Legal Corner

ADA
Eleventh Circuit Court rules failure-to-accommodate claim must have an adverse effect

Circuits are split as to whether the failure to provide a reasonable accommodation to a qualified individual is a violation of the ADA on its own or if the employee must also suffer an adverse action. In Beasley v. O'Reilly Auto Parts, a hearing-impaired employee filed suit claiming the employer had not provided an American Sign Language (ASL) interpreter for shift meetings and other work activities. The Eleventh Circuit, which covers Alabama, Florida, and Georgia, ruled that the employee had not shown that he suffered an adverse employment action, which is required in an ADA failure-to-accommodate claim.

Workers' Compensation
WCAB clarifies role of vocational experts in apportionment - California

In Nunes v. California Department of Motor Vehicles, a workers' compensation judge (WCJ) issued an unapportioned award of 100% permanent and total disability for injuries to an employee's arms, neck, and left shoulder based on the findings of a vocational expert. Although the QME and vocational expert agreed that the employee was unable to compete in the open labor market and was not amenable to vocational rehabilitation, they disagreed on what percentage of the disability was industrial.

The Workers' Compensation Appeals Board (WCAB) added much-needed clarity to the role of a vocational expert in the apportionment analysis when it issued an en banc decision rescinding the WCJ's award. En banc decisions are binding precedent on all WCAB panels and workers' compensation administrative judges. It ruled the law requires a reporting physician to make an apportionment determination and there is no statutory provision for "vocational apportionment." While vocational evidence may be used to address issues relevant to the determination of permanent disability, it may not substitute for valid medical apportionment.

Court clarifies use of the 120-day "pay and investigate" to deny claims - Florida

In Churchill v. DBI Services LLC, when a rest area attendant mixed cleaning products with water there was a chemical reaction and she was hospitalized for five days with acute respiratory failure with hypoxia. When she filed a WC claim, the adjustor accepted the claim as compensable and paid for treatment. Florida law has a120-day "pay-and-investigate" provision, which creates a right to investigate and delay the compensability determination up to 120 days after the first benefit was provided. This right only exists if a "timely" 120-day letter is sent. More than two months after the accident, the carrier sent a 120-day letter and denied the claim as the 120-day deadline approached. The court found sending a 120-day letter 60 days after the payment was not timely and sent the case back to the JCC to award benefits and attorney fees.

Takeaway: If in doubt about accepting compensability, always send a letter on the same day that any benefit payment (medical or indemnity) is made or as soon thereafter as reasonably practicable.

Negligence suit against co-worker for parking lot injury barred by exclusive remedy - Georgia

In Odom v. Franklin, a worker who had just finished his shift was struck in the parking lot by the car of a co-worker who was arriving late for his shift. He filed a comp claim with his employer and later filed suit against his co-worker. A trial court found that the complaint was barred by the exclusive remedy provisions and the Court of Appeals affirmed, noting "that an employee's period of employment includes a reasonable time for ingress to and egress from the workplace, while on the employer's premises, and that an employer-owned parking lot is considered part of the employer's premises."

City loses appeal to deny PTSD award to police officer - Missouri

In City of Clinton v. Dahman, a Court of Appeals upheld an award of benefits for a police officer with post-traumatic stress disorder (PTSD) finding the officer had established that the work-related stress was extraordinary and unusual. The officer heard a friend and co-worker who was on patrol report that he had been shot and he responded to the scene and saw his friend unconscious on the ground. When he was informed that the shooter's vehicle had crashed after fleeing the scene, he responded to the scene alone and learned that the suspect had used a high-powered rifle, which could penetrate the protective gear he was wearing. He was alone at the scene for about 30 minutes and later learned his friend had died, the first officer-related fatality ever experienced in the city. When he resigned a few months later, he acknowledged he was having mental health and alcohol problems and an administrative law judge found his PTSD was a compensable occupational disease. The Court of Appeals upheld the award.

Worker entitled to benefits despite drinking and other infractions - New York

In Pernice v. Harlan Electric Co.,a lineman was on standby status because inclement weather might result in immediate repair needs. He was allowed to make personal errands and go to lunch if it was near the worksite. He improperly used his personal vehicle to go to lunch and had a few beers with co-workers. When returning to the worksite in a company truck driven by a co-worker, he was injured in an accident. A WCJ found the injured compensable, the Workers' Compensation Board, and an appellate court affirmed.

The court noted notwithstanding his admitted deviation from the employer's policies, the employee was on standby status at the time of the accident, was not engaged in such prohibited activities at the time of the accident, and his deviations did not result in the accident or render him unable to perform his work duties.

'Untimely notice' denial of trucker's claim overturned by high court - North Carolina

In Sprouse v. Mary B. Turner Trucking Co., a couple worked as long-haul drivers and were injured in an accident when the front right tire of their truck exploded. They reported the accident and the husband received WC benefits and the wife sought care with her primary care for soreness and muscle spasms. About a year later, she stopped working because her condition deteriorated and she experience pain in her leg and foot and weakness in her arms. She required back surgery and submitted a post-surgical workers' compensation claim approximately 470 days after the accident.

A deputy industrial commissioner issued an award, which the Industrial Commission affirmed, but a divided appeals court overturned finding she had failed to timely report her injury. The case moved to the Supreme Court and the only expert testimony was presented by her neurologist who opined the injury arose out of and in the course of her employment. The high court noted that since this evidence supported the commission's findings, the Court of Appeals must affirm the agency's determinations. Further, the commission's factual findings supported its conclusion that she communicated with her employer on the date of the accident and did not reasonably know of the nature or seriousness of her injury.

Appeal by city denied in firefighter's cancer claim - Pennsylvania

In City of Philadelphia v. Joseph Healey, one of the cancer-causing chemicals identified by the firefighter was not initially listed as a Group 1 carcinogen but was added when the comp law was revised. The city argued this was an unconstitutional delegation of the lawmakers' legislative authority. The Commonwealth Court declined to overturn the award of benefits, noting the listing of a chemical does not guarantee benefits, the injured worker must prove exposure to the substance and that it is linked to cancer and the firefighter had done so.

Benefits awarded to worker who clocked out, played lottery, went to restroom, and subsequently fell - Virginia

In Rankin v. Go Mart Inc., a gas station's convenience store clerk clocked out of her shift at 10 p.m., played the lottery, and walked to a restroom in the adjoining Subway restaurant, which was closed and dark. She caught her toe on a black rug and fell. The WCC deputy commissioner denied her claim, finding playing the lottery was a personal act and her fall did not occur in the course of her employment. However, the full Commission reversed noting precedent that employees have a "reasonable time" to exit the employer's premises and playing the lottery was not a personal frolic that took her out of the course of employment.