Legal Corner

ADA and FMLA
Charges reinstated against Walmart for offering an unfeasible alternative position

In Stefany Hazelett v. Wal-Mart Stores Inc., the 9th U.S. Circuit Court of Appeals in San Francisco reinstated FMLA and ADA claims made by a worker who injured her foot at work and was unable to drive. She completed a form to choose an alternative duty assignment that included an option for refusing the assignment, but provided if she did so, her benefits could be suspended or denied because of noncompliance.

The ruling notes that the temporary assignment would have required her "to report to work in the wee hours of the morning when no public transportation, save a taxi, was available." It also noted confusing information regarding leave and worker's comp claims from a third-party administrator and Walmart, whether Walmart provided notice of any alleged deficiencies from her medical certification, and allowed her to cure the deficiency, failure to discuss possible accommodations, and ambiguous policies.

Workers' Compensation
Insurer does not have to reimburse medical marijuana costs for chronic pain - Massachusetts

In Re Daniel Wright's Case, an injured cable installer was denied reimbursement of $24,268 in medical cannabis expenses for chronic pain relief. The reviewing board of the state Department of Industrial Relations found the federal government's stance on marijuana, that it is an illegal, controlled substance, barred insurers from paying the cost. Upon appeal, the Supreme Judicial Court agreed with the denial, but concluded that the reimbursement was barred by the language in the state's marijuana law -"nothing in this law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana."

High court finds state has jurisdiction for interstate trucker's claim - Massachusetts

In Re Mark Mendes Case, a Massachusetts resident who was hired by a national freight transportation company based in Pennsylvania injured his back and was diagnosed with a bulging disk and could no longer work as a truck driver. He had medical treatment in Massachusetts and filed for workers' comp there. After the initial finding that Massachusetts lacked jurisdiction because it was neither the place of injury nor the place of hire, the case went through a number of appeals and was heard by the Supreme Judicial Court.

The court concluded that since the state was neither the place of hire nor of injury, the state would have jurisdiction only if 'something happened' to transfer the relationship from the place of hire. The court noted there needed to be a more "flexible approach" to jurisdiction, reflecting employment-related contact with the state, including number of miles driven in MA, number of employment days worked in MA, where he parked his truck, and where he received medical treatment. Therefore the Court decided that Massachusetts has jurisdiction over the workers' comp claim.

Lawyer can't use exclusive remedy to overturn harassment award - Massachusetts

In appealing an award of $190,000 to a former legal assistant for intentional infliction of emotional distress and sexual harassment, a lawyer argued in part that the suit was barred by the exclusive remedy of workers' comp. Citing 30 years of case law, the appeals court "recognized an exception to the exclusivity provision, holding that it is not applicable when an employee brings 'an action against a fellow employee who commits an intentional tort which was in no way within the scope of employment furthering the interests of the employer.'" (Spagnuolo v. Holzberg)

Exclusive remedy bars negligence suit over workplace attack - Missouri

In Sebacher v. Midland Paper Co., a warehouse employee of Midland Paper Company attacked a truck driver of one of the companies that Midland contracted with to do deliveries. The truck driver filed suit against the company, arguing it was negligent in supervising and training the employee. Midland argued that it was immune from the lawsuit because workers' compensation law dictated that the driver was a statutory employer. The appeals court agreed, noting the statue extends the definition of an employer to any person who hired independent contractors to have work done under contract on his premises, in the operation of his usual business.

Hairdresser's claim for mesothelioma can proceed - Missouri

In Hayden v. Cut-Zaven Ltd., the Court of Appeals revived a deceased hairdresser's claim for benefits for his mesothelioma, which was taken over by his widow. The employee worked for 47 years as a hairdresser and argued some hairdryers contained asbestos, which led to his mesothelioma. There is evidence that some hairdryers made before 1979 contained asbestos.

The Workers' Compensation Commission denied the claim, relying on an expert's medical causation opinion based on the lack of studies linking mesothelioma to hair dryers.

According to the Appeals Court, the Commission applied too strict a causation standard because there is no statutory requirement that an expert opinion be based on epidemiological studies nor medical certainty. The Court concluded that the claimant's employment as a hairdresser was the prevailing factor in causing his mesothelioma and reversed and remanded the award to the Commission.

Court overturns denial of benefits for work-at-home injury - New York

In Matter of Capraro v. Matrix Absence Management, an appeals court reversed the Workers' Compensation Board's (WCB) denial of a claim from a claims' examiner who was injured during his lunch break while carrying boxes of yet-to-be-assembled office furniture that were delivered to his home for work use. The court's decision, which has important ramifications for other working-from-home injury claims, found the WCB had applied a rigid standard unsupported by precedent that "injuries are only compensable if occurring during regular work hours and while the employee is actively engaged in work duties."

The Appeals Court instructed the WCB to determine whether the employee "when moving the boxes, was engaged in a 'purely personal' activity that was not 'reasonable and sufficiently work-related under the circumstances."

Denial of benefits for psyche injuries related to harassment overturned - New York

An appellate court overturned a decision by the WCB that denied benefits to a computer technician for anxiety and depression that he said arose from stress from harassment that he endured from his supervisor over eight years and ultimately suffered a mental breakdown. While a WCJ found that the technician had work-related major depressive disorder, the WCB found that he was not subjected to stress greater than that which other similarly situated workers experience in the normal work environment.

However, the court noted this decision was at least partially predicated on the belief that the technician had been offered a transfer under a different supervisor before his breakdown, but the transfer offer was made 90 days after the breakdown. Therefore, the case needed to be remanded.

Abandonment of labor market before physician's determination nixes benefits for worker with compensable injury - New York

In Matter of Castro v. Baybrent Constr. Corp., a worker who was struck by falling scaffolding at a worksite was temporarily determined to be totally disabled by her medical expert. However, she had withdrawn from the workforce before the opinion of the physician. The WCB and the appellate court found that the worker's wage loss was not caused by the injury, but by her decision to withdraw from the working economy.

High court rules on criteria for determining if worker suffered injury by accident - Virginia

In Alexandria City Public Schools v. Handel, a teacher slipped, fell, injured her ankle, knee, hip, shoulder, and back. Later she sought additional treatment for shoulder pain and an orthopedist determined she had a neurological condition and referred her to physical therapy. When a workers' compensation commissioner found that she had suffered a compensable "injury by accident," the school system appealed, arguing there was no evidence of a structural or mechanical change to the shoulder.

Lower courts affirmed the decision, noting that the employee need not demonstrate a sudden mechanical or structural change to each part of the body in which the worker was experiencing pain for the injury to be compensable. The Supreme Court disagreed, noting that both an accident and injury must exist to be compensable. The "sudden mechanical or structural change" establishes that an injury arose both from an "accident," and not a gradual onset and an injury. Therefore, it concluded a worker cannot suffer a compensable injury to her shoulder unless she has a structural or mechanical change in the particular body part.