Legal Corner

ADA
Employee with mental illness can be terminated for inappropriate conduct

In Medina v. Berwyn South School District 100, N.D. Ill., a school district employer that terminated an administrative employee who recently returned from FMLA leave for major depression and generalized anxiety disorder did not violate the ADA or the FMLA, according to the U.S. District Court for the Northern District of Illinois. When she returned to work she shared an office with two other administrative assistants and when asked by the principal to translate a letter argued it was difficult to concentrate and she had too many other things to do.

When she met with the principal, she was told she was insubordinate and, feeling anxious, called her therapist who told her to call an ambulance. After hanging up on 911 twice, she placed the call and when leaving on the gurney she yelled at the principal and assistant principal in front of the students. Her doctor sent a note asking to place her on medical leave, but the district conducted an investigation and decided to terminate her due to misconduct.

She filed suit claiming she was discharged because of her disability, but the court found "when an employee engages in behavior that is unacceptable in the workplace... the fact that the behavior is precipitated by her mental illness does not present an issue under the Americans with Disabilities Act; the behavior itself disqualifies her from continued employment and justifies her discharge."

Adverse action against an employee over the fear that the employee will develop a disability nixed by court

An applicant received a conditional offer of employment from Burlington Northern Santa Fe pending a medical evaluation, among other things. The company believes that hiring individuals for a safety sensitive position who have a body mass index of 40 or greater, pose a significant risk for diabetes, sleep apnea, and heart disease. While the applicant had none of these, his BMI was 47.5.

The company withdrew the offer and the applicant sued under the ADA. The company and the court agreed that the applicant was not disabled by his obesity, but the U.S. District Court, Northern District of Illinois found that there were triable issues as to whether the company treated him as if he were a "ticking time bomb" who at any time could be unexpectedly incapacitated by obesity-related conditions.

While the company pursued a business necessity defense, the court found it was impossible to determine whether it was truly necessary to exclude individuals with Class III obesity from safety-sensitive positions. Shell v. Burlington Northern Santa Fe Railway Co.

Workers' Compensation
Supreme Court defines Independent Contractors - California

In a groundbreaking decision, Dynamax vs The Superior Court of Los Angeles County, the Supreme Court rejected "The Borello test," a ten-point test which was used as a standard test for employment and applied the much narrower three factors of the ABC test: i.e., to show that a worker is free from its control, performing work outside the usual course of its business, and customarily engaged in independent work.

This case was decided for the purposes of the state's wage orders, and not directly related to workers' compensation, but many speculate it sets the stage for more workers being designated as employees.

Benefits for treatment from physician not approved by employer denied - Georgia

In Starwood Hotels & Resorts v. Lopez, the Court of Appeals overturned a judge's order awarding an injured worker payment for treatment by the doctors she selected without the approval of her employer. The employee slipped and fell and initially went to one of the approved facilities and was diagnosed with an elbow fracture. When she returned to work, the hotel had changed management and she was assigned to a less physically demanding position, but stopped working because of continued pain and sought treatment from her own physicians. When she filed for reinstatement of her TTD benefits, Starwood requested a hearing to determine if it was liable for additional benefits.

An ALJ determined that Starwood's hearing request had effectively been a challenge to her claim, which entitled her to choose her physician. After a series of appeals with different results, the Court of Appeals found Starwood's hearing request was not the same thing as denying benefits, but the TTD award was appropriate.

Medical providers can't charge interest on late workers' comp claims - Illinois

In Medicos Pain & Surgical Specialists S.C. and Ambulatory Surgical Care Facility LLC. vs Blackhawk Steel Corp, the medical providers sought to recover $37,229 in interest under the Workers' Compensation Act for long-awaited payments related to care for an employee who fell four stories off a truck in 2010. In overturning the trial court's ruling, the appellate court found that even though the Workers' Compensation Act provided for interest payments, the medical service providers are not members of the class for whose benefit the Act was enacted. It noted this type of dispute belongs with Illinois' Workers' Compensation Commission, and not in the courts.

Carrier's subrogation rights upheld in spite of alleged misconduct - Illinois

In Estate of Rexroad v. Mid-West Truckers Risk Mgmt, the court ruled that a carrier's right to reimbursement is "absolute," and cannot be denied because of alleged wrongdoing. When there is a recovery available from third parties who are responsible for the injury, "fairness and justice require that the employer be reimbursed for the workers' compensation benefits he has paid or will pay."

Spider bite compensable - Illinois

In Jeffers v. State of Illinois/Tamms Correctional Center, an educator worked in a classroom at a correctional center that was not open to the public and was known to have pest problems in the past. She was bit and diagnosed with a brown recluse spider bite and treated with antibiotics, pain medication, and steroids.

While an arbitrator denied benefits, the Commission reversed, noting the educator was exposed to a greater risk of encountering insects and spiders at the prison than that of the general public.

Employee definition in Independent Contractor statute does not apply to workers' compensation - Massachusetts

The Supreme Judicial Court ruled the state's independent contractor statute does not determine employee status for workers' compensation benefits. The reviewing board of the Department of Industrial Accidents noted that the law governing employment relations in the state is far from uniform.

The case involved a newspaper delivery service that pays delivery agents to distribute the newspapers to subscribers. The agent had signed several contracts, indicating she was an independent contractor, was allowed to subcontract her deliveries, supplied all her own materials, purchased and collected independent contractor work insurance, and filed her taxes as an independent contractor.

To determine whether a worker is entitled to wage and hour protections, minimum wage or overtime, a three-prong independent contractor test is applied, but whether a worker is entitled to workers' compensation depends on an analysis of twelve factors.

