Legal Corner

FMLA
Too few hours for exempt employee leads to denial of leave

In McArdle v. Town of Dracut/Dracut Pub. Sch., a schoolteacher who was dealing with personal problems, depression and anxiety had excessive absences. In a twelve month period, he worked only 82 days, far fewer than the required "1250 hours worked" in a twelve month period for FMLA eligibility. When he was denied FMLA leave, he resigned rather than face termination, but sued claiming the school system violated the FMLA for both interference and retaliation.

The district court granted summary judgment for the school district and the First Circuit affirmed. Yet, when considering the retaliation claim, which suggested the teacher was fired because he asked for FMLA leave, the court implied it was not convinced that an employee who is ineligible for FMLA leave can never bring a retaliation claim. It left further analysis for another day, holding that there was no evidence on which the teacher could proceed with his claim.

Employee call-in notice requirements can be enforced for FMLA leave

In White v. Dana Light Axle Manuf., the Sixth Circuit found that even though the plaintiff may have discussed FMLA leave with his employer, the employer could still fire the employee for not following the call-in requirements of its attendance policy. The case involved an employee who needed hernia surgery (an absence covered by FMLA leave). He assumed that he did not need to call in his absences while he was out for the surgery because he had previously met with his employer to discuss his upcoming surgery. FMLA regulations allow an employer to condition FMLA leave on properly following it's notice requirements, when applied consistently.

Workers' Compensation
Post-accident investigative report protected from discovery - Alabama

The ruling in Ex parte Schnitzer Steel Industries Inc. involves a 2008 accident at a metal recycling facility that led to a partial leg amputation. The company conducted a post-accident investigation and the worker filed Workers' Compensation and a civil law suit. The company appealed a trial court's decision to require it to produce the post-accident report, arguing that since it was prepared in reasonable expectation of litigation, the work is protected from discovery under a "work product doctrine." While the employee's representatives argued the reports were prepared to uncover safety concerns, the court found although anticipation of litigation may not have been the employer's only reason for preparing the report, it was a significant reason for producing it.

University cop who received national attention for pepper-spraying protesters receives Comp settlement - California

The University of California, Davis will pay a $38,000 Workers' Compensation settlement to a former campus police officer who received national attention for pepper-spraying protesters. The officer sought comp benefits from the university for a nervous system or psychiatric injury that occurred when he encountered students who blocked a sidewalk in protest of tuition hikes and other issues. As a result of a video that was widely distributed on the Internet showing him pepper-spraying the protestors, he received death threats against himself and his family.

Social Security benefits don't end entitlement to TTD benefits - Nebraska

A worker suffered a work-related injury and ultimately required surgery for a lower back injury. After experiencing symptoms from a non work-related brain tumor, the worker resigned and received Social Security disability benefits for his non work-related chronic manic depression and tremors. The worker underwent a second back surgery. Later, his doctor opined that he was unemployable and the worker sought benefits. The Nebraska Court of Appeals held that he was entitled to temporary total disability benefits (TTD).

The employer argued the worker was not employed and was collecting Social Security disability benefits for non work-related conditions at the time of his second back surgery, therefore he was not entitled to TTD benefits. The court disagreed, explaining that the worker resigned due to his brain tumor, not his back injury. While before his second surgery his physical limitations would not allow him to engage in the type of work he had performed for the employer, they did not completely disqualify him from all employment. The worker's doctors did not state that he was unable to work until after his second back surgery. The court found no evidence that he was disabled by a condition unrelated to his work at the time of his second surgery. The court explained that an injured worker can receive both Workers' Compensation and Social Security benefits.

Horn v. Gra-Gar, LLC, No. A-12-672 (Neb. Ct. App. 07/23/13).

Apportioning of death benefit for work and non-work related causes not allowed - New York

This case involved the death of an employee, who worked as a plumber's helper and mechanic for the Consolidated Edison Co. of N.Y. Inc. from 1958 until retiring in 1993 and was diagnosed with asbestosis and a related disease. The New York State Workers' Compensation Board subsequently classified him as permanently partially disabled and awarded him $222 in weekly benefits.

In 1999, he was diagnosed with thyroid cancer unrelated to his Con Ed. work, and the cancer eventually progressed to his lungs. He died in 2007 and when his widow sought Workers' Comp death benefits, the employer contested the claim.

