Legal Corner

ADA
Workers' Compensation exclusive remedy does not apply to discrimination case

In Collins vs Metropolitan Area Transit Authority, an employee claimed he was hurt after being forced to work an overnight shift, despite seeking accommodations for a sleep disorder. He received comp benefits for his injury, then sued under the ADA when the transit authority denied accommodations for his sleep disorder.

The transit authority argued that exclusive remedy under Virginia's workers compensation law requires injured workers to obtain relief through the state's Workers' Compensation Commission and, therefore, the case should be dismissed. A federal appeals court denied the motion to dismiss because this is not a tort suit, which would have been barred by exclusive remedy, but rather a federal anti-discrimination case.

Workers' Compensation
Two rulings related to Proposition 22 and AB5 - California

On March 13, in Hector Castellanos v. State of California, the 1st District Court of Appeals ruled that the way Proposition 22, which exempted ride-sharing drivers from a law that would have classified them as employees, defined amendments limiting the ability of lawmakers to enact legislation modifying its provisions violates separation of power principles. However, the unconstitutional provisions can be severed from the rest of the initiative, leaving other provisions from Prop. 22 enforceable.

A few days later, the San Francisco-based 9th U.S. Circuit Court of Appeals revived a lawsuit by Uber Technologies Inc. and subsidiary Postmates Inc. challenging the constitutionality of AB5, which makes it more difficult for them to classify workers as independent contractors. A three-judge panel noted that many jobs and businesses were exempted from AB5 in a "piecemeal fashion." For example, Uber is subject to the law while pet-sitting service Wag, which has been called "Uber for dogs," is not. The panel sent the case back to U.S. District Judge Dolly Gee in Los Angeles, who had dismissed the companies' claims in 2021, and instructed her to reconsider their request for a preliminary injunction.

Both decisions are expected to be appealed.

Firefighter with preexisting conditions granted disability award for stroke - Illinois

In City of East Peoria v. Melton, a firefighter with over 20 years of service applied for an occupational disease disability pension, alleging a "work-related stroke brought on by exposure as a firefighter" that precluded him from performing his job. Three doctors examined him and found 17 comorbidities, some, but not all, were attributed to firefighting. The disability pension was approved by the Workers Compensation Board, affirmed by a trial court, and affirmed by an appeals court.

Teacher's fall down the stairs compensable - Illinois

In Chicago Bd. of Educ. v. Illinois Workers' Compensation, No. 1-22-0341WC, a teacher fell down a flight of stairs that she regularly used during her workday. On the day of the fall, snow, and ice had been tracked inside and the stairs, which had no metal or treading material, were wet, and she fell down 22 stairs, losing consciousness. While the hospital reported she had fainted, she said she was not light-headed before the fall and the slippery conditions of the stairs caused the fall.

An arbitrator ruled she failed to prove the injuries arose out of and in the course of her employment and denied her benefits, but the Workers' Compensation Commission disagreed and the school district appealed. Two appeal courts agreed with the Commission, noting a decision of the Commission "will not be disturbed on review unless it is against the manifest weight of the evidence," which occurs only if an opposite conclusion is "clearly apparent," and the Commission's decision was not against the manifest weight of the evidence.

Acceptance of comp benefits does not automatically bar a tort suit - Michigan

In Wittenberg v. Bulldog Onsite Solutions, LLC, a rigger who considered himself an independent contractor suffered a work-related injury and received over $22,000 in benefits and then brought a negligence suit against the company. A trial judge found his acceptance of the comp benefits made him an employee subject to the exclusive remedy. The judge also used the "economic reality" test to determine he was an employee.

The Court of Appeals noted the Worker's Disability and Compensation Act (WDCA) defines "employee" and this statutory definition, not the economic realities test, must be used to determine whether a person is an employee. The definition is a person "in the service of another, under any contract of hire, express or implied," and "[e]very person performing service in the course of the trade, business, profession or occupation of an employer at the time of the injury, if the person in relation to this service does not maintain a separate business, does not hold himself or herself out to and render service to the public, and is not an employer subject to this act."

The court remanded the case to the trial judge to determine if the rigger met the second part of the definition. It noted the fact that the insurer paid and he accepted workers compensation benefits does not automatically render him an employee or bar a tort suit.

Supreme Court decision clarifies extent of PTSD claims - Minnesota

In Chrz v. Minnesota Counties Intergovernmental Trust, the Supreme Court ruled that a deputy sheriff's entitlement to benefits for his post-traumatic stress disorder (PTSD) ended once his psychologist found he no longer met the criteria for the diagnosis. After witnessing several traumatic events at work, he was diagnosed with PTSD by a licensed psychologist in 2019. In December 2020 an independent medical examiner found he did not meet the criteria for PTSD under the statute and in March 2021 his treating doctor found his condition had improved and changed his diagnosis from PTSD to "other specified trauma and stress-related disorder" caused by work.

