be certified by the Department of Transportation (DOT) to drive delivery trucks. As a local general manager (LGM) with an excellent track record, the employee rarely drove a truck. However, DOT certification was listed as a requirement in the manager's job description, and on occasion the employee had driven delivery trucks. As a result of an eye injury, the employee was unable to obtain the medical waiver necessary to qualify him for the required DOT certification. In arguing that his termination violated the ADA, the employee argued that he could perform his manager job successfully without driving a truck, having driven a delivery truck less than 50 times between November of 2007 and his termination in January of 2009.

The 8th Circuit Court upheld the opinion of the lower court that the requirement to hold a commercial driver's license is an essential function of the manager's position. In so doing, the court pointed out that under the ADA, an employer's judgment about what constitutes an essential function is "highly probative." In this case the position description for the LGM position specifically required the commercial driver's license and managers were expected to fill in when needed. The company was able to show that if managers did not drive trucks, fewer products would be delivered and less driver training would be provided, both of which would affect sales.

Lifting accommodation found unreasonable

General Electric did not violate the ADA when it denied promotions to an employee with permanent work restrictions relating to lifting. The position of purchased-material-auditor job required lifting of materials over the employee's 20-pound restriction. While she proposed to have a material handler lift the objects, the court asserted that having another employee perform a position's essential function, and, to a certain extent, perform the job for him or her, is not a reasonable accommodation. Majors v. General Electric Co., 7th Cir, No. 12-2893 (April 16, 2013).

Epilepsy case relates to essential functions of the job

A mammography technologist with epilepsy is not a qualified individual with a disability under the ADA because she cannot perform the essential functions of her job "during the indefinite periods in which she was incapacitated," according to the Eighth Circuit Court of Appeals. Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013).

Even after her employer implemented several workplace accommodations, including leave, eliminating workplace conditions that triggered seizures and an alternate temporary position, the technologist suffered unpredictable and reoccurring seizures.

Shortly after the decision, the EEOC issued "Questions and Answers about Epilepsy in the Workplace and the Americans with Disabilities Act."

EEOC issues guidance addressing cancer, diabetes, epilepsy and learning disabilities

On May 15, 2013, the EEOC issued revised Q & A documents addressing how the ADA applies to job applicants and employees with cancer, diabetes, epilepsy and learning disabilities and the types of accommodations that companies can make. The EEOC noted the number of people who are considered disabled with such impairments has grown since the ADA was amended in 2008 and the courts look to whether the person has been reasonably accommodated. Here are the Q & A's:

Diabetes http://www.eeoc.gov/laws/types/diabetes.cfm

Cancer http://www.eeoc.gov/laws/types/cancer.cfm

Epilepsy http://www.eeoc.gov/laws/types/epilepsy.cfm

Intellectual disabilities http://www.eeoc.gov/laws/types/intellectual_disabilities.cfm

Absences due to migraine headaches mean employee cannot perform essential functions of the job

In Murphy v Samson Resources Co., the Tenth Circuit court affirmed summary judgment in favor of the employer, holding that the employee was not "qualified" for her position due to her absences for migraine headaches.

The employee's job description stated that regular and punctual attendance was an essential function of her accounting assistant position. While the employee argued that she was "qualified" under the ADA because a flexible schedule was a reasonable accommodation, the court noted that even with the flexible schedule, the employee did not perform her work accurately and did not make up missed time.

Workers' Compensation
Scar on neck qualifies for facial/head disfigurement award - Arizona

An Arizona appellate court recently upheld a Workers' Compensation award for facial disfigurement benefits where the injured worker, a truck driver, sustained a five-inch scar on his neck when he was sprayed with sulfuric acid that was being hauled in his truck. The appeals court found the scar compensable under a statute providing benefits for disfigurements "about the head or face," noting the word "about" was crucial to the decision. The court noted that the dictionary definition of "about" included "on all sides; in every direction; around" and "in the vicinity; near." Because the neck is "around," "near," and "in the vicinity of a person's head or face," a disfigurement of the neck was compensable.

Court of appeals reverses WCAB on personnel action compensation case - California

Similar to other states, California has a special statutory provision dealing with mental injury claims that are the result of bona fide personnel actions, which provides that a worker's psychiatric injury is not compensable if it was "substantially caused" by a personnel action. "Substantial cause" is defined as at least 35 to 40 percent of the causation from all sources combined.

