Legal Corner

ADA
Illinois dog kennel to pay $60,000 to settle disability suit

According to the EEOC's lawsuit, an employee worked without incident at a suburban Chicago dog kennel, Rover's Place, until one of the owners learned of his past drug use. The EEOC alleged that the worker was subject to a hostile work environment and forced to quit his job because of his opioid addiction disability and that the employer inquired into his medical history. In EEOC v. Family Futures Group, Inc. d/b/a Rover's Place, the settlement agreement stipulates Rover's Place will pay $60,000 and furnish other relief.

FMLA
Can worker sue for retaliation if on extended leave?

In Mims v. The Boeing Company, the company gave a worker who suffered from anxiety and depression two years of medical leave after he exhausted his 12 weeks allowed under the FMLA. When he returned to work, he was terminated and sued the company for FMLA retaliation. A federal District Court in Illinois ruled that when an employee cannot return to work because the medical issues continue beyond the 12-week period, the FMLA no longer applies.

The court indicated that even if he could prove his allegation that his employer began creating a pretext to fire him while he was on FMLA leave, the fact that he remained unable to work removes him from the benefits of the FMLA.

Workers Compensation
Employers not liable for pre-hire drug test expenses - California

In Johnson v. WinCo Foods, LLC, the US Ninth Circuit Court of Appeals ruled that employers do not have to pay applicants for time or expenses related to taking a pre-employment drug test when the employer made hiring contingent on passing the test. The company paid for the test, but not the costs of travel or time. Since the individuals were not employees when they underwent drug testing, they were not owed wages or expenses.

No death benefits for mother whose 16-year-old son died first day on job - Florida

In Sandifort v. Akers Custom Homes, a 16-year-old worker was killed in a tragic drowning accident on the first day of his part-time job. He had a permanent learning disability that allowed the mother to receive a monthly SSI check, which primarily sustained the family and this was the first job he ever held. The employer accepted compensability of the workplace death and paid medical and funeral costs, but denied death benefits to the mother, arguing the SSI check did not meet the dependency requirements of the statute. The court found that dependency on the decedent's wage-earning capacity is required and because her son had never established "the ability to support himself much less anyone else," the family was not dependent upon him.

Lien on third-party recovery denied because employee not fully compensated - Georgia

In Donegal Mutual Insurance Group v. Jarrett, a worker suffered serious injuries and received over $130,000 in workers comp benefits. The employee brought an action for negligence against a third-party tortfeasor and the insurance company asserted its rights to pursue repayment of the workers' compensation benefits should the suit be successful. The worker entered into a settlement agreement with the tortfeasor for a lump sum of $520,000. The insurance company sought to enforce the lien but was denied because the worker had not been made whole.

Upon appeal, the court agreed, noting an insurance carrier can recover on its lien only after the employee has been fully and completely compensated. Further, a subrogation lien is available only against recovery for economic losses and with a lump sum settlement, it was unable to determine what portion of the settlement was allocated to economic losses.

Offset of UIM benefits limited - Indiana

In Kearschner v. American Family Mutual Insurance Co, a worker was injured in a work-related auto accident and received a workers' compensation settlement of $62,084 and filed suit against the other driver and received $50,000. The worker's insurance company filed a motion for summary judgment, arguing that it had no duty to provide UIM coverage since the worker had received more than his $100,000 underinsured policy limit and a trial court agreed.

Upon appeal, the court found that the state's underinsured motorist statute (UIM) obligates carriers to provide a minimum level of $50,000 UIM. Hence the worker was entitled to $50,000.

School district must face retaliation claim - Missouri

In Poke v. Independence School District, a custodian was injured and filed a workers compensation claim. An authorized provider asked for a urine sample, which tested positive for marijuana. The district denied his claim and fired him for the positive test. In turn, he filed suit arguing he was fired in retaliation for exercising his rights under state law and the district claimed it was protected by sovereign immunity. While a trial court judge agreed, the Court of Appeals reversed the ruling, and the state Supreme Court affirmed saying state law prohibits all employers from engaging in retaliatory conduct.

Worker can receive medical marijuana treatment - New York

In Barretta v. Pal Environmental Safety, a fire proofer had been receiving medical care for seven years for an occupational disease involving his back, hips, legs, and right foot. Although he received various treatments, he continued to experience pain. When his doctor sought authorization to treat him with medical marijuana, it was denied by the employer and insurance carrier on the ground that such treatment was not approved by the FDA. Noting that the worker had tried various treatments with limited success and medical marijuana was prescribed to reduce chronic pain and dependence on opioids, a workers' compensation law judge granted authorization for marijuana treatment, the Workers' Compensation Board affirmed, as did the Appellate Court.

