Legal Corner

ADA
Terminating employee who exhausted medical leave due to workplace injury leads to $115,000 settlement

Aspire Health Partners, a non-profit behavioral health care organization headquartered in Orlando, Florida, will pay $115,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). An employee worked for the company for over 20 years and took a medical leave as a result of a workplace injury. She was terminated when she exhausted the leave.

Shortly after she was terminated she was cleared to work without restrictions and applied for another position with the company but was notified that she was ineligible for rehire due to medical records in her prior workers' compensation file. The EEOC sued, arguing the alleged conduct violates the ADA, and the company settled. In addition to the $115,000 in damages, the two-and-a-half-year consent decree settling the suit requires Aspire to adopt and distribute an updated policy against disability discrimination, conduct training on disability discrimination for its human resources officials, and post a notice.

Workers' Compensation
Res Judicata does not bar change in medical treatment - Georgia

The doctrine of Res Judicata, which means a matter that has been adjudicated by a competent court may not be pursued further by the same parties, applies in workers' comp cases. In Trejo-Valdez v. Associated Agents, a worker injured his back and had surgery, but still experienced pain. With conflicting medical evidence presented, an ALJ denied a request for a spinal cord stimulator.

Upon appeal, the court noted the earlier ruling does not prevent a re-examination of the same questions between the same parties if there was a change in material facts or events. The appellate court stressed that the earlier ALJ order had denied the request for a spinal cord stimulator at that time and medical treatment in workers' compensation claims was generally fluid and could evolve over time. Since then there had been a change in the authorized treating physician, who recommended the stimulator.

Case to watch: Violation of biometric privacy alleged in legal workplace testing for COVID-19 - Illinois

In Michael Jerinic v. Amazon.Com Inc. and Amazon Com LLC., Amazon is charged with violating Illinois' Biometric Information Privacy Act (BIPA) by requiring workers at its Mundelein warehouse to have their facial geometry scanned by a facial recognition camera and their temperature taken before entering the facility without informing workers and obtaining their consent. The lawsuit, which seeks class-action status, was transferred to the U.S. District Court in Chicago.

While the BIPA is the most restrictive law on biometric privacy, other states have passed similar laws and employers should be cautious about inadvertently collecting biometric information in violation of state privacy laws. When employers are doing COVID-19 screening, they should be sure they are not collecting or storing biometric information and are following the proper procedures regarding consent forms.

Widower can pursue negligence claim against robot installation company - Michigan

In William Holbrook, personal representative of the estate of Wanda Holbrook, v. Prodomax Automation Ltd., et al., a federal court denied summary judgment in a negligence case involving FNG Flex-N-Gate LLC , a company that installs and maintains manufacturing floor robots. A woman was employed as a journeyman maintenance technician at Ventra Ionia LLC in Ionia and was fatally crushed by a robot while maintaining equipment.

Her husband settled a workers' comp claim and FBG argued the exclusive remedy barred it from the suit because FNG and Ventra are a single corporate entity. However, the court found the position untenable because discovery is ongoing.

Appeals court upholds denial of benefits for psych injury and stroke - Missouri

In Shipley v. Treasurer, a maintenance engineer at a state prison power plant who had a history of conflict with subordinates, peers, superiors, and vendors, refused to turn off a boiler scheduled for repairs, got into shouting matches with his supervisor and subordinates, and left in his truck. The following day he met with a peer-action review team and was taken to a hospital for psychiatric care.

He resigned shortly thereafter and filed a workers' comp claim for a mental health injury. Six months later he suffered a stroke and filed another claim. An administrative law judge (ALJ) denied the claims, finding the worker did not prove that the events he described objectively rose to the level of "extraordinary and unusual stress."

The Court agreed, noting his arguments did not provide information that compared his level of stress to that faced by other employees in the same profession and, thus, did not prove that the mental injury arose out of and in the course of his employment.

Future medical costs for back injury denied based on report from employer's expert - Nebraska

In Melina Arroyo v. Caring for People Services, Inc., a supervisor injured her back while caring for people in their homes. The Workers' Compensation Court (WCC) awarded her benefits based on its finding of a 5% loss of earning capacity and ordered Caring for People to pay past medical and mileage expenses, but not future medical expenses. She appealed.

An avid runner before the injury, she completed a10K race a little over a year after the injury. There were conflicting medical opinions regarding the need for future medical care and the WCC relied on the employer's expert. The supervisor did not object to the admission of the report and did not request a ruling on its admissibility from the WCC, thus she waived any objection to the admission of the report and could not challenge the admissibility of it on appeal.

