Legal Corner

ADA
Accommodation requirement for gender dysphoria

In Kesha T. Williams v. Stacey A. Kincaid et al, the 4th U.S. Circuit Court of Appeals in Virginia overturned a lower court's ruling and created an accommodation requirement for gender dysphoria, which is defined as the "clinically significant distress" felt by some people who experience "an incongruence between their gender identity and their assigned sex." Although the case was not employment-related, most experts expect it to be applied to the workplace.

FMLA
Denial of leave not necessary to prove interference with FMLA

The Seventh Circuit Court of Appeals (Wisconsin, Illinois, and Indiana) recently held that the Family and Medical Leave Act (FMLA) does not require actual denial of FMLA leave to find interference with FMLA rights. In Ziccarelli v. Dart, the court held that an employer could violate the FMLA by discouraging an employee from exercising their rights.

A corrections officer for a Sheriff's office had a long history of taking FMLA and asked the FMLA manager about taking leave so he could enter a PTSD treatment program. Allegedly he was told that he should not take any more leave and he could be disciplined if he did. He retired shortly later and sued his employer for FMLA interference.

In its decision, the court noted three ways an employer could discourage an employee from taking FMLA leave: create an overly burdensome approval process, not providing information to make employees aware of their rights, and orally discouraging FMLA use before the employee requests leave. While ultimately a jury will decide whether there was interference, it demonstrates the importance of properly training managers on handling FMLA requests and documenting all FMLA interactions with employees.

Workers Compensation
Injured worker can't be compelled to reveal immigration status - California

In Manuel v. Superior Court (BrightView Landscape Services Inc), a worker allegedly injured his back and returned to work on restrictions. According to the worker, he completed a full shift and then was terminated by his supervisor. On the other hand, the employer says the worker voluntarily terminated his employment by failing to return after he was identified by United States Immigration and Customs Enforcement as ineligible to work in the country. The worker filed suit, claiming wrongful termination.

While a trial court judge granted a motion to allow discovery regarding the worker's immigration status, the appeals court reversed and remanded. It noted a person's immigration status is irrelevant to the issue of liability for violation of state labor laws, except where the proponent of the discovery "has shown by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law."

Denial of attendant care services overturned - Florida

In Girardin v. AN Fort Myers Imports LLC, a doctor prescribed a home evaluation because he did not know anything about the injured worker's home situation and could not provide any specifics about how much and what type of attendant care she would need. The insurer arranged three home visit assessments but did not share the evaluations with the physician.

A judge of compensation claims (JCC) found that the physician had not provided a written prescription that was sufficiently specific to warrant approval of attendant care. The appeals court reversed and remanded, agreeing the law requires a written prescription with certain, specific information but the carrier cannot "attempt to hide behind a wall of willful ignorance" by failing to provide the doctor with the results so that he could give written specifics.

Failure to follow health risk treatment recommendations doesn't thwart claim - Florida

In Tiburcio v. Hillsborough County Sheriff's Office, a JCC denied benefits for a deputy's heart disease noting that it was well documented that the deputy had not followed his physician's prescribed course of treatment for several health conditions related to heart and lung conditions. However, the records did not include a diagnosis of heart disease in general or coronary artery disease.

An appellate court overturned the denial of benefits, finding the statutory presumption that his ailment was work-related must prevail because reverse presumption applies only when there is a departure from a prescribed course of treatment for the specific disease or diseases (heart disease) for which the injured worker is seeking compensability.

High court punts on opioid-dependent worker's eligibility for benefits - Michigan

The state Supreme Court concluded the record was "too incomplete to facilitate meaningful appellate review," in considering whether a nurse's loss of wage-earning capacity was related to her work injury or to her opioid dependency, which developed during ongoing treatment for her pain. Four justices wrote separate opinions raising questions as to whether the nurse had an affirmative duty to seek reasonable treatment for her opioid addiction and failure to do so broke the chain of causation, the failure of the statutes to address this issue that affects many other workers, and whether the treatments were reasonable and necessary. However, the court concluded "... we make no factual findings of our own. Rather, we vacate the decisions of the Court of Appeals and the MCAC and remand to the administrative process to fill in these gap."

Mine operator found to fragrantly violate Mine Act - Minnesota

A federal appeals court ruled unanimously that Northshore Mining Co of Lake County, flagrantly violated the federal Mine Safety and Health Act when it directed miners to work on an elevated walkway known to be unsafe for more than a year. The court also held two managers personally liable for the violation and assessed each with a $4,000 fine based on the managers' lack of effort to encourage repairs despite knowing about the dangerous walkway. The court ordered the Federal Mine Safety and Health Review Commission to assess a civil penalty for the violation considering its flagrant designation, which can be up to $291,234 for flagrant violations.

