Legal Corner

ADA
Severe obesity claim of discrimination can proceed

A bus driver of the Chicago Transit Authority sought to return from an extended medical leave and was cleared through a fitness exam to return to work, but failed a safety assessment and was not allowed to return to work. The Authority argued that obesity is not a disability unless it is due to a physiological disorder and the employee had not alleged a physiological disorder.

However, the Court noted that there is a split among Circuit Courts on what is required for obesity to be considered a covered disability. The court did not take a position on what approach is right, but said "[e]ven if Plaintiff is ultimately required to prove that his obesity was caused by a physiological disorder, he was not required to allege the same." Richardson v. Chicago Transit Authority, 2016 U.S. Dist. LEXIS 143485 (N.D. Ill. 2016)

FMLA
Medical privacy protected under FMLA

In Scott Holtrey v. Collier County Board of County Commissioners, the Florida U.S. District Court ruled the employer violated the FMLA when a management-level employee allegedly disclosed the employee's serious health condition with his genitourinary system to co-workers and subordinates at a staff meeting. The employee became the subject of jokes and obscene gestures. While the County Board argued that the interference claim failed because it granted the employee FMLA leave, the Court disagreed, "The enforcing labor regulation makes clear that confidentiality of medical information is a right provided and protected under the FMLA."

Doctor's certification and job description key factors in defining essential functions

A laborer for the City of Red Bank in Tennessee, who rose to the position of Assistant to the Director of Public Works, did significant outdoor work. His job evolved and required different responsibilities, more and more of which were outdoors. He developed skin problems and was diagnosed with lupus. His dermatologist said he needed to be indoors.

After an indefinite FMLA leave lasting six months, he returned to work and bought protective clothing, but it failed to provide adequate protection. He sought another FMLA leave and his doctor 's certification emphatically stated that he must work indoors. When it was determined he was not qualified for the two open indoor positions, he was terminated.

The City prevailed at the federal court level, and upon appeal the Sixth Circuit Court of Appeals affirmed that the worker did not show that he could perform the essential functions of his job with or without accommodation. While the employee and the doctor attempted to modify their position after the termination decision, the City had a right to base its decision on the information available at the time of termination. Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016)

Workers' Compensation
Michigan federal court reiterates that RICO may not be used for bad faith claims - United States

Citing two earlier precedents, a federal district court sitting in Michigan ruled that racketeering activity leading to a loss or diminution of benefits that a worker expects to receive under a state workers' compensation system does not constitute an injury to "business or property" under the Racketeer Influenced and Corrupt Organizations ("RICO") Act. The worker tried to distinguish his case by alleging tortious activity by "independent medical examiners." Gucwa v. Lawley, 2017 U.S. Dist. LEXIS 8698 (E.D. Mich., Jan. 23, 2017)

Medicare reimbursement is limited to related injuries identified by diagnosis codes - California

The U.S. District Court for the Central District ruled in favor of the California Insurance Guarantee Association (CIGA) in its ongoing challenges against the Centers for Medicare and Medicaid Services (CMS) over the Medicare Secondary Payer (MSP) practices. CIGA faced Medicare Conditional Payment demands for three separate workers' compensation claims that had settled. Included in the demands were diagnosis codes unrelated to the accident.

CIGA noted to the court that it is not uncommon in conditional payment letters from the CMS for multiple diagnosis codes to appear under a single charge - some of which relate to a medical condition covered by the primary plan, but others that do not. CMS routinely determines if any of the codes relates to a covered condition and seeks reimbursement for the full amount. California Insurance Guarantee Association v Burwell, et al case no. 2:15-cv-0113odw (ffmx)

Broad interpretation of employment finds union responsible for member's injury - California

In Mason v. S.E.I.U. Local 721, 2016 Cal. Wrk. Comp. P.D. LEXIS 618 (Lexis Advance), the WCAB, reversing the WCJ in a split panel opinion, held that an employee of the County of Los Angeles, Department of Children and Family Services who was a member of S.E.I.U. Local 721 was acting as an employee of S.E.I.U. Local 721 at the time she suffered an injury while participating in a union rally. The WCAB found employment by the union, noting the injured worker was rendering service for "another," (the union), and that the union provided transportation, food and water while at the rally, and that the services and goods provided by the union were akin to economic substitutes for wages.