Employer cannot be ordered to reimburse for medical marijuana - Michigan

In Newville v. Michigan Department of Corrections, the workers' compensation magistrate found that a correction officer's injuries were sustained as a result of altercations with inmates, and prescriptions for Oxycodone, Fentanyl, and medical marijuana for back pain were reasonable and necessary. However, pursuant to the workers' compensation law and the Medical Marijuana Act, the magistrate cannot order the employer to reimburse for the cost of medical marijuana, even though the worker's use of marijuana helps reduce his use of prescribed opioids.

Failure to adequately train employee trumps employee's violation of safety practices - Missouri

In Elsworth v. Wayne Cty., an employer sought a reduction in comp benefits because an employee had failed to wear a seat belt or safety hat. An 18-year-old employee had been on the job less than a month when the dump truck he was driving overturned, leaving him in a vegetative state for the rest of his life. In making its decision, the Commission determined that the employer had not adopted any training program and had not monitored employee compliance with any rules.

Supreme Court upholds statutory benefits for Mesothelioma claims - Missouri

A constitutional challenge to a 2014 statutory amendment that allowed workers to collect a lump-sum payment of benefits if they develop occupationally caused mesothelioma was rejected by the Supreme Court in Accident Fund Insurance Company; E.J. Cody Company Inc. v. Robert Casey, Dolores Murphy. In Missouri, employers have the option of accepting liability for occupational diseases under Section 287.200.4 or taking the risk of defending against a civil suit. In this case, the employer accepted liability and insured the risk.

The Supreme Court ruled that the statute providing the enhanced benefits is not unconstitutionally retrospective. As such the widow and the eight adult children were entitled to benefits. Section 287.200 is unlike other workers' compensation provisions in that it does not condition a child's recovery upon dependency status.

Increase in impairment and level of disability necessary for a change in benefits - Nebraska

In Moss v. C&A Industries, a laborer employed by a temporary agency suffered serious injuries when a crane dumped a load of iron on him and he has not worked since. After there were complications from his first knee surgery, he was found to be permanently and totally disabled. Later, the court approved a right knee arthroplasty, noting the altered gait from the left knee surgery caused the injury.

When he sought a modification of benefits, the court found under Nebraska law a worker must show a change in impairment (physical condition) and disability (employability and earning capacity). Since there was no change in disability, the appellate court said the compensation court erred in modifying his award.

Withdrawal of partner does not nullify Workers' Comp coverage - New York

In Matter of Smith v Park, a father and son operated a farm business as a partnership and subsequently, the father withdrew. A minor-aged boy was killed in an accident and his mother argued that there was no insurance in effect at the time. However, the appellate court ruled that a change in partners did not void the workers' compensation insurance policy, nor the carrier's acceptance of liability for the death of a teenage employee.

Injured employee cannot sue employer's alter ego entity - New York

In Buchwald v. 1307 Porterville Road, an Appellate Court ruled that an employer's immunity from civil suit is extended to the employer's corporate alter egos. The employer had formed two single-member-owned LLCs on the same day for the purpose of running a horse farm. One entity owned the property and leased it to the other entity, which employed the injured worker. According to the court, an entity can establish itself as the alter ego of an employer by demonstrating that one of the entities controls the other, or that the two operate as a single integrated entity and, in this case, they integrated or comingled assets, had the same insurance policy, and were jointly operated. Since the real estate owner was the alter ego of the employer, it was also protected by exclusive remedy.

Fatal heart attack compensable in spite of health risk factors - New York

In Matter of Pickerd v. Paragon Envtl. Constr., Inc., a construction worker suffered a heart attack while assisting a coworker with the removal of an underground gasoline tank and died three days later. He was a smoker and had high cholesterol and there was conflicting testimony from physicians as to what caused the heart attack.

In awarding benefits, the appellate court noted the decedent's work need not be the sole agent of death; it was sufficient if it was only a contributing factor.

Smoking break injury not compensable - North Carolina

A city employee, working on a utility crew, smoked his first e-cigarette during a lunch break in a city truck at a gas station and had a coughing fit. He stepped out of the truck, passed out, and injured his right hip, back, and head and could not return to his former position. He was diabetic and had not been taking his meds.

The case went through several appeals and, in each case, the court determined he was not eligible for benefits. His fall was due to underlying medical conditions and his personal decision to smoke. It was neither work-related nor dictated by his employer.

For new employee unexpected weight of box makes lifting injury compensable - North Carolina

In Doran v. The Fresh Market, Inc., et al.,a cheese specialist had worked in his position for nine weeks, and he described his job as routinely involving lifting boxes up to 25 pounds. He injured his shoulder and arm when he lifted a box that had no weight displayed and was heavier (40 lbs) than he thought. While the company argued against benefits, noting that a new worker would "basically have no regular routine," the court observed that new conditions of employment don't become part of a worker's regular course of procedure until he "has gained proficiency performing in the new employment and become accustomed to the conditions it entails."

Coming and going rule nixes foreman's benefits - Pennsylvania

In Kush v. WCAB (Power Contracting Co.), The Commonwealth Court ruled that an electrical foreman was not entitled to workers' compensation benefits for his injuries from a car accident that happened while traveling to a job site. He worked for two employers and managed multiple jobs during the day. Typically, he drove directly from his home to his assigned job site.

While managing nine jobs, he suffered injuries in a car accident driving to a job site where he had worked almost exclusively the week leading up to the accident. Compensation was denied based on the "coming and going rule" and upon appeal, the foreman argued he had no fixed place of employment and his employment contract covered travel time, exceptions recognized under the rule. However, the Commonwealth Court upheld the denial, noting he had a fixed place of employment because he was reporting to the same location each day until the project was complete and he was not paid for travel time.