Legal Corner

ADA
Facebook postings by coworker who processed Workers' Comp claims may subject employer to liability under ADA

A federal district court refused to dismiss a civil action filed against a company when a worker who processed workers' compensation claims posted a derogatory comment about a former employee's medical condition on her Facebook page. She commented that it was "amazing" the former employee had missed just one month of work after a "5-way" heart bypass, but a work-related shoulder injury had kept him away from work for 11 months.

The former employee alleged that this violated § 102 of the Americans With Disabilities Act's (ADA) because it implied he was a malingerer and the post was linked to a business email address and, therefore, available to the business communities where he was seeking work. While the company argued that the former employee had voluntarily disclosed his medical information in a separate lawsuit, the court found there was an issue of fact as to whether the co-worker obtained information through the company's job-related medical inquiry, that prospective employers refused to hire him because of the comment, and that he suffered an emotional distress injury under the ADA. Shoun v. Best Formed Plastics, Inc., 2014 U.S. Dist. LEXIS 84868

FMLA
Seventh Circuit Court rules in favor of employee who was caring for her adult daughter and grandchildren on FMLA leave with no return date

An employee of a nursing care facility informed her management that she needed to take time off to care for her adult daughter, who was undergoing treatment for thyroid cancer. She was granted FMLA leave, but did not identify when she expected to return to work. Based on information from the daughter's physician, the employer assumed that the employee would not return by the end of her twelve weeks of FMLA leave and hired a replacement. When she did return at the end of twelve weeks, she was informed that she no longer had a job, and sued alleging violation of the FMLA.

The Seventh Circuit reversed the trial court, which had found the employee had forfeited her right to reinstatement because she had not given a return date, noting the status of her daughter was changeable, therefore, leave was to be considered "unforeseeable" and she was not required to tell how much leave she needed. In addition, the court rejected the argument that the leave did not qualify under the FMLA because she was caring for her grandchildren and found that she cared for both her daughter and her daughter's children during the leave. In fact, it was argued that she was caring for her daughter by caring for the daughter's children since she was relieving her of the need to care for them.

Professional pointer for employers: While employers are not obligated to provide FMLA leave to care for a grandchild who has a serious health condition, be cognizant of interrelationships with providing direct care to an eligible family member. Gienapp v. Harbor Crest

Workers' Compensation
Same sex partner awarded comp death benefits by state Supreme Court - Alaska

The same-sex partner of a woman who was murdered by a former employee of the hotel where she worked is eligible for workers' compensation death benefits, the Alaska Supreme Court has ruled. The women had been partners for more than a decade, but were not allowed to marry under Alaska law. The Workers' Compensation Board and then the Appeals Commission denied the benefits because eligibility for benefits was limited to "widows or widowers."

Upon appeal, the Supreme Court awarded benefits finding, the "restriction on the statutory definition of 'widow' violates the surviving partner's right to equal protection under the law" as "for same-sex couples, marriage cannot serve as the way to determine whether their relationships are 'serious enough' or the survivor is 'sufficiently dependent to justify awarding benefits' and that an individualized inquiry will be needed." Harris v. Millennium Hotel

Case to watch: State Supreme Court to hear case of fired quadriplegic who tested positive for pot - Colorado

The Colorado Supreme Court will hear arguments in September in the case of a former Dish Network L.L.C. employee who says he was wrongfully fired for using medical marijuana. Brandon Coats v. Dish Network L.L.C., has important implications for the issue of medical marijuana and the workplace.

Federal court blocks regulation limiting sale of new opioid - Massachusetts

Foiling one of the efforts of Governor Deval Patrick to combat the problem of opioid abuse, a federal judge has blocked a Massachusetts regulation meant to restrict sales of Zohydro ER, a powerful "extended release" opioid painkiller, which lacks an abuse resistance formulation, permitting individuals to crush the pills, inhale or inject them, and immediately experience the full effect. The judge found that the "letter of medical necessity" requirement should be blocked because the requirements for that regulation were too vague, particularly as it relates to showing the failure of other treatments. The injunction against the medical necessity letter can be lifted if Massachusetts provides "adequate and constitutional guidance to physicians regarding the prerequisites for prescribing Zohydro in compliance with the regulation," the ruling reads. The court left in place the regulation that pharmacists and not a "certified pharmacy technician, pharmacy technician, pharmacy technician trainee, or pharmacy intern" can only handle the drug.

Teacher in viral video files for workers' compensation - Michigan

A video of a teacher in a Detroit turnaround school district breaking up a fight with a broom went viral in April 2014. The event reportedly led to her being fired and rehired and allegedly has caused her stress and been difficult for her family. According to a Detroit Free Press report her attorney stated "mental health care professionals have restricted her from returning to work in that environment because it would exacerbate her acute stress disorder and potential post-traumatic stress disorder."

Employee fall after termination arises out of employment - Missouri

A 48-year old car salesperson who fell on ice in the employer's lot after he was fired can collect comp benefits because actions winding down an employment relationship still arise in the course of employment. The Commission recently awarded nearly $400,000 in a disputed case. Hartman v. DJSCMS/Suntrip Kia, 2014 MO WCLR Lexis 85

Accessible van is 'appliance' and compensable as is wife's pay - Nebraska

An employee of a hauling company suffered serious injuries when he was crushed by tires of a tractor-trailer and required round-the-clock care after two months in the hospital. After six weeks of in-home care, his wife began caring for him during the hours she did not work her full time job, 7 pm to 7 am and 48 hours on the weekend. While a trial court found in favor of the employee, the company appealed arguing that the accessible van would not decrease pain or speed recovery and that his wife should not be reimbursed for time sleeping or doing household work.