A doctor testified that the pre-existing occupational diseases compromised his lungs and likely triggered the employee's death earlier than it might have otherwise. After several appeals, the New York Court of Appeals held nothing in the state Workers' Compensation law requires apportioning a death benefit between work-related asbestos disease and non-work-related causes of death. According to the court, a plea for a reduced award would be properly made to the legislature, not the courts.

Gaudenzia, Hroncich v. Con Edison

Disability pension does not prove injured worker abandoned workforce - Pennsylvania

In Turner v. Workers' Compensation Appeal Board (City of Pittsburgh), the injured worker was a police officer who hurt her neck, left shoulder, back, right wrist, and right knee in a work-related car accident in 1994. The injured worker performed a modified duty job for the City of Pittsburgh until 2003, when the City stopped the modified duty program. At that time, she received a disability pension from the City of Pittsburgh and the Workers' Compensation insurance carrier filed a Petition for Suspension noting the injured worker had voluntarily left the labor market.

The injured worker admitted that she has not looked for work since accepting the pension and the WCJ granted the Petition for Suspension, a ruling that was affirmed by the Workers' Compensation Appeal Board (WCAB). However, on appeal, the Commonwealth Court of Pennsylvania reversed the decision. The Court explained, citing a previous ruling, "claimant's receipt of a disability pension merely represented an inability to 'perform her time-of-injury position' and was not indicative of a decision to 'forgo all employment.'" Since the burden of proof was not properly shifted to the injured worker, whether she had or had not looked for work was not relevant.

Which employer is responsible for cumulative trauma injury? - Pennsylvania

A "cumulative trauma" injury is one that takes place over time. For example, repetitive motion functions that lead to carpal tunnel syndrome or ulnar neuropathy. In A & J Building, Inc. v. Workers' Compensation Appeal Board (Verdi), the issue of which employer is responsible and the timing of notice is addressed.

The injured employee was a carpenter who while working for A & J Builders from 2004 to 2007 developed right knee pain. He worked for another contractor for three days in 2008. In 2009 he saw a new doctor who diagnosed the problem as "chronic repetitive work-related chondral wear in the patellofemoral joint on his right knee."

The findings of the WCJ were affirmed through the appeal process. The time to give notice did not begin until a doctor told the injured worker that work duties had caused his condition; therefore, the court found that the notice was timely (it was well over the 120 day period within which notice of a work injury is typically required). Since the other contractor employed the injured worker for only three days, the WCJ found that work did not materially aggravate the condition; however, the work at A&J materially aggravated the underlying problems in the right knee, making A & J the responsible employer.

Court denies injured truckers request for narcotics - West Virginia

A coal truck driver who suffered head, back and other bodily injuries was properly denied access to Xanax and Opana because his doctor failed to provide sufficient evidence that the medications were "reasonably required treatment for the compensable injury," the state Supreme Court has ruled.

In his original Workers' Compensation claim, the board held he was compensable for a lumbar sprain and then later amended to compensate him for a displaced lumbar vertebral disc and fracture of the lumbar vertebra.

In December 2010, a doctor prescribed the regulated pain medications to Jones. However, a claim administrator denied the prescription because "the use of the narcotics exceeded the West Virginia Code of State Rules § 85-20 (2006) treatment guidelines, and the evidence shows that Mr. Jones had been taking at least one narcotic prior to the compensable injury," and this was affirmed on appeal.

Jason D. Jones vs. Multiplex, Inc.

Injury while helping pregnant co-worker lift box of maternity clothes not compensable - West Virginia

An employee injured her wrist and shoulder while helping a co-worker lift a box of maternity clothes that the co-worker had left in her office. Appeals led to the West Virginia Supreme Court that affirmed the Board of Review's denial of compensability, finding (1) helping a co-worker lift a box that does not contain work-related material does not provide a benefit to the employer; (2) helping the co-worker under this fact pattern does not promote generalized teamwork and camaraderie sufficient to rise to the level of "benefiting the employer"; and (3) "an injury which occurs while gratuitously assisting a co-employee with a task of a purely personal nature, involving no instrumentalities of employment and without any alleged involved of or benefit to the employer, does not 'result from' employment."

The Court found this case a close call and reiterated that whether a workplace injury is compensable under the Workers' Compensation act is a factually intensive issue and will vary case by case.

Morton v. West Virginia Office of Ins. Com'r, 2013 WL 5508553, -- S.E.2d ---- (Oct. 4, 2013) (per curiam).