Availability of PPE not enough to dismiss claim - New York

In Sheley v. Kingsfort Builders Inc., a worker sustained an eye injury while using a nail gun to perform framing work. The contractor moved for summary judgment dismissing the claim since there was no dispute that the safety glasses were present on the work site the day of the accident. The motion was denied because the testimony raised questions about whether it ensured that the equipment was used.

"Last act" determines jurisdiction - North Carolina

In Duke v. Xylem Inc., a truck driver who was a resident of North Carolina was offered a job by a company with operations and headquarters in Virginia. A year later, the worker tore his rotator cuff and herniated a spinal disk while on the job in Virginia, and initially filed a comp claim in Virginia, but he failed to respond to discovery requests and the claim was dismissed. He then filed a claim in North Carolina, arguing that he had accepted the offer of employment over the phone, while he was in his home in North Carolina.

The Industrial Commission dismissed the claim and the appeals court agreed, noting the Industrial Commission has jurisdiction only if the contract was made in the state; if the employer's principal place of business is in the state; or if the employee's principal place of employment is in North Carolina. The company contended that the offer was contingent upon completing onboarding employment paperwork and passing a physical exam, a driving test, and a drug test at Xylem's operation in Virginia. The key to determining the "last act" is "whether there is a possibility that the prospective employee could fail to meet the criteria, thus becoming ineligible for employment."

Workers' Comp exclusion not relevant under tort law - Pennsylvania

In P.I. & I. Motor Express, Inc. v. RLI Insurance Co., a truck driver working at a plant in Duquesne was seriously injured when a large metal pipe fell on him, forcing doctors to amputate both his legs. The employer did not have workers comp coverage and a state agency determined the worker could sue under tort law. The suit was settled for $2.4 million after RLI, Motor Express' commercial general liability insurer, agreed to defend the company under a reservation of rights.

After RLI refused to reimburse it for the settlement, Motor Express filed suit against the insurer in U.S. District Court in Youngstown, Ohio, seeking indemnification for the settlement up to the CGL insurance policy's $2 million limit. On appeal, the insurer argued that a workers compensation exclusion applied in part, but the court disagreed. The settlement obligation was not incurred under Pennsylvania's workers compensation law, but the "commonwealth's judge-made tort law."

Prison guard granted benefits for PTSD - Pennsylvania

In Dion Jones vs Curran-Fromhold Correctional Facility, a prison guard filed a claim for post-traumatic stress disorder after witnessing the fatal shooting of an inmate who had just been released from the prison. In granting the petition, the judge said seeing a person shot and killed should not be considered a normal part of a job, even in a line of work that is often violent. Further, the prison presented almost no evidence on what constituted normal levels of violence in a prison environment.

Reasonableness of fee clarified - Tennessee

In Henderson v. Pee Dee Country Enterprises Inc., a worker who lived in Mississippi worked for a company based in Tennessee and was killed in a work-related auto accident. The company paid death benefits under Mississippi law. The widow engaged an attorney to collect death benefits in Tennessee and agreed to pay 20% of the difference between the maximum amount of death benefits payable under Mississippi law ($199,714.50) and the maximum amount of benefits payable under Tennessee law ($432,000). The employer objected to paying over $47,000 in legal fees and the Court of Workers' Compensation Claim (CWCC) ordered an explanation of the fees.

The CWCC approved a settlement for the difference between the maximum amount of death benefits payable under Mississippi law and the maximum amount of death benefits payable under Tennessee law, but only awarded 7.5 percent for legal fees. The appeals board vacated and the Supreme Court Special Workers' Compensation Appeals Panel noted that the 20 percent fee was consistent with the statute that provides for an award of attorney fees, "subject to the approval of the workers' compensation judge," which does not exceed 20% of the recovery or award to be paid by the party employing the attorney.

Employer liability for COVID-related death of spouse of worker not barred by exclusive remedy - Wisconsin

In Ruiz v. Conagra Brands, Inc., a ConAgra employee who contracted COVID-19 on the job and transmitted the virus to his wife sued the company for her death, alleging the company failed to institute proper safety measures, which "resulted in over 100 of its workers at the plant testing positive in April 2020." While the court found that the employee's personal claims were barred by the exclusive remedy provision of the Workers' Compensation Act; the claims brought by the estate of his wife were a different matter and will be decided later. The court found that the estate did not meet the required statutory conditions for liability under workers' compensation and rejected the employer's argument that the estate's claims were barred by exclusive remedy because they flow from the employee's workplace exposure to the virus.