A compensation judge awarded benefits, but the Workers' Compensation Court of Appeals reversed in a split decision finding he was ineligible for workers' compensation benefits after March 2021 when he no longer had a formal diagnosis of PTSD. The Supreme Court affirmed noting, "The only mental impairment that is an 'occupational disease' eligible for workers' compensation benefits is PTSD, and only when that PTSD is diagnosed by a licensed psychiatrist or psychologist using the most recently published edition of the DSM."

WC Board must address whether first report of injury equates to acceptance of claim - New York

In Williams v. New York City Transit Authority, a train conductor sought benefits for PTSD after he witnessed the death of a person who fell between train cars. Initially, the transit authority submitted a first report of injury, indicating the claim was "medical only" and that there was an agreement to compensate. However, it later filed a notice of controversy arguing that there was no causal relationship between PTSD and employment and no compensable injury arising from the incident.

The conductor objected contending that the notice of controversy was untimely and that the first injury report was a binding acceptance of the claim. The Workers' Compensation Board (WCB) found that the notice of controversy was not untimely. The appeals court returned the case to the WCB because it did not address the issue of whether the first report of injury was a binding acceptance of the claim, nor did it explain why the notice of controversy was timely.

Appeals court addresses determination of average weekly wage for temporary worker who died on job - North Carolina

In Gilliam v. Foothills Temporary Employment, a college student was assigned to a position at a bakery and collapsed and died on his job. He was found to have an enlarged heart and the probable cause of his death was a fatal arrhythmia. His parents blamed the death on the heat in the bakery and a deputy commissioner found they were entitled to comp benefits. The Industrial Commission affirmed but reduced the amount of the award.

Both the company and parents appealed. The company argued that the testimony of a certain expert witness should have been excluded, but the appeals court ruled the company did not raise the issue before the Commission and, therefore, forfeited its right to challenge. The court also ruled that the Commission, which used the wages the student earned until his death, had not properly calculated the benefits payable to the parents. Their son's work history indicated he had worked the prior two summers from May through August and the court noted there was no reason to believe he would have stopped working before the end of August and his earnings should include all earnings through August, not as of the date of his death.

Injured workers can be compensated for medical marijuana - Pennsylvania

In two separate rulings, the Commonwealth Court cleared the way for medical marijuana reimbursements for injured workers who qualify for its use. In the cases Fegley v. Firestone Tire & Rubber and Appel v. GWC Warranty Corp., the court held that an employer or workers compensation carrier may be required to reimburse an injured worker for medical marijuana treatment costs. Although the state's Medical Marijuana Act (MMA) states that nothing in the MMA should be construed to require an insurer or health plan to provide coverage for medical marijuana, the law also does not alter the mandate under the Workers' Compensation Act (WCA) that they reimburse workers for reasonable and necessary out-of-pocket costs of medical treatment.

Relying on its analysis that the MMA does not require coverage for medical marijuana, and coverage is distinct from reimbursement under the WCA, the court concluded that there is no statutory language prohibiting carriers from reimbursing claimants who lawfully use medical marijuana to treat an accepted work injury when such treatment is medically reasonable and necessary. In addition, in the Fegley decision, the court ruled that the employer's failure to reimburse was a violation of the WCA. In Appel, the court held that the WCA mandates employers to reimburse claimants for out-of-pocket costs of medical treatment, which is reasonable and necessary for their work-related injuries

The court concluded that medical marijuana reimbursement would not cause an employer to violate federal law because reimbursement is not manufacturing, distribution, or dispensing of medical marijuana.

Argument with customer not in scope of employment - Pennsylvania

In Owens v. SJ Retail Services, Inc., a customer berated an employee for not wearing a mask and the argument became heated after the employee asked the customer to leave. The employee followed the customer out of the store, grabbed onto the customer's truck as it was leaving, and sustained a fractured wrist and hip. A WCJ granted comp benefits but the Board reversed, noting she had abandoned the course and scope of her employment. Upon appeal, the Commonwealth Court affirmed the Board's decision. Her pursuit of the customer was to continue the heated exchange and was not related to furthering the employer's business.

Commission explains why "coming and going" rule does not apply - Virginia

Under the "coming and going" rule injuries sustained while traveling to or from work are generally not compensable as employees are not "on the job" before arriving at their workplace.

Yet, the Workers Compensation Commission recently reversed a deputy commissioner's denial of benefits to an employee who was injured while scraping ice off his company-owned truck parked at his home.

The Commission explained that a worker was considered in the course of employment when "the means of transportation used to go to and from work is provided by the employer or the employee's travel time is paid for or included in wages," or "where the employee is charged with some duty or task connected to his employment while on his way to or from work." In this case, the employee maintains communication systems at 911 call centers and works on an "on-call" basis. He is provided a company truck to keep at home, travels directly from his residence to centers requiring maintenance, and is paid for his time spent driving.

His supervisor had informed him a recall had been issued on the vehicle and he had an appointment to get the airbags replaced. The vehicle's windows were covered by ice and when he was removing the ice, he fell, struck his head, and broke a bone in his hand. Although the deputy commissioner denied the claim finding his fall occurred during a "preparatory act" that preceded the course of his employment, the Commission, in a split vote, disagreed.