Injured worker can't switch to doctor in different specialty - Florida

In a case of first impression, the Florida 1st District Court of Appeal ruled that a worker exercising his statutory right to a one-time change in physician was not entitled to choose a new doctor in a different specialty simply because the carrier did not respond in a timely fashion. In Retailfirst Insurance Co. v. Davis, an employee who had injured his leg had received authorization for treatment with a family practice physician and later sought authorization for care with an orthopedist. The court noted that procedures exist for such a request.

Change in economic conditions not basis for increased benefits - Illinois

In Murff v. IWCC (City of Chicago), No. 1-16-0005WC, 01.06.2017, an injured worker returned to work in a modified capacity. Later, he was determined to have reached maximum medical improvement and was awarded benefits and continued to work in the modified capacity for about six months. He was then told him that if he could not return to his old job duties, he'd have to go home, so he went on disability leave and filed a claim seeking additional comp benefits.

The Appellate Court upheld the findings of the lower courts that there was no evidence he had not suffered any material change in his physical or mental condition since the award of benefits. An increase in economic disability is not a basis for additional comp benefits.

Lung disease from pigeon droppings lead to lifetime of benefits - Missouri

In Lankford v Newton County an investigator with the county prosecutor's office would smoke frequently on the courthouse roof, which was a popular place for pigeons. In 2002, he was diagnosed with COPD as a result of ammonia exposure from investigating a meth lab and in December 2007, after undergoing lung surgery, to remove half of his right lung, which contained a nodule that was suspected to be cancerous, he suffered a stroke that left him unable to work.

He filed a workers' comp claim asserting that he was exposed to pigeon droppings during the course and scope of his employment. Doctors noted that a biopsy of his lung nodule showed the growth contained bacteria and a fungus linked to pigeon droppings. He died of complications and his wife became the claimant. The case was appealed up to the Court of Appeals, but in each case, the award of $167,811.62 in permanent total disability benefits to the deceased worker, as well as more than $500 in lifetime weekly workers compensation benefits to his wife, was approved.

Change in job duties means claim compensable despite pre-existing condition - Missouri

In Clawson v Cassens Transport Company, a union car hauler had a pre-existing knee condition as a result of a work-related accident a few years earlier. After working for 3.5 years after the accident, his workload increased and he began working 6-7 days per week. When he complained of pain in his knee, the employer denied the claim and declined to provide medical treatment. He sought medical treatment on his own, was advised to have surgery and a doctor opined the issue was casually related to the increase in his job duties.

At a hearing, an ALJ found that although there was a pre-existing condition, the prevailing factor in causing his worsening condition was the change/increase in his job duties.

Subcontractor found guilty for worker's death - Missouri

The U.S. District Court in Kansas City found Pacific-based DNRB Inc., a steel erection company doing business as Fastrack Erectors, guilty in the 2014 death of an employee who fell while working on a warehouse construction project in Kansas City. The court found that "Fastrack was aware of safety violations but willfully ignored them, with tragic results." Fastrack was a subcontractor to ARCO National Construction - K.C., Inc. and the contract required that personnel who were working or present at heights in excess of six feet shall be provided adequate fall protection and Fastrack failed to do so.

Undocumented worker due comp benefits - New York

A U.S. District Court judge dismissed an insurer's request to forgo payment of workers' compensation benefits for an undocumented landscaper's injury. The insurer, NorGuard Insurance Co., sought a declaratory judgment that it wasn't obligated to pay medical expenses, indemnity payments or comp benefits because the worker had entered the U.S. illegally.

The court noted that the insurers allegations simply do not "fall within the zone of interests protected by law invoked. Such violations are the concern of the Internal Revenue Service, Homeland Security, and like agencies."