Settlement for arm injury precludes later claim for wrist - Missouri

In Lamy v. Stahl Specialty Co., a worker filed and ultimately settled a claim for a repetitive injury to his left arm. Before the claim was settled, he was made aware by his physician that he had carpal tunnel syndrome in the left wrist that might require future attention. The employee signed a compromise settlement that stated it "settle(d) all issues between the parties."

After the settlement, the worker filed a second workers' compensation claim for a repetitive trauma injury to his left wrist. Accepting the physician's opinion that the prevailing factor for left carpal tunnel syndrome was the same as the prevailing factor for his left shoulder injury, an ALJ found and an appeals court agreed that the settlement of the prior claim had closed out any claims arising from the same basis.

Fall from bucket not compensable - New York

In Morales v. 50 N. First Partners LLC, a worker's job was to install stacked washer and dryer units in apartments, which he was able to do without a ladder. When he was working at an apartment complex that was under construction, he was standing on an inverted bucket to reach the power cable for a unit that he had just pushed into a closet when the bucket slipped out from under him and he was injured.

A judge found and the appellate court agreed that the worker did not need protection from the effects of gravity to do his work and, therefore, he was the sole proximate cause of his injuries.

Summary judgment overturned on questions of cause of accident - New York

In Thomas v. North County Family Health Center Inc, a worker fell from an A-frame ladder that tipped over while he was carrying an approximately 90-pound piece of drywall that he attempted to hand to a co-worker who was operating a scissor lift. A state Supreme Court Appellate Division judge granted summary judgment to the employer, noting the worker failed to use available, safe, and appropriate equipment to lift the drywall. However, the Appellate Division's 4th Department overturned, noting there was a triable issue whether the worker's actions were the sole cause of the accident as there was evidence a coworker refused to reposition the scissor lift to allow him to safely lift the drywall into place.

WC act covers minor modifications to home, but not home purchase - Pennsylvania

In Ralph Martin Constr. v. Castaneda-Escobar, a worker fell off a roof and was rendered a paraplegic. At the time of the injury, he was living in his brother's house, and renovations to modify the home were estimated at $119,722. The design firm suggested it would be more cost- effective to relocate to a single-floor residence. The renovations were never made to his brother's home and the injured worker purchased a one-level home for $230,000. The new home required $5,905 for wheelchair access, which the employer paid. However, the worker sought coverage for the new home or at least the estimated cost of renovating his brother's home.

A WCJ found the employer was not liable for the cost of the home or the estimated cost to renovate the brother's home. The employer, however, was liable for the closing costs since the purchase relieved it of the obligation to modify the home and for the worker's legal costs. While the Workers' Compensation Appeal Board disagreed and ordered the employer to pay the $119,722 cost of renovation, with a credit for the $5,905 it had already paid for the bathroom renovation, the Commonwealth Court found the purchase of a new home extends the phrase "orthopedic appliance" beyond a reasonable interpretation.

According to the court, the Workers' Compensation Act obligates an employer to pay for an injured employee's medicine, hospital treatment, services, supplies, and orthopedic appliances and prostheses. Case law has included the cost of home modifications, but only for a one-time, minor modification and there is no precedent to pay for modifications that were never undertaken.

Retirement doesn't always preclude benefits - Pennsylvania

In Hi-Tech Flooring v. Workers' Compensation Comm'n, a tile setter took a union pension and social security disability benefits and voluntarily retired. In Pennsylvania, voluntary retirement usually ends an employee's rights to benefits and the company sought to terminate the workers' compensation benefits. In considering the issue, the court noted that sometimes circumstances compel retirement, and the totality of the situation needs to be examined.

The tile setter's doctor reported that the right knee contusion was ongoing and prevented the worker from engaging in his pre-injury work, which the worker had done for over 30 years. The court added that the employee's SSD benefits were based on the work-related injury and his lack of transferrable skills. Therefore, the worker did not voluntarily retire but was forced to take a pension and disability benefits because of a disability.

UR determinations can't be used to establish causation - Pennsylvania

In Skay v. Borjeson & Maizel LLC (WCAB), the Commonwealth Court ruled that utilization review determinations can't be used to establish the causal relationship between a treatment and a work injury. Arguing that some medications were not causally related to the worker's injury, the company refused to pay for them, although they were found to be reasonable and necessary in two utilization reviews. The court noted UR determinations do not decide the causal relationship between treatments and the work injury and since that was the only evidence presented by the worker, the company did not have to pay for the medications nor be penalized for non-payment.