Legal Corner

FMLA
Lack of clear instructions results in reinstatement of FMLA charges

In Edward Render v. FCA USA, LLC, an assembly line worker for FCA US LLC, the U.S. business of Fiat Chrysler Automobiles, was conditionally reinstated after suspension because of attendance infractions and could be fired if he had two unexcused "tardies" or one unexcused absence during a one-year probation period. About six months after his reinstatement, he applied for intermittent FMLA leave because of major recurrent depression and an anxiety disorder.

However, the instructions from FCA's third-party leave administrator were unclear and conflicting about how to call in to report he was using his intermittent FMLA leave days. When he was terminated for violating his conditional reinstatement letter, he filed suit charging interference and retaliation under the FMLA. While the district court dismissed the case, the decision was overturned by a three-judge appeals court panel. It found that the letter on how to report he was taking leave "was so confusing" that even an FCA human resources department employee could not decipher it. An employee "cannot be faulted for failing to comply with company policy if the policy was unclear or the employee lacked notice of the policy," the ruling said.

Workers Compensation
Court awards double damages to MAO - federal

In a major Medicare secondary payer (MSP) development, the U.S. Circuit Court of Appeals for the Second Circuit joined the Third and Eleventh Circuits, along with a growing number of U.S. District Courts, finding that the MSP's private cause of action (PCA) statute applies to Medicare Advantage Plans (MAPs), giving these entities a powerful tool for recovery efforts. In Aetna Life Insurance Company v. Big Y Foods, Inc. an employee was injured at the Big Y Foods supermarket, filed suit against Big Y, and reached a settlement. Aetna, the Medicare Advantage Organization (MAO), had paid for some of the injury-related medical care and issued notice that it would be asserting a lien against any recovery or settlement before the settlement agreement was finalized.

Big Y released the full settlement to the employee and Aetna filed suit against Big Y, the injured employee, and her attorneys. The district court found that Big Y was a primary plan and that Aetna could sue primary plans under the MSP's PCA statute. However, it could not sue the employee or her attorneys, as they are not primary payers. On appeal, the court agreed, noting that Big Y, as a self-insured entity, was a primary plan as that term is defined under the MSP, and in this case, double damages were awarded.

Employer takeaway: This decision underscores the importance of making sure that Medicare recovery claims are addressed and resolved as part of the claim settlement.

Carriers not required to notify employer of classification changes - California

In Cover Right Roofing, Inc. v. State Compensation Ins. Fund, a roofing company had a workers' compensation insurance policy with the State Compensation Fund, which automatically renewed. At renewal, the State Fund assumed that the company would be assigned the same classification, although the dual wage thresholds had changed. After an audit, the company received a bill for $56,766. When a debt service sued to collect payment, Cover Right filed a cross-complaint against State Fund, asserting negligence for failure of the fund to notify them that the base rate had increased. Had it known, it could have adjusted its pay scale so it would have the same classification or sought a new policy.

The trial court granted summary judgment to the Fund and the appeals court agreed. While the court sympathized with the company, it noted that the statute "does not require written notice where the defined threshold for the governing classification is changed," but only when the premium rate for the insured is increased by more than 25 percent.

Date of injury for PTSD claim clarified - Florida

In Wyatt v. Polk County Board of County Commissioners, the First District Court of Appeal overturned a denial of benefits for a paramedic suffering from post-traumatic stress disorder. The court noted that the trial judge erred by using the date of last exposure to a qualifying trauma as the basis for compensability. Because the statute allows for PTSD to be treated as an occupational disease, the qualifying date is the day the employee suffered a loss. In this case, it was the date that the PTSD led the worker to quit her job and suffer wage loss, which was in November 2018. Since this was after the amended statute became effective, she qualified for compensation.

Condominium association protected by exclusive remedy - Florida

In Bal Harbour Tower Condominium Association, Inc. v. Bellorin, the Third District Court of Appeal, overturned a trial court and found that an employee of a valet service could not pursue a negligence lawsuit based on premises liability against a condominium association for injuries he sustained. While carrying luggage to a unit, the valet was injured when a plastic panel fell from the ceiling of the service elevator.

Under the Declaration of Condominium, the association had a contractual obligation to provide valet services to the condominium owners. Although the trial court found that the Declaration was not a contract, the appeals court disagreed. Because the association had a contractual obligation to provide valet services and subcontracted that obligation to the valet's employer, the association was the statutory employer of the valet. Therefore, it was entitled to immunity.

