Legal Corner

ADA
$3.3 million jury award in disability discrimination and retaliation lawsuit

A former legislative analyst for the Missouri House of Representatives was fired after he requested workplace accommodations based on his anxiety and attention-deficit hyperactivity disorder. At times he had trouble concentrating and thinking but claimed with accommodations he could do the essential functions of his job. He requested a quieter workplace, permission to work from home some days, and asked that a third party specializing in accommodations be involved to discuss the situation.

While the state argued he was insubordinate, refused to do his job, and did not cooperate with his team, the analyst argued the state did not evaluate his need for accommodations or engage in the interactive process required under the ADA. He filed a lawsuit against the Missouri House of Representatives and Daniel Adam Crumbliss, who was chief clerk at the time. The jury found the state failed to accommodate the analyst's disabilities, unlawfully fired him based on his disabilities, and retaliated against him for requesting accommodations.

Takeaway: Juries have become increasingly intolerant when they believe the employer did not do the right thing and social inflation continues to have a major impact on settlements.

Workers Compensation
Appeals court declines to review case involving injury incurred in violation of company policy - California

In an unpublished case, Zenith Insurance Co. v. WCAB (Abraham Alex), an appeals court declined a petition to review a case that awarded an unarmed security guard benefits for an injury he suffered while chasing an unruly patron out of a bus terminal in contradiction of his employer's instructions. As he escorted the patron outside, the man hit him and ran. While chasing the man, the guard fell and suffered a subdural hematoma, intracranial hemorrhage, and a concussion.

Company policy did not allow guards to chase, restrain or detain anyone, however, it did not disciple the guard for violating the policy and acknowledged it was not good to have a disorderly patron in the terminal. The insurance company denied benefits, but a WCJ awarded benefits, noting the company derived benefits from his actions.

The appeals court acknowledged that if a worker steps outside the scope of employment he or she may not be eligible for benefits. "But courts distinguish between doing an act entirely outside the scope of employment and doing an act within the scope in a forbidden manner."

Supreme Court clarifies requirements for settlement contract - Florida

In Suarez Trucking FL Corp. v. Souders, a divided Supreme Court reversed an appeals court decision and ruled that a settlement contract with an injured worker was formed when the company filed an unequivocal written acceptance in a timely manner. The injured employee filed a third-party tort action against Suarez Trucking, contending that its negligence caused or contributed to the injuries. With counsel, he offered a settlement that Suarez Trucking should pay $500,000 within ten days from the date of acceptance.

The company accepted and within ten days issued a check, which included as a payee the carrier holding a workers' compensation lien. The injured worker's counsel refused the check and the company filed a motion with the trial court to enforce the settlement agreement, which was denied. The case went to trial and the jury awarded the employee $1.96 million. Upon appeal, the Second District Court of Appeal affirmed the trial court's order denying Suarez Trucking's motion to enforce the settlement agreement.

The case made its way to the state Supreme Court, which noted the settlement offer makes a clear distinction between acceptance and performance rather than equating acceptance with performance. The offer clearly contemplated a two-step process in which acceptance is followed by performance (issuance of check). The fact that the third party modified the terms of the proposed settlement in executing the performance, and the injured worker did not accept them, was irrelevant.

Control at jobsite supersedes contract in determining employee status - Illinois

In Routine Maintenance v. Illinois Worker's Compensation Comm'n, a worker was hired to clean gutters and signed a contract that he was an independent contractor. While on a ladder he slipped and fell, seriously injuring himself. The Commission and trial court ruled that he was an employee and entitled to workers comp benefits. While several factors go into determining employee vs independent contractor status, the court pointed out that the single most important factor is the employer's right to control the worker's actions.

Calling the independent contractor classification 'merely a sham label,' the court found the company, through its office manager, controlled the schedule, how work was done, transportation and equipment, and provided supervision.

Supervisor not liable for worker's heat-related death - Missouri

In Channel v. Walker, a worker who was assigned one of two trucks without air conditioning in a fleet of 14 suffered heat stroke and died on a day when the outside temperature was 106 degrees and the inside truck temperature was too high for an emergency personnel's thermometer. Allegedly the worker had reported becoming ill on multiple occasions to his supervisor and others and believed his supervisor was trying to get him fired.