Opera singer can sue Met for injuries sustained in fall - New York

Finding that her employment contract was with her personal holding company and not the Metropolitan Opera House, an Appellate Court found that a prominent opera singer can sue the famous facility that featured her in over 500 performances. Noting that New York law generally considers a person engaged in the performing arts an employee of the establishment where he or she performed, the exception here was the singer was stipulated to be an employee of another employer. Therefore, the exclusive remedy provisions of workers' comp do not bar her suit. White v. Metropolitan Opera Assn., Inc., 2017 N.Y. App. Div. LEXIS 90 (Jan. 5, 2017)

No reason to stop compensating attendant care by wife - North Carolina

In Thompson v. International Paper Co., No. COA15-1383, 01/17/2017, a worker was burned over 23% of his body in a work-related accident. His wife took FMLA leave from her job to care for her husband and, when she returned to work, she arranged her schedule to accommodate his medical needs. While the company accepted the burn injuries as compensable, it denied reimbursement for attendant care services provided by his wife. The full Industrial Commission ruled that attendant care by his wife was unnecessary after Dec. 31, 2012, but the appellate panel disagreed. While the need for care may have lessened, treating physicians had found attendant care was medically necessary.

Futility in finding another job allows continuing benefits - North Carolina

In Neckles v. Teeter, a 68-year-old employee who had moved to the U.S. from the Caribbean island nation of Grenada had worked as a meat cutter and suffered an injury to his lower back, right hip, and right arm and leg for which he was compensated and received temporary total disability. A functional capacity evaluation concluded he couldn't go back to his job as a meat cutter, but he was capable of a job that required light physical demands, however, a vocational rehabilitation specialist determined it would be difficult for him to get any job.

Three years later, the employer filed a form alleging the worker was no longer disabled. After a series of appeals, the Court of Appeals ruled that the worker should continue to receive TTD benefits and coverage of medical expenses. According to the court, it was necessary to look at the totality of the evidence, including age, education, work experience, work restrictions for the compensable injury, other unrelated health conditions (i.e., diabetes, gout, and angina), and trouble communicating (a thick accent).

IRE that didn't consider worker's psyche invalidated - Pennsylvania

A divided Supreme Court ruled that an impairment rating evaluation (IRE) that failed to consider a worker's psychological injuries from an industrial accident was invalid, noting an IRE doctor must consider all conditions that he or she believes are related to the worker's injury, not just those that are designated in the notice of compensation payable (the "NCP".)

In this case, an employee suffered an electric shock and received 104 weeks of temporary total disability benefits at which time the employer requested an IRE. The doctor assigned a 6% permanent impairment rating, but the employee argued his compensable injury included damage to his psyche as well as his hands. A workers' compensation judge found the worker had adjustment disorder and post-traumatic stress disorder that were compensable consequences of the accident. While the Workers' Compensation Appeal Board and the Commonwealth Court reversed this decision, the Supreme Court overturned their ruling, noting that the IRE doctor must determine the level of impairment and in this case did not assess psychological conditions, nor determine whether those conditions were fairly attributable to the accident. Duffey v. Workers' Compensation Appeal Board (Trola-Dyne, Inc.)

Supreme Court affirms franchisors do not employ their franchisees' employees - Pennsylvania

In Saladworks, LLC v. W.C.A.B. (Gaudioso), the question revolved around whether the franchisor, Saladworks, was a statutory employer. Under Pennsylvania law, when an employee is unable to recover from its direct employer, the employee can file a workers' compensation claim against a "statutory employer." A Workers' Compensation Judge initially held that Saladworks was not a statutory employer, however, the Workers' Compensation Appeal Board reversed that decision. On appeal, the Commonwealth Court reversed the Board's decision recognizing the difference between Saladworks' business model and the business engaged in by its franchisee. The Supreme Court dismissed the appeal, effectively upholding the Commonwealth Court's decision.

Penny wise and pound foolish: attorney's fees of $27,000 awarded for $187 medical claim - Tennessee

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers' Compensation Appeals Panel of the Supreme Court affirmed a trial court's award of attorney's fees and expenses in the amount of $27,353.63, in connection with an employee's petition to compel the employer to pay $187 for two trigger point injections. The workers' compensation carrier had sought a peer utilization review (UR), although it had paid for earlier injections. An authorized physician provided the injections to the injured employee, but the UR provider found the injections unnecessary. Following a hearing, the trial court disagreed.