Workers' Compensation is exclusive remedy for shooting deaths - Indiana

In Johal v. FedEx Corp., a federal judge dismissed a lawsuit filed by relatives of five of the eight people who were fatally shot at a FedEx warehouse by a former employee. The judge found that the federal court did not have jurisdiction over the case because the deaths occurred in the course and scope of employment. Therefore, the lawsuit should be dismissed because it falls under the state's Worker's Compensation Act, which is the exclusive remedy available to the employees' estates.

Exclusive remedy bars wrongful termination claim - Nebraska

In Dutcher v. Nebraska Department of Correctional Services, the state Supreme Court ruled that workers 'compensation exclusive remedy barred an employee's wrongful termination claim brought under the Nebraska Fair Employment Practice Act (NFEPA) because the claim arose from a compensable work-related injury. The corrections worker who was injured during a self-defense training course was terminated because she was unable to find a position that would accommodate her permanent work restrictions.

The court noted the statute provides that when a worker files for work comp benefits it constitutes a release of all claims arising from such injury against the employer. It found that there was sufficient nexus between the employee's compensable workplace injury and her disability claim under the NFEPA. Thus, the employee's disability claim was barred by exclusive remedy.

High court finds heirs not entitled to unaccrued part of nonscheduled award - New York

In Matter of Green v. Dutchess County BOCES, the state's high court overturned the Appellate Division ruling and found that the unaccrued portion of a nonschedule award does not pass to a beneficiary after the death of an injured employee from causes unrelated to the original injury. While the statute allows unpaid portions of a schedule loss of use (SLU) award to pass to a surviving child under the age of 18 years, it does not do so for a nonschedule award. A schedule award is designed to "compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself," the court said. "A nonschedule award, in contrast, seeks to reimburse a claimant for earnings lost due to injury."

Facts must determine independent contractor or employee status - Pennsylvania

In IDI Logistics Inc. v. Clayton, a truck driver signed various documents when he was hired, including an Independent Contractor Agreement, although did not read them. He used the company trucks, received assignments from a dispatcher, but could refuse them, and could work for other companies but he never did. He paid for his meals and lodging, was paid by the mile, determined his routes but had deadlines, and received a 1099 IRS form. The case made its way to the Commonwealth Court, which acknowledged it was a close call. Nevertheless, it found that the driver was an employee because the employer exercised significant control through its ownership of the trucks and payment to its drivers by the mile.

Use of Uber for medical appointments approved - Virginia

In Medical Management International v. Jeffry, an employee suffered a compensable injury and after surgery was advised by her doctor not to drive. While she often was able to have family or friends drive her to medical appointments, occasionally she had to use Uber. She did not inform the company of her need for transportation and sought compensation for her Uber expenses, totaling about $880. A deputy commissioner denied the request because she had not informed the company and ordered reimbursement under the standard per-mile rate, totaling about $140.

Upon appeal, the court found that nothing in the Workers' Compensation Act requires a worker to provide advance notice of travel expenses or obtain preauthorization for them. An employer is liable for all medical attention that is reasonable and necessary to treat a compensable injury. However, the court also cautioned that transportation costs must be reasonable and necessary. Since the company did not specify any transportation method and the Uber costs were not excessive, she was entitled to reimbursement.

Drug-using employee immune from civil liability to permanently injured colleague - West Virginia

In Goodman v. Auton, a city garbage truck driver backed up and struck something, knocking a co-worker off the truck, and then accidentally ran him over. The coworker suffered serious and permanent injuries and had to have a leg amputated. He received workers' comp benefits and sued his two co-workers. Immediately after the accident, the driver tested positive for controlled substances and opiates.

The case made its way to the state's Supreme Court. The immunity that workers' comp provides employers, extends to workers when they are acting in furtherance of the employer's business and do not inflict an injury with deliberate intention. While the injured worker argued that the driver was acting outside his scope of employment because he was on drugs and the other coworker did not report the fall to the driver immediately, the court said that was not the operative question. The question to examine was whether they were acting in furtherance of the employer's business. Although the driver was under the influence of drugs, he was performing his work duties at the time of the accident and there was no evidence that the other worker was not performing his duties.