Legal Corner

ADA
Employer can require reassessment of restrictions

In Booth v. Nissan North America Inc., the 6th US Circuit Court of Appeals found that Nissan did not violate the ADA when it required an employee on its assembly line to have a doctor review his restrictions to determine if they could be adjusted to allow him to perform more tasks. The company had accommodated the job restrictions for some time and then restructured the assembly line to include more tasks. When the employee claimed this would violate his job restrictions, the company asked him to get a new assessment and the doctor cleared him to perform the tasks. An employee under a work restriction does not have an automatic right to a preferred position or to prevent having the restriction re-evaluated from time to time, based on the legitimate business needs of the employer.

FMLA
Employer can ask employee to explain misconduct while on FMLA leave

While employers can't make an employee on FMLA leave do work or participate in on-call activities, the 3rd Circuit Court held that they can insist upon a prompt response to allegations of misconduct, including serious breaches of policy as in Reagan v. Centre LifeLink Emergency Medical Services Inc. Prior to her leave, the employee had started her own business that competed with LifeLink. When the company found out, they required her to sign a non-compete agreement to continue employment. While the employee was on FMLA leave for a non-work-related injury, her supervisor discovered several breaches of the non-compete agreement.

The general counsel sent a letter to the employee requesting explanations within 10 days for the apparent violations. The employee responded by email one day after the due date and did not address the concerns, but said she was seeking legal counsel. The company immediately fired her and she sued in federal court, claiming that LifeLink interfered with her rights under the FMLA. LifeLink filed a motion for summary judgment seeking dismissal of the claim, which the district court granted.

Workers' Compensation

Injured worker receives $630,000 in damages on disability and retaliation claim - California

In an unpublished decision, Abarca v. Citizens of Humanity LLC, the 2nd DCA upheld an award of $630,000 in damages to an injured worker on his disability discrimination and retaliation claim. When he experienced pain, he was referred to HR, but was not advised to fill out a claim form. When a doctor imposed restrictions, he was fired. He sued asserting retaliation, disability discrimination, wrongful termination, and other violations of the Fair Employment and Housing Act. A second doctor diagnosed him with degenerative disk disease, insomnia, anxiety, and depression and opined he was temporarily totally disabled.

Question of Social Security eligibility nixes PTD for injured worker - Florida

In SBCR Inc. v. Dos, an appellate court overturned an award of PTD for an injured worker when he turned 62. A JCC had awarded the benefits believing the employee did not meet the requirements for Social Security disability to have at least 40 quarters of coverage by age 62. The worker stated his injury prevented him from working enough, but provided no documentation of his denial. Therefore, the court found there was not enough evidence to support the JCC's award.

Widow denied death benefits for husband's auto accident - Massachusetts

In Yang's Case, an appellate court upheld earlier rulings that a business owner's death in an auto accident was not work related. The case demonstrates the complexity of intertwined businesses as the deceased owned a business in Massachusetts, which had comp coverage and one in New Hampshire that did not. Despite being a separate company in a separate state with no connection other than ownership, the company's finances were entwined.

When the NH company failed, he closed it. He was traveling to NH to meet with a prospective buyer of the property when the accident occurred. The court agreed with earlier rulings that he was traveling to serve his personal interests.

State supreme court overturns benefits for Ex-NFL player with head trauma - Minnesota

In Noga v. Minnesota Vikings Football Club, a former defensive linesman for the Minnesota Vikings, was denied compensation for dementia arising from head trauma because the statute of limitations had passed. The ruling reversed an award of total permanent disability benefits. He stopped playing football in 1994 and was awarded comp for orthopedic injuries in 2004. At the time, the doctor identified neurological issues, including blackouts and headaches, which could be attributed to injuries incurred while playing for the Vikings.

He became legally blind and was diagnosed with dementia in 2011 and filed a comp claim for the head injuries in 2015. The six-year statute of limitations had passed since both Noga and the Vikings knew of the issue in 2004, but Noga argued the team waived the statute of limitations because they acknowledged he had a neurological health issue when they treated him while playing. The supreme court disagreed.

Court of appeals revives teacher's case for benefits for fall injuries - Missouri

In Maral Annayeva v SAB of the TSD of the City of St. Louis, an ALJ and the Labor and Industrial Relations Commission denied benefits for a teacher who fell after entering the building. The denial was based on the employee's credibility and medical opinions based on subjective descriptions, as well as the questioning of her attorney. Although she initially described the floor as "normal," upon questioning by her attorney she mentioned dirt, ice, dust and moisture.

The court of appeals reversed and remanded the commission's decision, finding there was no conflicting evidence or testimony to dispute the employee's statements about the condition of the floor. The court ruled the employee's injury did arise out of her employment because she was required to walk the hall each day to clock in, thus, she was exposed to the inherent condition of the employer's workplace.

Lack of English skills not sufficient reason to excuse compliance with the notice statute - New York

In Matter of Nukicic v. McLane Northeast, an appellate court found that the Workers' Compensation Board (WCB) acted within its statutory powers when it found that a worker failed to provide the employer with the required notice of injury. The truck driver, who was not proficient in English, told two supervisors that he had pain in his knee and that a physician placed him "off work" for a short period. However, he never connected the pain to his work.

