Legal Corner

ADA
Failure to complete drug program basis for termination

The fifth U.S. District Court of Appeals in New Orleans ruled that an employer did not violate the Americans with Disabilities Act (ADA) or the Family Medical Leave Act (FMLA) when it terminated an employee who twice failed to complete a drug treatment program. While the employee had received a prescription for Vicodin to manage the pain from various work injuries, he sought additional prescriptions from other clinics without advising the treating physician.

After a near overdose, he sought medical leave, but during the leave was terminated after twice failing to complete a treatment program. The court argued the employee's rights to reinstatement that is generally guaranteed under FMLA had been lost for reasons unrelated to the leave and that the ADA has a drug-use exclusion that applies to the illegal misuse of painkilling drugs controlled by prescription.

Bryan Shirley v. Precision Castparts Corp.

FMLA
Reduction in job status nixes equivalent position argument of employer

In Crawford v. JP Morgan Chase, the 6th District Court ruled in favor of an employee who sued for FMLA interference and retaliation when she was placed in a position that had the same pay, work hours and benefits but required lesser skills and had a lower status. Prior to the leave, which was granted to help treat post-traumatic stress disorder, anxiety and depression (she had been held hostage at gunpoint at a previous job), the employee held a position of project manager and reviewed government regulations and contracts. When she returned from leave, she was assigned a job of Quality Analyst that had more clerical duties and, according to the Court of Appeals, did not require a similar level of training and education and afforded less opportunity for advancement. Therefore, the position was not equivalent.

Guidance on FMLA and same-sex marriage

The Department of Labor has updated several of its guidance documents to reflect the Supreme Court's ruling striking down the Defense of Marriage Act. Under the revised regulations, eligibility of married gay and lesbian couples for FMLA benefits will depend on their state of residence, according to a spokeswoman for the department. The regulations apply to all private and public employers and workers, including state and federal agencies.

The regulation serve as a reminder to employers that they need to carefully consider what changes they should make now to FMLA policies, forms and procedures to remain compliant with DOL's updated interpretation of the definition of spouse.

Failure to adhere to call-in procedures and provide medical certification leads to denial of claim for interference

An employee who did not follow his employer's call-in requirements under its attendance policy or provide an appropriate medical certification supporting his need for leave under the FMLA has failed to establish a claim for interference with his FMLA rights, according to the Sixth Circuit. Srouder, et al. v. Dana Light Axle Mfg, LLC. Affirming summary judgment for the employer, the Court ruled that an employer may enforce its customary notice and attendance procedures against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee's failure to comply with the requirements.

Workers' Compensation
Employer may be liable for injury caused by employee who drank too much at company party - California

An employer could be held liable for its employee's off-duty accident as long as the proximate cause of the injury (here, alcohol consumption) occurred within the scope of employment, the California Court of Appeal has held, reversing summary judgment in favor of the employer. The Court further ruled it was irrelevant that the effect of the employee's negligence occurred after he had arrived home from the employer-sponsored party.

A bartender employed by the Marriott Del Mar Hotel attended the company Holiday Party. While only beer and wine were served and employees were given two drink tickets at the party, the employee brought his own flask of whiskey, which was refilled by hotel staff. He left the party with others and returned home. Later, while driving an intoxicated coworker home, he struck a vehicle, killing its driver. He was convicted of vehicular manslaughter and went to prison and the family of the deceased driver sued Marriott for wrongful death. The employer asked the trial court to dismiss the case because the employee was not acting within the scope of his employment at the time of the accident. The trial court granted the motion.

On appeal, the appellate court found the party was a thank-you to employees and the party's purpose was "celebration, employee appreciation, holiday spirit, [and] team building," and, therefore, was within the scope of employment. The Court also found "no reasonable justification for cutting off an employer's potential liability as a matter of law simply because an employee reaches home." It explained that vicarious liability is not based on when the injury occurred, but on the act that caused the injury. Accordingly, the Court reversed summary judgment and remanded the case for further proceedings.

Purton v. Marriott Int'l, Inc.

