Legal Corner

FMLA
Employee granted FMLA can be disciplined for not following procedures

In Reed v. Delta Air Lines, a flight attendant suffered from a chronic, painful vein issue and often would seek intermittent FMLA leave, always properly certifying her leave. However, she was denied a recent request because she failed to return her recertification, despite ample time to do so. On another occasion, she failed to follow the employer's call-in procedures requiring employees to report their need for leave at least three hours before a shift, although she did provide the necessary medical certification. The airlines granted the leave but disciplined her.

The company put her on probation and she filed a disability discrimination suit alleging violations of the FMLA and ADA. The court found that an employee can be denied leave when they fail to return a medical certification/recertification. Also, since the employee was disciplined for not following call-in procedures, not because of the FMLA leave, and past history demonstrated she was familiar with the rules, the employer rightly disciplined the employee.

Workers' Compensation
Exclusive remedy is prime defense in COVID-19 litigation - NCCI

A recent report by the National Council on Compensation Insurance (NCCI) analyzed 18 court cases involving employers nationwide that are alleged to have unsafe working conditions and fail to follow federal and state guidance related to COVID-19. In 11 of the cases, the employers are contesting the allegations on the grounds that workers' compensation is the only remedy for a workplace injury unless gross negligence is proven.

While most of the cases are pending, a decision by the U.S. District Court in the Southern District of California last September found that the exclusive remedy barred negligence claims by a detention officer (Brooks v. Corecivic of Tennessee LLC). Recently, in Estate of William Madden at al. v. Southwest Airlines Co., a federal district court judge dismissed negligence charges filed by a Southwest Airlines flight attendant who became ill with the virus after attending a training. Her husband contracted the virus and died. The court noted that Maryland's third-party duty case law puts emphasis on limiting the class of prospective future plaintiffs and that permitting the litigation could lead to a flood of lawsuits.

As more courts open, litigation in which a worker or a surviving family member sues an employer over a COVID-19 infection or death is expected to increase.

PTSD resulting from treating physician's sexual misconduct is compensable - California

In Applied Materials v. WCAB, an employee suffered compensable injuries in 2001 and 2005 related to her neck, arms, and shoulder and a cumulative trauma injury through her last day of work in 2008. Starting in 2013, the physician who had been treating her since 2007 made advances and they had sexual intercourse on five occasions in her home, but she denied his future requests for sex and filed a complaint with the Medical Board. She was diagnosed with major depression, chronic pain, and PTSD and filed a workers' compensation claim for an alleged cumulative trauma injury to her neck, arms, and psyche that extended through her last day of employment after being laid off.

The court of appeals found that the worker's psychiatric disability arose out of her sexual exploitation and was compensable, rejecting the argument that the worker broke the chain of industrial causation when she engaged in a personal relationship with the doctor. It found that the doctor prescribed five or six drugs at the time of their sexual contact, which affected the worker's ability to function. Thus, the medications and treatment provided for the workers' industrial injuries were a contributing cause of the worker's PTSD and disability.

The Court, however, also concluded that the WCAB erred in awarding 100 percent permanent disability and remanded the case for further proceedings on the issue of permanent disability.

Carrier's delay means employee can select a new doctor - Florida

In Lucie Public Schools v. Alexander, a custodian injured her back, her attorney requested a change in the treating physician, and the adjuster assigned her to a new physician, without confirming he would accept her as a patient. After an exchange of medical records and phone calls, the physician said he would order injections or physical therapy only and would not provide any pain medication, but that was unacceptable to the injured worker; therefore, he would not treat her. The case manager then contacted another doctor and arranged an appointment, which was almost two months from the original attorney request, which exceeded the statutory deadline of five days from the date it receives the request. Therefore, the employee can select a physician.

Lunch break fall non-compensability reversed by court - Georgia

In the April 2019 Advisory, the case, Daniel v. Bremen-Bowdon Investment Co., was discussed. An appeals court denied benefits to a worker when she fell on a public street on the way to her car during her lunch break. Last year, the Supreme Court overturned the decision in a similar case, Frett v. State Farm Employee Workers Compensation, and overruled an earlier case, Farr, as having impermissibly conflated the "in the course of" and "arising out of" prerequisites to compensability. Considering the more recent rulings, Daniel's accident was compensable.

Anemia not caused by chemical exposure - Illinois

In Balensiefen v. Illinois Workers Compensation Commission, an employee of a factory that produces chemicals used in the manufacture of rubber and plastics developed iron deficiency anemia. He filed a worker's compensation claim alleging that his exposure to hazardous chemicals over 24 years of employment caused or contributed to his condition. While a treating physician noted that his work exposed him to various chemicals that likely caused or contributed to his condition, an independent medical examiner found no evidence based on toxicology data. He opined that comorbidities were likely the cause.

An arbitrator denied the request for benefits and the Workers Compensation Commission unanimously affirmed that decision, noting he failed to prove that he suffered from an occupational disease or that a causal connection existed between the disease and his employment.

Law firm that accepted kickbacks for referring injured workers to a pharmacy settles with AG - Massachusetts

Bridgewater-based Keches Law Group P.C. admitted that it referred nearly 800 injured workers to Injured Workers Pharmacy LLC (IWP) to fill prescriptions in exchange for about $90,000. IWP paid for the firm to participate in an X1 racing event, a yacht outing, and picked up the $24,000 tab for a holiday lunch. The law firm has agreed to pay $300,000 to settle claims.