The family filed a wrongful death suit against the supervisor and company, arguing that the employee was placed at risk for injury not normally associated with his job and that he died as a direct and proximate result of their intentional and negligent acts. An ALJ, the Labor and Industrial Relations Commission, and the Court of Appeals found that the death was an accident arising out of his employment and the family's sole resource were the death benefits under the workers comp statute. It noted the company clearly understood the danger of heat-related illnesses because it implemented a heat stress protocol plan and that the death was caused by exposure to extreme heat and dehydration from his work conditions, not by the supervisor's actions. The supervisor's actions were within the scope of his job description and the actions alleged by the family all fall within the employer's nondelegable duties.

Municipality must bargain with union over termination procedures - New York

In Matter of City of Long Beach v. New York State Public Employment Relations Board, the state's highest court ruled that while municipalities have the right to terminate employees, they must bargain with unions over the process for terminating the employment of workers who are injured in the line of duty and are unable to return a year later under a separate collective bargaining law. The case involved a firefighter who was absent from work for more than a year due to his injuries. While the Civil Service Law Section 71 provides that an injured worker shall be entitled to a one-year leave of absence, Section 204 requires public employers to collectively bargain over public employees' "terms and conditions of employment."

Failure to disclose self-publications violates fraud statute - New York

In Koratzanis v. U.S. Concrete Inc., a truck driver received comp benefits for a work-related injury. After the claim was established, the employer raised the issue of whether he had violated Workers' Compensation Law Section 114-a by authoring and self-publishing several books on Amazon. A WCLJ imposed the mandatory penalty of no compensable lost time from the date of the first post-accident publication to the date of the hearing but declined to impose a discretionary penalty and the Workers' Compensation Appeal Board and the Appellate Division's 3rd Department affirmed. The court noted that the truck driver made no effort to disguise his publishing endeavors, he was readily forthcoming about his activities when questioned, and he made little money, therefore,a discretionary penalty was not warranted.

Amazon must face COVID-19 safety lawsuit - New York

Amazon must face a claim that it failed to protect Staten Island warehouse workers and their families from COVID-19, the 2nd U.S. Circuit Court of Appeals ruled while dismissing other aspects of a 2020 lawsuit. This decision reverses a federal judge's ruling that only OSHA had the power to review complaints about Amazon's workplace safety practices.

NYC vaccine mandate "arbitrary and capricious" - New York

In George Garvey, et. al. v. The City of New York, a judge ordered that the workers fired under the city's vaccine mandate be reinstated and receive back pay. The judge also ruled against Mayor Eric Adams's executive order allowing exemptions for private employees such as performers and athletes - who were required to get vaccinated in a separate 2021 order by the health commissioner.

"This is clearly an arbitrary and capricious action because we are dealing with identical unvaccinated people being treated differently by the same administrative agency."

COVID-19 retroactive presumption constitutional - Virginia

In Martin v. Fluvanna County, a law enforcement officer sought the retroactive presumption of Va. Code § 65.2-402.1(B) that a COVID-19 diagnosis was causally related to employment. The county argued the statute was unconstitutional, as it violated its substantive due process rights. While the Deputy Commissioner agreed, the Workers' Compensation Commission reversed finding § 65.2-402.1(B) is constitutional and the legislature intended to apply it retroactively. An appeal is expected.

Timeliness of PTD application clarified - West Virginia

In Murray American Energy Inc. v. Harshey, the state Supreme Court held that a worker timely applied for permanent total disability (PTD) even though it was more than five years from when he received his permanent partial disability (PPD) award. A claims administrator denied the application, noting the worker was granted an initial PPD award in March 2014 and did not file his application for PTD until June 2019, which was beyond the statutory five-year filing period.

The court noted that the code does not allow injured workers to file more than one claim for permanent disability at a time, whether that claim is for PTD or PPD. The PPD award was appealed and the five-year limitation began when his PPD award became final.

Insurance company does not have to defend or indemnify fireworks distributor for injury of two volunteers - Wisconsin

In T.H.E. Insurance Co. v. Trey D. Olson, as special administrator of the estate of Timothy L. Olson, et al., two volunteers were injured at Fourth of July fireworks displays in the towns of Rib Lake and Land O' Lakes and sued the fireworks distributor. The distributor's insurer argued it had a "Shooters Endorsement" exclusion in its general and excess liability policies and, therefore, had no duty to defend or indemnify the company. The endorsement said the policy would not provide coverage for injuries or deaths "to shooters or their assistant hired to perform fireworks displays or any other persons assisting or aiding in the display of fireworks."

The district court found, and an appeals panel affirmed that "any other persons" included volunteers.