Brain MRI isn't reasonable medical treatment for work-related knee injury - Nebraska

A lead pressman fell from a platform, injured his left knee and was diagnosed as having contusions and abrasions. Since he continued to experience pain and an MRI revealed degenerative changes in his knee, he completed physical therapy. He underwent three deep vein thrombosis examinations because of sharp pain, but all had normal results and two doctors found that he was no longer in need of additional treatment.

He independently sought treatment from another doctor and underwent a fourth deep vein thrombosis examination, which had normal results. He also visited a neurologist because he had numbness on his left side. The pressman sought benefits for the fourth deep vein thrombosis examination and MRI to his brain and spine. The Nebraska Court of Appeals held that these medical treatments were not reasonable and necessary and therefore he was not entitled to benefits.

Allen v. Malnove Holding Co.

Intoxication must be cause of accident for denial of claim - New Hampshire

In Appeal of Thomas Phillips, the New Hampshire Supreme Court ruled a worker's mere intoxication, without a causal relationship between drinking and injury, cannot be used as a defense against providing Workers' Comp benefits.

The injured worker received a break in his rent from his landlords and next-door neighbors in return for doing maintenance work around both houses. A fall from a ladder while removing a tree branch rendered him a quadriplegic. When he was hospitalized after the fall, his blood alcohol content was 0.27, more than three times the legal limit to drive.

A Department of Labor hearing officer awarded benefits, but the Compensation Appeals Board reversed that ruling, saying he was drunk. In considering the case, the Supreme Court said it was concerned because the appeals board focused only on whether the worker was intoxicated and failed to review whether intoxication contributed to the injury, so the case was returned to the Appeals Board.

Removal of safety screen insufficient to support intentional tort action - New York

A divided New York appellate court denied a suit targeting SML Veteran Leather LLC over work-related injuries an employee suffered in its New Jersey factory, noting a lower court failed to follow New Jersey Workers' Compensation law. It found the employee failed to show that SML committed an intentional wrong that entitled him to sue the company for damages instead of seeking damages through New Jersey Workers' Compensation law, which has the "exclusive remedy" provision.

The alleged intentional tort-the employer's removal of a safety screen from a hot leather-stamping machine-was but one factor to consider. The court pointed out that there were no prior incidents or injuries caused by the machine, no evidence of deliberate deceit or fraudulent conduct by the employer, no OSHA violations, and the accident would not have occurred absent the employee's decision to retrieve a piece of stuck leather with his hand rather than the normal procedure. The employer's conduct, if true as alleged, was not "so egregious as to constitute an intentional wrong."

Attorney's fees limited to one-third of employee's recovery in third party suits - North Carolina

Construing N.C. Gen. Stat. § 97-10.2(f)(1)(b), the court indicated the attorney fee taken from the employee's share may not exceed one-third of the amount recovered; the fee was not subject to the reasonableness requirement of N.C. Gen. Stat. § 97-90(c).

Tinsley vs. City of Charlotte

Slip and fall on college campus walkway by painter not compensable - Pennsylvania

The university contracted with a company to paint various dormitories. When a painter employed by the contractor was injured in a fall as he walked toward a train station at the end of his workday, he argued he was still on the employer's premises at the time of his fall, since the slate walkway was part of the university's campus. While the state Appeals Board agreed, the appellate court noted it could not ignore the fact that the painter worked for the contractor, not for the university. While the "premises" might easily have included the building within which the painter worked, it did not include the slate pathway some 150 feet away where he fell.

See Mansfield Bros. Painting v. Workers' Comp. Appeal Board

Employer gets subrogation on contract suit - Pennsylvania

The complexity of subrogation cases is evident in a recent Commonwealth Court case, Kennedy v. Workers' Compensation Appeal Board (WCAB). A products liability action was filed against the manufacturer of the conveyor belt after an employee crushed his right hand. Due to an exclusions clause in the liability insurance contract held by the manufacturer, neither the manufacturer nor its liability insurance carrier defended the products liability suit. As a result, the injured worker was awarded a sum of money.