Gardening injury exacerbates work-related elbow injury and worker awarded permanent disability - Missouri

In Karen Ritchie v. Silgan Containers Manufacturing Corp. et al, an appeals court ruled that a forklift operator who suffered elbow pain before breaking her wrist while gardening at home is eligible for permanent disability. After breaking her wrist, the pain in her elbow worsened and surgeries did not alleviate the pain. An ALJ found that she suffered an occupational injury that rendered her permanently totally disabled and unable to compete in the open labor market and the Workers' Compensation Commission affirmed the award. The appeals court agreed finding the medical testimony showed a connection between the disability and her work.

Termination for failure to submit fitness for duty documentation upheld - New York

In Dalotto v. New York State Department of Labor an appellate court upheld the termination of a civil servant after she failed to submit medical documentation of her fitness to return to duty at the end of her workers' compensation leave. She had regularly submitted documentation that she was unable to return to work, so the department directed her to submit medical documentation clearing her to return to work and informed her she would be required to submit to a medical examination conducted by a state doctor. She attempted to schedule the appointment herself, refused to submit the documentation, and was fired.

The court noted regulations require that the petitioner is medically fit before requesting restoration to duty and there must be a medical basis substantiating fitness. Given the record, the decision to terminate was not arbitrary and capricious and did not violate due process.

Judge orders insurance provider to pay for medical marijuana - Pennsylvania

A judge of the Pottsville field office ruled that an employer's insurance provider must reimburse a home health aide for approximately $4,000 worth of medical marijuana and cover the cost going forward for her treatments, which amount to about $400 per month. The home health aide was driving from one client's home to another's when a car crossed the centerline and hit her auto head-on. She had multiple fractures and continued to experience nerve pain after her recovery and found that a medical marijuana-based oil enabled her to work two jobs.

Death benefits awarded to widow of injured worker who planned suicide - Pennsylvania

In SEPTA v. Workers' Comp. Appeal Bd. (Hansell), an appellate court awarded death benefits to the surviving spouse (and a dependent child) of an injured employee who committed suicide that was carefully planned. In so doing, the court noted the existence of an unbroken chain of causation from the injury to the suicide. The worker had suffered a lower-back sprain and was unable to do light-duty work. He became depressed and obsessed about the injury and its ramifications on the family's livelihood. Before the injury he was treated at a psychological center for eight years for general anxiety.

A WCJ found the medical testimony of the doctor representing the decedent, who testified the decedent had been diagnosed with "major depressive disorder, single episode moderate and panic disorder," to be more credible than that of the employer. The Board affirmed.

Upon appeal, the court noted the case must meet the chain-of-causation test, which provides that suicide is compensable if:

1. There was initially a work-related injury;
2. The "injury directly caused the employee to become dominated by a disturbance of the mind of such severity as to override normal rational judgment;" and
3. The "disturbance resulted in the employee's suicide."

If this standard was met, the death is considered not intentionally self-inflicted and is, therefore, compensable. Reviewing the record, the appellate court found no error in the WCJ's Decision granting the petition.

Parking lot injury must be determined on course and scope of employment - Tennessee

In Rowe v. Mitsubishi Motors North America, Inc., a database administrator left the building in which she was working to retrieve a headset from her automobile for use in a work-related call. Her car was parked in an outdoor parking area adjacent to the building, and it was raining at the time of the incident. When she arrived at her car, she realized she did not have her car keys and turned back toward the building in which she worked, at which time she tripped and fell. She experienced pain in her left shoulder and arm and requested workers' compensation benefits. The employer denied the claim arguing the accident did not arise primarily out of or within the course and scope of her employment and that the fall was idiopathic and filed a motion for summary judgment.

In reviewing the case, the appeals board revisited a significant decision by the Supreme Court relating to parking lot injuries, Lollar vs. Walmart Stores, and determined it remains good law. The court concluded that whether the employer owns or maintains the lot isn't determinative. The board concluded, "[I]n accordance with the Supreme Court's test as originally set forth in Lollar, the trial court must further determine whether employee remained in the course and scope of her employment when she left the building to walk to her car."

Supreme Court addresses establishing date of workers' mental injury - Tennessee

In the October 2020 Advisory, we discussed the Nickerson v. Knox County case where a forensics technician for the sheriff's department investigated cases involving catastrophic and sexual injuries to children for 13 years (1998 - 2011) before moving to another position, which did not involve traumatic incidents. The Reform Act conferred the Court of Workers' Compensation Claims with jurisdiction for cases with dates of injury on and after July 1, 2014, but a judge argued this was a cumulative injury case and therefore the Court had jurisdiction. The Workers' Compensation Appeals Board disagreed and ruled that the date of injury in mental injury claims for jurisdictional purposes is the date of the identifiable work-related event or events resulting in a sudden or unusual stimulus.

Upon appeal, the Supreme Court of Tennessee's Special Workers' Compensation Appeals Panel adopted this decision. It noted, "...we find no basis in the plain language of the statute or the case law discussing mental injuries to conclude a mental injury claim can be treated as a gradual or cumulative injury..."

Separate injuries even if causally related do not ensure PTD - Virginia

In Merck & Co. v. Vincent, the Supreme Court overturned an award of permanent total disability benefits to a sales rep who suffered two injuries that were causally related but occurred separately. He suffered a compensable injury to his neck, left arm, and hand, then after beginning treatment, he fell down the stairs at home and injured his left knee. The fall was compensable because medication prescribed for the first injury caused dizziness.

Later, he filed a change-in-condition claim seeking permanent total disability benefits, since the statute provides for PTD when a worker suffers two disabling injuries "in the same accident." He was awarded PTD by lower courts and the case made its way to the Supreme Court, which overturned the ruling. It noted the compensable consequence doctrine does not allow separate injuries to be treated as if they occurred in the same accident. Rather, the doctrine allows a new injury that is causally connected to an earlier, compensable injury to be "treated as if it occurred in the course of and arising out of the employee's employment."