Legal Corner

ADA
Telecommuting is reasonable accommodation

The 6th Circuit Court of Appeals, which has jurisdiction over Kentucky, Michigan, Ohio, and Tennessee, has determined that attendance is no longer synonymous with physical presence in the workplace. The case, EEOC v. Ford Motor Company, involved a buyer who had severe irritable bowel syndrome. The buyer formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Ford determined that the position was not suitable for telecommuting because group meetings and group problem-solving were best done face to face and offered other solutions, which the employee rejected.

After a performance enhancement plan failed, Ford terminated her employment and the EEOC filed a lawsuit. While the district court granted summary judgment to Ford, the 6th Circuit reversed the decision, noting that there was a genuine dispute of the facts regarding whether all of the job duties could be performed from a remote location.

With advances in technology, the Court stated, the workplace can be anywhere that an employee can perform his or her job duties. In this case, because the Court found evidence in the record that much of the work could be done over the telephone or by videoconference, and other buyers had worked from home, the Court allowed the ADA failure-to-accommodate claim to proceed.

In light of the decision, employers should review job descriptions and telecommuting policies and, when possible, clearly articulate when physical presence is an essential function of the job.

Workers' Compensation
Negative reaction to flu shot compensable, but employer not negligent - California

A truck driver sustained total and permanent disability from a condition known as transverse myelitis caused by the employee's adverse reaction to a flu shot received at a "Flu Prevention Clinic" held on the employer's premises. While the vaccination was voluntary and a release form was signed, the Workers' Compensation Appeals Board (WCAB) had earlier determined the truck driver's injuries were compensable, that the flu vaccination inoculation occurred within the course and scope of the employment. That finding is in keeping with the great majority of decisions around the nation, according to Lexis Nexis.

The truck driver filed a third-party claim against the flu vaccine manufacturer. If an employer is found negligent, California precedent reduces or eliminates the employer or insurer's credit from such settlements. Although a Workers' Compensation Judge (WCJ) found the employer answerable for harm caused by the negligent failure of the contractor, the WCAB disagreed and the insurer was entitled to a full $415,000 credit towards its future workers' compensation liability in the case. Vilarino v. Chromatics, Inc.

Heightened causation standard leads to denial of benefits for employee who suffered blood clot and embolism - Nebraska

An employee, who had driven a truck for 35 years and typically worked 10-hour days in a seated position, suffered a serious blood clot while working. He was diagnosed with deep vein thrombosis, as well as a likely pulmonary embolism and received a filter to prevent future blood clots from entering his pulmonary system, but continued to experience medical issues.

In a recent decision, Wingfield v. Hill Bros. Transp., Inc., the Supreme Court of Nebraska upheld the lower court decision that used the split causation test, which must prove both medical and legal causation, in denying the claim. Typically used in attributing the cause of heart attacks, the split test of causation must show that the exertion or stress encountered during employment is greater than that experienced during ordinary life in order for the claim to be compensable.

Employer ordered to reimburse worker for medical marijuana - New Mexico

One of the first cases for any appellate court relating to medical marijuana and workers' compensation was recently decided by the New Mexico Court of Appeals. Eight years after a serious injury, an automotive services worker was determined to have reached maximum medical improvement with a 99% permanent partial disability. Spinal surgery had failed and the injured worker was taking multiple narcotic medications for the pain. Based on the severe chronic pain, he was certified to receive medical marijuana.

When a Workers' Compensation judge approved compensability, the employer and insurer appealed, arguing in part that marijuana is a controlled substance under federal law, and paying for it would be a federal crime. The appeals court rejected this argument, noting that the employer had not challenged the legality of New Mexico's Compassionate Use Act under the federal Controlled Substances Act and that the U.S. Department of Justice has generally deferred to state and local laws on enforcing marijuana use except in high-priority cases involving illegal trafficking or distribution to minors. Vialpando v. Ben's Automotive Services

Rent on accessible home is compensable - North Carolina

A quadriplegic man's former employer must pay the rent on his handicapped-accessible home as part of his workers' compensation claim because he had no home of his own that could be renovated for accessibility, ruled the North Carolina Court of Appeals. An undocumented worker suffered a spine fracture when a crane cable broke, that left him a quadriplegic. While the employer and the insurer argued that rent is an "ordinary expense of life" to be paid from disability benefits, the Court of Appeals found the additional cost of renting handicapped accessible housing is not an ordinary expense. Tinajero vs. Balfour Beatty Infrastructure, Inc.

