Legal Corner

ADA
Probationary employee entitled to ADA protection

A Marine Corps veteran from the Iraq and Afghanistan wars began work under a probationary period for EZEFLOW. He soon began experiencing seizures that were attributed to post-traumatic stress disorder (PTSD) and he provided a doctor's note requesting six weeks leave to deal with the problem. The leave would begin about the time the probation period ended, but the company decided the probationary period took priority and terminated the employee. EEOC filed suit and a settlement was quickly reached. The company agreed to pay $65,000 and commit to extensive ADA training and non-discrimination in the future.

Takeaway: there is no probationary status under the ADA. Employees enjoy the protections of the ADA starting on day one of their employment.

FMLA
Employer with fewer than 50 employees must provide FMLA leave because manual is misleading

Because of a misleading statement in its employee manual, a Michigan county road commission employee was entitled to coverage under FMLA, even though the commission had fewer than 50 employees, says an appellate court.

The manual stated, "Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the road commission and accumulated 1,250 work hours in the previous 12 months." According to the court's ruling, "The road commission could have qualified its statement concerning employee eligibility" by adding this statement only applied to employees who worked within 75 miles of a site in which it employed at least 50 employees, but did not do so.

Terry Tilley v. Kalamazoo County Road Commission; Kalamazoo County Road Commission Board of Commissioners.

Workers' Compensation
Telecommuter who dies on treadmill entitled to benefits - Maine

When a portfolio specialist and comptroller for the Salvation Army who worked remotely took a break to walk on his treadmill, he suffered a fatal heart attack. He had his Blackberry with him and was monitoring the financial markets on TV. The Maine Supreme Court found the injury to be compensable because it occurred during work hours, in a place that the Salvation Army sanctioned for his work, while he was using the BlackBerry that the Salvation Army provided to him, and work stress combined with his underlying heart disease resulted in his death.

Court denies MIT request to dismiss lawsuit on grounds of exclusive remedy - Massachusetts

The family of an MIT doctoral student who killed himself in 2009 is suing the university, two professors, and an associate dean, alleging the officials did not do enough to help him even though they had for months shared concerns about his mental well being. The college had argued the young man, who was a research assistant, should legally be classified as an employee, thereby limiting its liability to the exclusive remedy of workers' comp. However, a Superior Court Judge denied the request and allowed the suit to proceed.

Truck driver's claim for injuries while acting as Good Samaritan denied - Michigan

In Eastling v. Production Tooling, Inc., the Michigan Workers' Compensation Board of Magistrates denied benefits, finding a truck driver was not acting in the course and scope of employment when he was struck by a motor vehicle after he stopped on the highway to help someone in an accident.

Ambiguous drug policy downfall in anti-drug policy defense - Missouri

In Missouri, failure to obey any rule or policy related to a drug-free workplace can result in a loss of 50% of benefits if the injury was sustained in conjunction with the use of non-prescribed drugs. In Hertzing v Beck Motors, the Commission affirmed a denial of an anti-drug policy defense for an employee who tested positive for cocaine.

The penalty was denied because the employer failed to establish the accident was sustained in conjunction with the use of drugs. Further, the employer did not show the employee violated the drug free work place policy, which permitted one test but shifted the burden to the worker to request a confirmatory test. The worker was not notified of the positive drug test for 46 months and then failed to produce the sample for further testing.

Widow of health care worker who died of hepatitis C is due benefits - Missouri

The widow of a heath care worker who died from complications related to his hepatitis C is entitled to benefits despite the fact that the man received a blood transfusion in 1970 that his employer argued could have given him the disease. Working during a period before protective equipment and safe practices were instituted, the worker contracted the disease in 1991 but continued working until 2006, at which time he filed for workers' comp. When he died a year later, his widow substituted as a party to the claim. While an administrative law judge and Missouri Labor and Industrial Relations Commission denied benefits, on appeal, the Missouri Court of Appeals remanded the matter for the commission to reconsider the evidence, stating that a "claimant must submit medical evidence establishing a probability that a working condition caused the disease even though it may not be the sole cause," and the Commission reversed its decision.

Insurance adjuster entitled to workers' comp for toilet dispenser injury - Missouri

An employee did multi-state surveillance work and was watching a person's home near Sikeston, Missouri in 2011, when she stopped at a Macdonald's to use a public restroom. A toilet paper dispenser became partially dislodged from the wall and hit her head and shoulder. She took pictures of her bruising and sent them to her supervisor. The ALJ in a temporary award found that claimant's accident arose in the course of her employment because she was a traveling employee and she was being paid for her time and travel expenses and not engaged on a personal errand. The employer appealed, arguing the risk was not related to employment and was an equal exposure to non-employment life. The commission in a supplemental opinion found that claimant's work on the road created a unique occupational hazard to use public restrooms and that public restrooms had a higher risk of unknown maintenance problems.

