Legal Corner

ADA
'Transitory and minor' defense cannot be established for COVID-19 related case

In a case of first impression, a Pennsylvania federal court in Matias v. Terrapin House, Inc., denied an employer's motion to dismiss an employee's suit that alleged she was terminated in violation of the ADA and the Families First Coronavirus Response Act (FFCRA) after testing positive for COVID-19. The court concluded that the employee plausibly alleged a "regarded as" disability claim because she informed her employer that she had COVID-19 and was suffering a loss of smell and taste and was fired the same day. It also found the employer could not establish that COVID-19 was transitory and minor.

Recent guidance has indicated that long-COVID may be considered a disability, and while the employee did not allege she had long-COVID, loss of taste and smell is one symptom. The court also found that even if COVID-19 was "transitory," it was not "minor," given the number of cases and deaths caused by the virus.

Workers Compensation
Modified duty not required for undocumented immigrant - California

In Flores v Westside Accurate Courier Services, a driver for a courier service was injured in an auto accident and received temporary disability. When she returned to work, her employer planned to promote her, but discovered she was undocumented. She was given the choice of resigning or being fired and choose to resign. Medical reports indicated she had work restrictions and could only do modified work, so she argued she should receive temporary disability benefits.

While the Labor Code stipulates benefits are available to all individuals regardless of immigration status, a Supreme Court decision in 2014 found that the statute is "not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer's discovery of an employee's ineligibility to work..." An Appeals Board panel decision ruled that the company cannot legally employ her and cannot be liable for benefits incurred after it learned she could not be employed.

WCAB reverses favorable ruling in off-duty basketball tournament injury - California

In Spence v City of Los Angeles, a police officer sustained an injury to her right foot while playing in a basketball tournament with other women from the Los Angeles Police Department. She acknowledged that her participation in the tournament was voluntary. While a WCJ found that the injury arose out of employment during the course of employment, the WCAB disagreed.

For off-duty recreational, social, or athletic activity to be compensable there must be reasonable expectancy from or an expressly or impliedly requirement by the employer. Evaluation of whether an injury is barred requires a two-prong test: (1) whether the employee subjectively believes his or her participation in an activity is expected by the employer, and (2) whether that belief is objectively reasonable. The first prong was not met and compensation was denied.

Independent cable installer doesn't qualify as 'employee in construction industry' - Florida

In Cabrera v. Kablelink Communications LLC, a cable installer fell from a ladder while installing a residential cable line and filed a workers' comp claim. Although he had signed an agreement that expressly stated he was an independent contractor and not an employee, he argued he was an employee because independent contractors are "employees" if they are engaged "in the construction industry" under Florida statutes.

The construction industry is defined as for-profit activities involving any substantial improvement in the use of any structure. In this case, the Court of Appeals upheld a JCC's decision denying compensation, noting the installation work wasn't enough to show a substantial improvement.

Auto injury not limited to workers' comp - Massachusetts

In Berry v. Commerce Insurance Co., the Supreme Judicial Court upheld a lower court decision that an auto insurer is not immune from liability for the negligent driving of a police officer who injured another officer. During a paid worktime training session, a training officer, driving his personal vehicle, struck and seriously injured a fellow officer, who was sitting at a picnic table undergoing training. He acknowledged that he was driving too fast.

While the auto insurer denied the claim because the officer was a public employee acting "within the scope of his . . . employment" and, therefore, immune from tort liability, the court disagreed. To determine if an incident falls within the scope of employment, three factors are considered: whether the conduct is of the kind the employee is hired to perform; whether it occurs within authorized time and space limits; and whether it is at least in part motivated to serve the employer. The court noted "his unsafe driving was not motivated, even in part, by a purpose to serve his employer," nor "furthered the interests of the town."

Medical marijuana does not have to be reimbursed - Minnesota

In two separate rulings that reversed lower courts, the Supreme Court said workers' compensation payers do not have to reimburse for medical marijuana because the drug remains illegal under federal law. In Susan K. Musta v. Mendota Heights Dental Center and Daniel Bierbach v. Digger's Polaris, the court found that that the Workers' Compensation Court of Appeal lacks jurisdiction to decide that federal law preempts state law and lacks jurisdiction to decide whether the Controlled Substances Act preempts state work comp laws requiring employers to provide medical treatment to injured workers when the treatment is cannabis.

Worker with preexisting conditions received PTD after foot injury - Missouri

In Wilson v. Treasurer, the Court of Appeals overturned a denial of permanent total disability (PTD) benefits to a worker with a history of cardiac and knee issues after he suffered an injury to his foot. After surgery for the compensable foot injury, the worker's foot did not heal properly. A doctor opined that the right foot injury combined with the preexisting knee and cardiac conditions rendered the employee permanently and totally disabled.

He settled with his employer and applied for PTD benefits from the Second Injury Fund. A judge ruled and the Commission affirmed that evidence presented did not prove his PTD was the result of his primary injury in combination with a single preexisting disability that met the 50-week threshold requirement. The Court of Appeals said the commission erroneously interpreted and applied the law, noting the law did not require a worker to prove his PTD resulted solely from one qualifying preexisting disability in combination with the disability resulting from a subsequent work injury.

Failure to disclose auto accident leads to forfeiture of comp benefits - New York

In Lopez v. Clean Air Quality Services Inc., an HVAC technician suffered an injury to his right hand while preparing equipment for repair and received workers' comp for hand injuries and complex regional pain syndrome, along with exacerbation of anxiety and depression. Months later, his wife filled out a questionnaire, which the technician signed, indicating he had back pain and the employer later learned he had been involved in a rollover auto accident about a month after his workplace injury.

The Workers' Compensation Board set the mandatory penalty of disqualification from indemnity benefits for five years, finding the nondisclosure sufficiently egregious, and permanently disqualified him from receiving future income benefits. The Appeals Court agreed, noting the failure to disclose the motor vehicle accident was "directly attributable" to the receipt of the award.

Failure to get insurer's consent to third party settlement leads to forfeiture of comp benefits - New York

In DeGennaro v. H. Sand & Co., Inc. a workers' compensation insurer was aware of an injured worker's third-party action against the driver of a motor vehicle, and even received and accepted more than $63,000 in reimbursements. However, since the worker did not get the insurer's written consent to the third-party settlement or obtain a nunc pro tunc order from the trial court approving the settlement, the worker was barred from receiving further workers' compensation benefits related to his claim.