Finding that the decision came down to conflicting medical testimony, the Appeals Court wrote in its ruling, "Where the record presents nothing more than conflicting medical testimony, this court will not substitute its judgment for that of the compensation court."

Important ruling relating to COVID-19 safety concerns - New York

In Derrick Palmer, et al., v. Amazon.com Inc., the U.S. District Court for the Eastern District of New York dismissed a putative class complaint by employees of Amazon.com Inc. and Amazon.com Services LLC's (together, Amazon) Staten Island center, known as JFK8. In so doing, it applied the doctrine of primary jurisdiction in determining that only OSHA had the "expertise and discretion" to address the Staten Island fulfillment workers' safety concerns.The court also noted that even without deferring to OSHA's primary jurisdiction, the nuisance claim would fail because the employees failed to show that their alleged injury - an increased risk of contracting the illness - is different in "kind" from the injuries suffered by the general public.

The workers in the lawsuit claimed that JFK8 failed to comply with guidance from the CDC and argued that Amazon's productivity requirements prevent employees from engaging in basic hygiene, sanitation, and social distancing.

Positive COVID-19 test is sufficient prima facie medical evidence (PFME) for a COVID-19 WC claim - New York

In Employer: New York Black Car Operators, the New York Workers' Compensation Board found that a positive COVID-19 test is sufficient prima facie medical evidence (PFME) for a COVID-19 workers' comp (WC) claim. In this case, a Uber driver alleged he contracted COVID-19 as a result of his work activities and provided a positive COVID-19 test result to show PFME of injury. The New York Black Car Fund, which provides WC insurance to "for-hire" rideshare drivers of certain companies, denied the claim and asserted that the positive test did not establish PFME because it did not show that the claimant contracted COVID-19 while working.

The Board reasoned that a positive COVID-19 test constitutes PFME because it documents the COVID-19 illness and there is no requirement that PFME, in itself, shows a causal link between the injury and employment. However, it did acknowledge that later development of the case may lead to insufficient evidence to support the claim. (source: NCCI)

Lapse in bills for more than two years triggers statute of limitations - North Carolina

In Dunbar v. Acme Southern Inc., the North Carolina Appeals Court unanimously affirmed an Industrial Commission decision that the insurer had no obligation to pay for medical treatment nearly four years after its final bill. The injured worker had settled a workers' comp claim for indemnity compensation, but not medical expenses. Several years later, his medical providers began billing Medicare rather than the insurer.

A few years after the change in payments, the injured worker sought authorization from the insurer for pain management treatment, which was denied. The insurer stated he was no longer entitled to medical compensation because he had not submitted a request for more than two years. He appealed. In upholding the denial, the court noted, a statute of limitations that bars additional compensation for an injured employee if two years pass after the last payment of medical or indemnity benefits is clear and unambiguous.

No Utilization Review may mean employer is on hook for compound cream payment - Pennsylvania

In Omni Pharmacy Services, LLC v. Bureau of Workers' Compensation Fee Review Hearing Office (American Interstate Insurance Company), a worker broke his ankle and the insurer accepted responsibility for the claim. A doctor prescribed a compound cream, which the pharmacy provided on three occasions, billing over $6,000. The insurer denied payment. The pharmacy then filed fee review applications, which were found in their favor for $4,827 plus 10% interest.

The insurer appealed arguing the bills were denied on an issue of causation. A hearing officer concluded "that there is a dispute... pertaining to the causal relationship of the prescribed compound cream and the accepted work injury" and vacated the fee award. The pharmacy appealed.

The Commonwealth Court noted that a carrier can dispute the reasonableness or necessity of a treatment by utilization review, but the insurer had not done so. Therefore, the hearing office erred in dismissing the pharmacy's claim for payment and the court remanded the case for a decision on the merits of the pharmacy's claim for payment.

Infections arising from work-related dog-bite are compensable - Virginia

In Aqua Leisure Pools v. Greene, an appellate court affirmed a decision by the state's Workers' Compensation Commission that awarded workers' compensation benefits to an employee who developed methicillin-resistant staphylococcus aureus (MRSA) on two separate occasions. It noted an injured employee is entitled to recovery for all medical consequences and sequelae that flow from the primary injury, as long as there is a direct, causal link. The worker had suffered dog bites at a customer's home and the treating physician testified that the infections were casually related to the original dog bites.