Heart attack after dealing with difficult customers did not arise out of an in course of employment - New York

In Issayou v Issayuou Inc, the owner of a hair salon sustained a heart attack minutes after dealing with difficult customers. The WCB found the employer's medical expert, who concluded the condition was advanced, triple vessel, obstructive coronary artery disease, most credible. The appellate court agreed and also noted that the level of stress faced by the salon owner was no greater than that experienced by other similar workers.

Paralysis from car accident not compensable - North Carolina

In Bache v. Tic-Gulf Coast, the Court of Appeals affirmed an Industrial Commission's finding that a traveling worker was not in the course and scope of his employment when he was in a car accident that took place after he had dinner and a beer. The employee, who lived in Florida, worked for a company that had been contracted to perform construction at a power plant in Wayne County. He received an hourly rate and a per diem rate to cover duplicate living expenses.

While driving home from a restaurant after work, he was in a single car accident that left him paralyzed from the waist down. He had a blood alcohol level of 0.10. He filed for comp benefits, arguing he was a traveling employee and that state law provides that "employees whose work requires travel away from the employer's premises are within the course of their employment continuously during such travel."

However, an appellate court upheld earlier rulings denying benefits. He was living locally and his job was conditional on his moving to North Carolina for the two-year project. It was unlike a business trip and the travel was entirely personal.

Rare comp and tort claim net settlement of over $9 million - North Carolina

A temp employee who was assigned to work for a manufacturer as a janitor suffered severe burns over most of his body in an explosion. Initially, the temp agency was identified as the employer, but when an issue of negligence was raised, the plant argued that the worker was a joint employee of the factory and of the temp agency and it was protected by the exclusive remedy of workers' comp.

However, the contract between the plant and the temp agency clearly stated that the temp agency was to be considered the employer. Therefore, the tort claim against the plant could proceed. Mediation and reports from expert witnesses showed the factory had violated its own safety policies and was vulnerable to a negligence claim and heavy damages. The tort claim was settled for $8 million and the workers' comp carrier agreed to waive the subrogation lien and pay a settlement of $1.25 million.

The terms of the settlement require that the names of the factory, its insurer and the worker be kept confidential.

Bank teller's carpal tunnel not compensable - Pennsylvania

In Elsa Olivo v. Workers' Compensation Appeal Board et. al., the Commonwealth Court affirmed the ruling of an WCJ and the WCAB that a bank teller failed to prove that her work caused her carpal tunnel. She had worked as a teller for eight years and spent about 25% of the time counting money and sought total disability after being diagnosed with carpal tunnel syndrome in both wrists.

Two examining doctors opined that she was able to return to work with no restrictions and an IME found that she exaggerated her symptoms. One of the doctors noted "for something to be deemed work-related carpal tunnel it would have to be something that involves a high force, (high) torque vibration situation...bank teller not being one of them."

Violation of restraint policy does not nix benefits - Tennessee

While a residential treatment facility argued an employee violated its policies, the Supreme Court's Special Workers' Compensation Appeals Board ruled he was entitled to benefits for an injury he sustained while trying to restrain a patient because he did not willfully violate the policy. Further, it was noted the facility failed to show they engaged in a serious enforcement of the policy.

In Tennessee Clinical School v. Johns, a relatively new employee was asked to stay beyond his shift and get a group of teenage boys up for breakfast. One boy resisted, and when a scuffle occurred, the employee attempted to restrain the boy and seriously injured his shoulder. The court found the restraint policy was not a "hard and fast rule" and permitted restraining actions if a resident posed a threat.

Psychological injuries from assault compensable - Tennessee

In Natchez Trace Youth Academy v. Tidwell, the Supreme Court affirmed a trial court's disability finding and monetary award to an employee, who was injured by a youth living at the residential treatment facility where he worked. His facial injuries required plastic surgery. Following a week's time off, he returned to light duty with the stipulation he would not have to interact with the residents.

However, when staff did not arrive to replace him he was required to wake up the children. He began to experience anxiety and depression. Although he was released for full duty work without restrictions, it was unclear if this was just for his physical injuries. He did not contact the Academy and they considered him to have abandoned his position.

A trial court ruled he suffered an injury and developed depression and PTSD as a result of the incident and required a psychiatric evaluation before returning to work. The court awarded him nearly $100,000 in disability as well as additional unpaid temporary total disability benefits.

Two-cause rule does not apply to cases involving dissimilar disabilities - Virginia

In Virginia,when a work-related disability combines with a nonwork-related disability to prevent the employee from working, the entire total disability is the responsibility of the employer under the "two-cause" rule. In Carrington v. Aquatic Co., a long-term employee suffered from preexisting kidney disease that did not affect his ability to work. In a work-related accident, he injured his arm and received comp benefits. He was cleared to return to light duty, which he did.

Shortly thereafter, his kidney condition deteriorated such that he was unable to work and filed for TD benefits, arguing the two-cause rule should apply. He died during the appeals process which led to the state Supreme Court. It upheld lower rulings that the sole cause of his total disability, was his kidney failure that was unrelated to his employment. The key question was which injury kept him from working at all - thus rendering him totally disabled. Further, the compensable arm injury did not contribute to his kidney deterioration.