The case, County of Sacramento vs. WCAB, involved a probation officer at juvenile hall in Sacramento County who was the subject of an internal affairs investigation based upon a complaint of a subordinate officer. The agreed medical evaluator (AME) concluded that the employee's injury was caused equally by (1) a coworker's complaint against the employee (which the parties agreed was not a personnel action), (2) an internal affairs investigation (which the parties agreed was a personnel action), and (3) the employee's feelings of not being supported by his superiors because he was advised to have no contact with the complaining employee who he supervised (which the parties disputed was a personnel action). The Court of Appeals noted the distinction of what constituted a personnel action and what constituted the applicants reaction to a personnel action was not clear from the AME's report. The Appellate Court ruled the employee's feelings are the actual injury, not a cause of injury is relevant and therefore the substantial cause threshold was not met.

The case also suggests that a court should not allow the opinion of the AME (or another medical expert) to determine the legal issues that are paramount in the case.

Injuries sustained in idiopathic fall found compensable - Iowa

An Iowa appellate court reversed a decision by a state trial court that had, in turn, reversed an award of Workers' Compensation benefits in favor of a seventy-nine-year-old part-time janitor who had suffered an idiopathic fall at his place of employment. While the janitor fell during a coffee break with his supervisor, the court found there was "some employment contribution to the risk" under the particular facts of the case, indicating that the evidence showed the office was cramped and the corner of the supervisor's desk was pointed, adding to the injuries sustained in the fall.

Firefighter need not rely on special occupational disease presumption to establish cancer claim - Nevada

Nevada, like a number of other states, has a statute that provides for a qualified, rebuttable presumption that a firefighter's cancer constitutes a compensable occupational disease. The Nevada Supreme Court recently affirmed an award of Workers' Compensation benefits to a firefighter who did not qualify for the presumption because he had been employed less than five years at the time he contracted a brain tumor. The high court overturned a hearing's officer ruling that the firefighter needed to rely upon the presumption. Instead, the claim could be established as a compensable occupational disease since the firefighter presented competent medical evidence that his brain tumor was caused by employment condition.

Appellate court says mother of slain EMT is entitled to death benefits - New York

The Appellate Division of the state Supreme Court found that the mother of a slain EMT is entitled to death benefits, upholding a 2011 decision by the state Workers' Compensation Board. The court agreed that the EMT was "the primary breadwinner for the family" and that the family was "significantly affected" when his financial contributions ceased at the time of his death.

Appellate court upholds multi-million dollar award for injured construction worker - New York

The injured employee was a 56-year-old lead inspector who fell at a New York subway station job site after stepping on an unsecured plank, resulting in two spine surgeries. Prior to the accident, the employee had a long history of lower back problems and it was argued that the back problems were pre-existing and not a result of the fall. The Court upheld an award of $3,166,000, from a jury verdict and notably, allowed for $2,400,000 in compensation for the injured worker's pain and suffering alone. Burnett Williams v. City of New York, New York City Transit Authority and Metropolitan Transportation Authority

Appellate court blocks Workers' Comp settlement as unfair - North Carolina

An employee of a landscaping services company was injured and agreed to a lump sum settlement of $26,000 in 2007. In 2012, the Industrial Commission invalidated the settlement, noting that it was not explicitly tied to the costs of medical treatment, and ordered that all medical expenses be paid plus $211 per week in temporary disability compensation. The appellate court upheld the decision but did not award payment of legal fees because the landscaping company did not have Workers' Compensation coverage and therefore was not an "insurer" and had ceased to exist. Danny Allred vs. Exceptional Landscapes, Inc.

Workers' Compensation disclaimer bars injured security guard from suing third party - Pennsylvania

A security guard hurt during a job assignment cannot sue her employer's client for negligence since she signed a Workers' Compensation disclaimer waiving her right to do so. The case, Bowman v. Sunoco, Inc., ultimately found its way to the Pennsylvania Supreme Court; however, each court agreed that the disclaimer did not violate public policy because the employee waived only her right to sue a third party and she was not deprived of her right to Workers' Compensation benefits.

This case points out the protection a disclaimer can afford employers.

Psychiatric drugs not compensable medication - West Virginia

Psychiatric drugs are not compensable medication for a Workers' Compensation claimant who suffered an electric shock on the job, according to a ruling from the state Supreme Court. An employee received an electric shock in the course of her employment at Beckley Appalachian Regional Hospital and was awarded permanent partial disability. About a year and a half later, she was diagnosed with major depression and proscribed certain psychiatric medications.

According to the court, state law says that the claims administrator is not required to provide coverage for psychiatric services and medication unless the problems are a direct result of a compensable injury. They found that the evidence showed the need for psychiatric medications was linked to non-work related factors.