Upon appeal, the Supreme Court agreed with the trial court and awarded pay of $1,080 a week for his wife, including reimbursement of back pay, legal fees and said the definition of medical appliances in workers' comp cases can be liberally construed to include accessible vans, which was needed to help get him to rehabilitation. Simmons v. Precast Haulers

PTSD claim approved for supermarket employee targeted for murder by co-worker's husband - New York

A New York appellate court has ruled that a supermarket assistant manager is entitled to workers' compensation benefits for post-traumatic stress disorder that was exacerbated as a result of being targeted for murder by a co-worker's husband. When the assistant manager called a coworker at her home to discuss a work-related matter, the coworker's husband, who decided they must be having an affair, targeted the manager in an unsuccessful murder-for-hire scheme. The husband also contacted the assistant manager's supervisor regarding the suspected affair, resulting in an investigation and the subsequent decision by the assistant manager, to seek a transfer to another store. Ultimately the pre-existing PTSD worsened and he was unable to work and filed for workers' compensation. Matter of Mosley v. Hannaford Bros. Co., 2014 N.Y. App. Div. LEXIS 4908

Surgeon's hot temper expensive liability for hospital - New York

Although there were others in the operating room and a physician's assistant (PA) was well aware of a surgeon's difficult personality, an appellate court has agreed with the Workers' Compensation Board that threats of physical violence created greater stress than is in the normal work environment. Shortly after the incident the PA was diagnosed with an adjustment reaction and two years later with post-traumatic stress disorder. She has been awarded a weekly wage of $2,415. Lucke v. Ellis Hosp., 2014 N.Y. App. Div. LEXIS 4924

FedEx driver's stroke during holiday season not compensable - North Carolina

A North Carolina appellate court has affirmed a decision of the state's Industrial Commission that denied the workers' compensation claim of a 59-year-old FedEx courier who, after two hours of work, suffered a stroke brought about by a carotid dissection (a tear in the blood vessel). The driver contended that the stroke was brought on by unusual stress - the last day of deliveries before Christmas and a delay in deliveries to a FedEx facility due to a late plane. The court found that the courier's duties did not cause the carotid dissection that led to the stroke, that late planes were common occurrences, and that the courier did not prove why such circumstances might have resulted in his injury. Hill v. Federal Express Corp., 2014 N.C. App. LEXIS 684

Pleading the Fifth Amendment does not preclude workers' compensation - Pennsylvania

Cruz v. Workers' Compensation Appeal Board (Kennett Square Specialties) involves an injured worker who refused to answer questions regarding his United States' citizenship status, invoking his Fifth Amendment right against self-incrimination. The case, which went all the way to the state Supreme Court, revolved around whether refusal to testify about his immigration status constituted proof of working illegally in the United States. According to the Court, the burden faced by the injured worker is to simply prove two things: "(1) he or she was injured while in the course of employment, and (2) the injury resulted in a loss of earning power." Employers bear the legal burden of proving whether injured workers are ineligible for workers' comp because they are undocumented.

Federal court rejects Travelers indemnity's fraud and unjust enrichment case against addictive pain meds - Pennsylvania

Travelers had alleged that it had been required to pay for many millions of dollars of prescriptions related to the drug Actiq, a cancer pain medication, which had become popular among doctors treating workers' compensation claimants who suffered from severe pain. Travelers alleged that the drug was addictive and that it was frequently used improperly, such that workers' compensation claimants suffered further injury and sometimes even death. The district court indicated that the pleadings did not indicate any evidence that Actiq had failed to relieve the workers' compensation claimants' pain. Travelers Indem. Co. v. Cephalon, Inc., 2014 U.S. Dist. LEXIS 95075

Employers not obligated to notify comp claimants of utilization review - Pennsylvania

An employee injured his back and was awarded total disability benefits. When he returned to work, his benefits were suspended, but benefits were reinstated with the reoccurrence of symptoms related to the original injury. At one point, a judge determined that the employee was no longer entitled to wage loss benefits, but that the company was responsible for the medical bills. The employee learned that payment for medications was allegedly denied based on a Utilization Review Determination. Utilization Review is the process through which either party can challenge whether medical treatment is reasonable and necessary. Allegedly, neither he nor his legal counsel were advised of the review. The Workers' Compensation Judge denied the Petition for Penalties, finding that there is no requirement for the workers' comp insurance carrier to serve the Utilization Review Determination on Claimant or Claimant's attorney. Marek v. Workers' Compensation Appeal Board (Logistics Express, Inc.)

Injured employee can be compelled to accept settlement of third-party civil action - Wisconsin

An employee of the Village of Fontana, filed a civil action against Northland Equipment for injuries he sustained while plowing snow for his employer. Northland offered, and the Village's comp carrier accepted, $200,000 to settle. The employee contended that the insurer could not compel him to settle, but the state Supreme Court concluded that an employee could be compelled to accept settlement of the claim, that both the employee and the worker's compensation insurer shared the right to sue third parties, and the employee and the worker's compensation insurer had an equal voice in the prosecution of the claim. Moreover, the circuit court was empowered to resolve any disputes arising between the employee and the worker's compensation insurer during the prosecution of their claim, including those disputes involving settlement. Adams v. Northland Equip. Co., Inc., 2014 WI 79, 2014 Wisc. LEXIS 492