To collect the money, the injured worker had to file a breach of contract suit against the liability insurance carrier of the manufacturer. When the Workers' Compensation insurance carrier then sought subrogation, to get money back from that judgment, the injured worker refused, saying the money was for a breach of contract suit (not a personal injury suit) and was being paid by an insurance carrier, not by the party responsible for the injury. Litigation ensued before a Workers' Compensation Judge (WCJ), who found that the money awarded to the injured worker, despite the tortured process, was for the injury that caused him to be disabled. Therefore, the WCJ granted the Workers' Comp insurance carrier's request for subrogation. Upon appeal this was affirmed.

Worker injured doing personal task denied benefits upon appeal - Pennsylvania

In our July 2013 eBulletin, we cited a case where a worker took a brief break to polish a bolt for his child's go-cart with an emery cloth and severely injured his thumb. He was granted benefits by the Appeals Board, which noted this was a minor departure from work and the employer allowed employees to use their machinery for personal work during working hours.

Upon further appeal, the Commonwealth Court held that regardless of whether the employer permitted workers to do personal work on its machinery during work hours, and regardless of whether worker was gone from his post for only five minutes, the departure from the course of his employment was "strongly marked and not trivial."

Unlike "personal comfort" breaks, the employee's decision to pursue the project, while short in duration, was a departure from the course of the employment in the mind of the Commonwealth Court. "Temporary" or not, according to the Commonwealth Court, at the moment of his injury, Claimant had abandoned his work responsibilities.

Trigon Holdings, Inc. v. Workers' Comp. Appeal Bd. (Griffith),

Employer need not show job availability when non-work-related injuries or conditions preclude the employee's return to work - Pennsylvania

That's the holding of the Commonwealth Court in Septa v. Workers' Compensation Appeal Board (Cunningham), in which the Court held that, under Section 413 of the Workers' Compensation Act, when non-work-related injuries render a claimant incapable of all possible work activity, an employer is not required to establish the availability of a job to obtain a suspension of benefits.

Supreme Court upholds Workers' Compensation law on independent medical review and grants award to injured worker - Tennessee

In a unanimous opinion, the Tennessee Supreme Court has upheld the constitutionality of a Workers' Compensation law that gives priority to the opinion of an independent medical examiner to determine the disability rating from a work-related injury. When the employer and employee could not agree on the degree of impairment, the trial court denied the request for an independent medical review, noting the law, by declaring the independent evaluation as "presumptively correct," improperly infringed upon the power of the court to determine which of the opinions was entitled to more credibility.

On appeal, the Supreme Court concluded that the law did not violate principles of due process and did not constitute an infringement by the legislative branch upon the exclusive powers of the judiciary. While agreeing that the employee was entitled to an award of benefits, the Court held that, because he had not submitted clear and convincing evidence as required by the law to contradict the presumption of correctness given to the independent medical opinion, he was limited to a recovery based upon the seven percent disability rating determined by the independent medical review.

Mansell v. Bridgestone Firestone North American Tire, LLC

Roofer was employee, not independent contracto, and entitled to Workers' Compensation benefits - Tennessee

Owners of a commercial building engaged an individual to assist with the roofing recoating at the site. When he fell from the roof and sustained serious injuries, he contended he was an employee and not an independent contractor. The owners had a general liability insurance policy with Lafayette that excluded coverage for injuries to employees, but covered injuries to "temporary workers." The appellate court found that the definition of a temporary worker suggested involvement of a third party and since there was none, Lafayette had no duty to defend or indemnify the owners for damages that might be awarded against them by the roofer.

Lafayettte Ins. Co. v. Roberts

Slip and fall on home driveway ice compensable - Wisconsin

An employee who fell when he slipped on ice in his driveway was completing a "special errand" and therefore the injury was compensable according to a Wisconsin appellate court. Once every six weeks, the employee had pager duty as a county maintenance worker. On the evening of the injury, the employee was paged during a winter storm, reported to work and repaired a door at the county jail and when he returned home, slipped on ice in his driveway. The court noted that there was no question of any deviation; the claimant was still on the "special errand" at the time of the injury.

County of Outagamie v. Labor & Indus. Review Comm'n