Undocumented worker's heart attack while fleeing immigration raid not compensable - North Carolina

A lumber mill employee who had used falsified records to obtain employment suffered a fatal heart attack while fleeing from the employer's premise to avoid a presumed raid by INS officials. The appellate court agreed with the state's Industrial Commission that there was no increased risk to the employee of an immigration raid as part of his employment with the employer; the employee's death was caused by a risk which was neither "inherent or incidental to the employment" nor a risk to which the employee "would not have been equally exposed apart from the employment." Paredones v. Wrenn Bros

Court affirms concept of DeFacto NCP - Pennsylvania

In Furnari v. Workers' Compensation Appeal Board (Temple Island), the injured worker tore a tendon in his knee and required surgery. While the workers' compensation insurance carrier issued a medical-only Notice of Compensation Payable (NCP) the employer continued to pay the injured worker his regular salary. The injured worker then went back to a modified duty job for about five months before resigning. The case went through several appeals and ultimately the Commonwealth Court ruled that payment of an injured worker's salary and medical expenses in lieu of compensation constitutes a de facto NCP. The Court also ruled that, when there is both a documented work-related injury, either by adjudication or acceptance such as a NCP, and that injury gives rise to a disability, the proper burden of proof is that of a reinstatement petition. In the absence of both or either of these prongs, the burden of proof is that of a claim petition.

Case addresses ridesharing and workers' compensation - Pennsylvania

In National Casualty Co. v. Kinney, the Superior Court addressed the relationship of ridesharing and workers' compensation. The Court ruled that an employee is not within the course and scope of his or her employment when commuting to work while participating in a ridesharing arrangement in which (1) the employee selects a van or van company of his or her choosing, (2) participating employees deal directly with van companies to maximize the value of their vouchers, (3) the employer does not require employees to participate in the arrangement, and (4) participating employees can opt-out at any time. The Court permitted the third party action to proceed, ruling that it was not barred by the Workers' Compensation Act.

Pre-existing condition does not negate compensability - Tennessee

A special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee has held that in cases involving pre-existing conditions, the law does not weigh the relative importance of the pre-existing condition and an employment-related cause, nor does it look for primary or secondary causes. The law merely inquires whether the employment was a contributing factor.

Bean v. Johnson Controls, Inc. involved a worker who had suffered a spinal injury in 2002 and had surgery in 2003. While he had residual symptoms, he had no medical restrictions. The special panel agreed with the state trial court that a November 2009 herniated disc, and the resulting disability, was work-related and that the employee should be awarded temporary total and permanent partial disability benefits.

Paralyzed lawyer denied benefits for a motorcycle crash he says was related to marketing the firm - Wisconsin

A lawyer played poker with a group of small business owners and his firm reimbursed him for the snacks and drinks he brought to the weekly game, as well as for trips to Las Vegas that he took with the group. The firm did not cover his stake.

The lawyer took a trip with one of his poker pals, who was a biker, to a Harley Davidson rally, where he would also be able to see a cabin that was the subject of some litigation he was working on for his poker pal. On the way, he asked if he could drive the motorcycle, hit some gravel, crashed and was left a paraplegic.

While the lawyer characterized his trip as part of a marketing effort on behalf of the firm, the state Court of Appeals concurred with lower court rulings that the motorcycle trip was 'simply a social outing among friends who occasionally did business together'. Jacob Westerhof vs. State of Wisconsin Labor and Industry Review Commission