Eberhard v G4S/Walkenhut, 2015 Mo WCLR Lexis 1

Court explains difference between "Sequence" and "Consequence"- North Carolina

A North Carolina appellate court affirmed a state Industrial Commission decision that a worker's depression was causally connected to a work-related injury and, therefore, compensable. The employer contended that testimony by the worker's medical expert was improper since the expert had relied upon the post hoc, ergo propter hoc fallacy (the mistaken notion that because one thing happens after another, the first event was a cause of the second event)-confusing "sequence" with "consequence." The appellate court disagreed. Citing relevant case law, the court observed that where a medical expert relies upon something more than mere temporal sequence, a post hoc, ergo propter hoc issue did not exist. The medical expert had not relied merely upon the existence of a temporal sequence, but her opinion was also based upon a combination of her evaluations and interviews of the worker, the worker's reports to her, all of the subjective testing and films, her subjective physical examinations and her experience treating other patients.

Derrick v. City of Raleigh

Exclusive remedy bars construction superintendent from negligence action - North Carolina

The Fourth Circuit Court of Appeals affirmed a federal district court's dismissal, on exclusive remedy grounds, of a negligence action filed by a North Carolina construction superintendent against one of his employer's subcontractors following an accident at a Virginia construction site. The Fourth Circuit held that the law of Virginia-and not that of North Carolina-controlled since the accident occurred in Virginia, resulted from the alleged negligence of a Virginia independent contractor who was performing work within the state and was required by Virginia law to have workers' compensation insurance.

Demetres v. East West Constr., Inc.

Exclusive remedy does not apply when injury foreseeable - Oklahoma

In 2013, the Oklahoma Legislature rewrote Oklahoma workers' compensation laws to shift the state from a court-based system to an administrative one. In a decision that surprised and upset many, a Pottawatomie County district judge ruled the state's workers compensation law doesn't provide exclusive remedy for "foreseeable" injures and an injured tire worker can sue his employer for negligence.

Liquor store manager entitled to workers' comp for PTSD arising out of armed robbery - Pennsylvania

In October 2011 we wrote about a liquor store manager who was robbed at gunpoint but denied Workers' Comp for a psychic injury, the court finding the armed robbery was a normal condition of the job. This decision was recently vacated by the state's Supreme Court, which found that the armed robbery at issue wasn't a normal working condition. In reversing its earlier decision, the Commonwealth Court relied on a recent decision regarding PTSD and a state trooper and found that much of the workplace training was focused on workplace violence, in general, rather than on armed robberies specifically and noted that the employer's own training materials referenced armed robberies as infrequent occurrences.

Former State Senator's aide denied benefits for fall at Christmas party - Pennsylvania

Despite her claim that her injury was work-related, upon appeal, the Commonwealth Court has refused to approve workers' compensation benefits for a former state Senate aide who fell down some steps while leaving a Christmas party for Sen. Michael Stack. The court found her attendance was voluntary and not a required part of her job as a receptionist. Staffers had to use vacation or compensatory time to attend the fete, the judge observed.

Pain management physicians exempt from state's community doctor rule - Tennessee

A Special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee held that under the recently enacted pain-management provisions of Tenn. Code Ann. § 50-6-204(j) (2014), pain-management physicians whose offices are within 175 miles of the injured worker's residence are exempt from the "community" doctor rule set forth in Tenn. Code Ann. § 50-6-204(a)(4), which generally requires the employer to provide the employee with a list of three qualified physicians in the employee's "community."

Patterson v. Prime Package & Label Co., LLC, 2014 Tenn. LEXIS 1037

Worker's resignation due to pain isn't meaningful return to work -Tennessee

In an unpublished decision, the Tennessee Supreme Court held that a worker who returned to work, but resigned because of pain, was entitled to 68 percent permanent partial disability benefits. Although the worker advised his physician of his continuing pain following back surgery for a serious injury, the physician returned him to work without restrictions. The worker resigned due to continuing pain and the court found that the worker's resignation was reasonably related to the workplace injury.

Keller v. Thyssenkrupp Elevator Corp. No. W2013-02529-SC-WCM-WC (Tenn. 11/21/14, unpublished)