Legal Corner

ADA
EEOC can't bar Honeywell wellness program penalties

A Minnesota federal judge refused to bar Honeywell International Inc. from penalizing workers who refuse to submit to biometric testing that's part of a corporate wellness program, despite the U.S. Equal Employment Opportunity Commission's (EEOC) stance that the testing isn't voluntary and violates federal law. Saying she was not ready to make a preliminary decision in the case, the judge said the company was better positioned to refund money improperly collected if she ultimately rules against it than to assess penalties after being blocked from doing so if she decides the policy is OK.

FMLA
Suit of worker fired after returning from leave reinstated

In Jeanne Lee Wallner v. J.J.B. Hilliard, W.L. Lyons L.O.C. dba Hilliard Lyons Asset Management, the 6th U.S. Circuit Court of Appeals reinstated a Family and Medical Leave Act (FMLA) lawsuit filed by a worker who was fired nine days after returning from FMLA leave, allegedly in part for being about five minutes late for work for a few days. The opinion noted that a reasonable jury could find the decision to terminate the employee did not depend upon her tardiness alone, and that it would be reasonable for a jury to infer her leave "generated ill-will toward her" from her direct supervisor and factored into his decision to terminate her.

Workers' Compensation
Employee must prove worsening symptoms are not due to age - Massachusetts

When an employee's work-related medical condition grows worse, the employee has the burden of proving the worsening of the condition is not caused by aging, but by the work injury. In Scott Hibbard v. Hensley Enterprises, the Department of Industrial Accidents Reviewing Board considered an insurer's appeal from a decision ordering payment of ongoing benefits to an employee who had injured his back at work by lifting a garage door in 2008. After being out for six months, he returned to light duty, but several months later, was terminated and received unemployment compensation.

He then was awarded workers' compensation benefits, arguing he was incapable of performing any work based on his functional level and severe pain, which had become much worse. On appeal, the judge who reviewed the report did not make specific findings that the worsening symptoms were due to the work injury, and not to the employee's advancing age. The Reviewing Board vacated the award of permanent and total incapacity benefits.

Injury on parking lot compensable in spite of equal exposure defense and lack of ownership by employer - Missouri

In Scholastic v David Viley, a Missouri appellate court affirmed an award of benefits to an employee who sustained a severe knee injury when he slipped and fell on ice and snow in a parking lot that was not owned by his employer. The court argued that the employer "controlled" the lot since, under the terms of a lease arrangement, it had the exclusive use of the area.

The employer further contended the employee had an equal exposure to the hazard of falling in icy parking lots away from work and therefore the claim should not be compensable. The employee noted that on the day of his injury, the parking lot had snow and ice on it when he arrived at work, and the snow and ice were still there when he left nine hours later. The court found that the risk or hazard faced by the employee was not snow and ice in general throughout the community, but rather the condition of that specific parking lot.

No 'wet floor' sign means higher disability benefits for nurse - New Mexico

New Mexico workers comp law entitles a worker to a 10% increase in benefits if the employer "failed to provide a safety device and that failure resulted in the accident or increased the severity of injury." The state Supreme Court has ruled that a hospital nurse who was injured when she fell on the job is entitled to an increase in disability benefits because her employer failed to post a "wet floor" sign. While the hospital argued that it made "wet floor" signs available to custodians, the court said that was not enough.

Retired man's death benefit properly based on last year of work- North Carolina

In Lipe v. Starr Davis Co., Inc., 2014 N.C. App. LEXIS 1127, a former employee was exposed to asbestos during his career, but retired for a reason unrelated to the exposure. At that time, his average weekly wage was $606.36. Three years later, he was diagnosed with asbestosis and in February 2010, was diagnosed with lung cancer, which the employer conceded was causally connected to the asbestosis exposure.

The employer posited that death benefits should be based on the minimum benefit allowable-$30.00 per week-since the employee had enjoyed no earnings at the time he was diagnosed with asbestosis and none when he was diagnosed with cancer. An appellate court disagreed and affirmed a determination by the state's Industrial Commission that based an award of death benefits on the wages the deceased employee earned during the last full year of his employment.

Traveling employee exception to 'coming and going' rule applies to cable technician - Pennsylvania

In Holler v. Workers' Compensation Appeal Board (Tri Wire Engineering Solutions, Inc.), the Commonwealth Court ruled that a cable technician, who is given a company van to drive to and from work, and is prohibited from using the vehicle for any non-work purpose, is entitled to benefits under the Workers' Compensation Act as a traveling employee with no fixed place of work.

Testimony of non-medical witness insufficient to rebut IRE evidence - Pennsylvania

In Loysville Youth Center v. Workers' Comp. Appeal Bd. (Slessler), 2014 Pa. Commw. LEXIS 519 an appellant court held that while a psychologist may provide competent testimony in the claim petition context, if a claimant seeks to rebut competent impairment rating evaluation (IRE) evidence, the evidence must be presented only by those persons the General Assembly has deemed qualified to engage in rating evaluations-osteopathic or medical doctors.

Bitten by co-worker's dog, cook awarded benefits - Pennsylvania

While taking a smoke break with several co-workers, a part-time cook sustained facial lacerations and permanent scarring when he was bitten in the face by a co-worker's dog. A Pennsylvania appellate court found that the injuries occurred in the course and scope of the employment, noting the smoking area was on the employer's premises and had been established by the employer for just that purpose. The court concluded that although petting the dog was not part of the line cook's employment, the activity was a small temporary departure from the work routine and was not the sort of deviation that would remove the cook from the course of his employment, therefore the injury is compensable.

Retaliatory firing claim can be pursued when no comp claim was filed - Pennsylvania

The Pennsylvania Commonwealth Court found that an ex-Lehigh Valley Hospital employee could pursue a wrongful termination suit after she allegedly was fired for seeking compensation for a job-related injury, although no claim was actually filed with the Workers' Compensation Bureau. The court found that it is sufficient for the former employee to allege that a work-related injury was reported to the employer and the employer paid compensation in lieu of workers' compensation benefits. Owens v. Lehigh Valley Hospital, 2014 Pa. Commw. LEXIS 529

Asbestos "community exposures" that can be untangled from workers' comp exclusive remedy may proceed - Wisconsin

Although a Wisconsin judge won't revisit decisions dismissing several asbestos claims against Weyerhaeuser Co. based on the exclusivity provision of the state Workers' Compensation Act, he will permit nuisance claims of "community exposure" to proceed to the extent that they can be "untangled" from those barred by workers' compensation statutes.