Legal Corner

ADA
EEOC must limit probe to one facility

In Equal Employment Opportunity Commission vs. Eberspaecher North America Inc., a divided U.S. appeals court ruled that a probe into alleged disability discrimination by an auto parts maker that operates seven factories must be limited to a single Northport, Alabama plant where the claims arose. A former employee who worked at the Alabama facility filed a charge with the EEOC alleging the company had violated the Americans with Disabilities Act (ADA) by firing him from his job following a series of disability-related absences.

The agency first requested information on the Alabama facility, then followed up with a request for nationwide data. When the company refused to provide the nationwide data, the EEOC issued a subpoena and applied for enforcement from an Alabama district court. The court ordered the company to turn over information related to the Northport facility, but not other facilities. Upon appeal the court noted, "The only employer listed in the charge is ENA's Northport facility, and the charge cannot be fairly read to target companywide misconduct." The judges noted the EEOC could have amended the charge before issuing the administrative subpoena to put the company on notice of a nationwide investigation, but it did not do so.

Workers' Compensation
Appellate Court clarifies employers' obligation to prominently display panel of physicians for injured employees - Georgia

In the March 2023 Advisory, we discussed Linda Lilienthal v. JLK, Inc., which addresses the legal requirement for employers to prominently display the list of physicians from whom employees may seek treatment if injured at work. A daycare facility posted the panel of physicians in a locked resource room. To enter the room, workers had to obtain a key kept "in a closed metal box, in a closed drawer, in a desk used by administration."

When a preschool teacher slipped and fell, she was given a photocopy of the list and the owner of the daycare made an appointment for her at one of the orthopedic groups on the list. According to the teacher, she did not know she could request another physician. While she received treatment, she continued to experience pain and ultimately sought medical treatment from her preferred physician, who was not on the list. Her physician opined that she had achieved maximum medical improvement but still suffered significant impairments requiring work restriction.

She requested that he be designated as her new treating physician, arguing that she could choose her doctor because the daycare center had failed to post a copy of the panel in "prominent places upon the business premises" as required by Georgia Code. An ALJ ruled the posting was sufficient to satisfy the law, although acknowledging the posting was not in the best place. The ruling was upheld by the Appellate Division of the State Board of Workers' Compensation and a superior court judge and the appeal proceeded to the Court of Appeals.

The Court found the ALJ used the wrong standard in this case. The ALJ did not determine whether the panel of physicians posted in the resource room was in a "prominent" or conspicuous place, but focused on accessibility, and accessibility does not mean 'prominent place', which must be easily seen by most employees. The ruling was reversed and remanded.

No comp benefits for injured volunteer skydiving pilot - Illinois

In Larson vs. Illinois Workers' Compensation Commission (Quad City Skydiving), an appeals court reversed a lower-court decision and ruled that a woman injured while piloting a skydiving plane was ineligible to collect workers compensation benefits because she was flying on a volunteer basis to get flight time experience. In the accident, she suffered blunt-force trauma to her face and underwent two reconstructive nasal surgeries.

A trial judge had determined that there was an employer-employee relationship and the injured pilot was entitled to comp benefits. The injured pilot did not have an employment contract and agreed to work as an unpaid pilot while the company agreed to provide the plane, pay for gas, and provide instructions on where to fly. The company had no employees and all pilots were volunteers. Even though this arrangement gave the pilot the benefit of accumulating flight hours for free, the provision of this benefit was mutual gratuity, not consideration for her service. An employee-employer relationship cannot exist absent a contract for hire, either express or implied.

Retaliation for filing comp claim only applies to current employees - Missouri

In Lisle v. Meyer Electric Co. Inc., a journeyman electrician told his foreman he had carpal tunnel syndrome and wanted to file a workers comp claim. When the company president learned of the request, he fired the electrician who then filed a comp claim and a lawsuit asserting he had been wrongfully discharged. Later he voluntarily dismissed the suit.

More than a year later he applied for a job with the same company through his union. The company hired another electrician despite its agreement with the union giving Lisle priority over the electrician who was hired. Lisle then filed another lawsuit against the company for retaliation. A trial judge granted summary judgment to the company because Lisle was not an employee when it declined to hire him. The appeal made its way to the Supreme Court.

The court found the statutory definitions for the terms "employee" and "employer," respectively, are a person in the service of another for pay, and a person using the service of another for pay. The use of the present tense implies a current relationship, therefore, workers comp laws, which are subject to strict construction, only prohibit discriminatory acts occurring during the employment relationship.

Detective should have received benefits under special errand exception - New York

In Serrata v. Suffolk County Police Department, a detective sergeant was on call during the overnight hours and received a call about a suspected crime. He used his personal vehicle to travel to the precinct, as required, and pick up a department car to go to the crime scene. His vehicle was struck by a garbage truck and he sustained injuries. A WCJ awarded benefits, but the Workers' Compensation Board reversed, finding he was not within the scope of employment while traveling to the precinct.

Upon appeal, the Appellate Division's 3rd Department acknowledged that generally, injuries incurred while commuting to work are not compensable, however, there is an exception known as the special errand exception. It applies "if the employer both encouraged the errand and obtained a benefit from the employee's performance of the errand." Even though his pay did not begin until he reached the precinct, his "special errand" began after he got the call.

Heart attack triggered by stress at work compensable - New York

In DiMeo v. Trinity Health Corp., a physical therapist became visibly upset during an interaction with her supervisor and left work with chest pains, sweating, and nausea. She went to the emergency room and was diagnosed with myocardial infarction. She filed a comp claim, arguing the heart attack occurred as a result of work-related stress. A workers compensation law judge established the claim but the Workers Compensation Board reversed on the basis that she did not suffer a physical injury. Upon appeal, Appellate Division's 3rd Department said the board's decision was not supported by substantial evidence. The treating cardiologist testified unequivocally that although there was no blockage and heart function appeared normal the next day, she suffered a myocardial infarction and opined it was causally related to the interaction with her supervisor. A myocardial infarction, in and of itself, regardless of its extent constitutes a physical injury.

Worker can pursue a Labor Law claim for injuries incurred while helping co-worker - New York

In Leonard v. City of New York, The Appellate Division's 1st Department ruled that the "rescue doctrine" could apply to a worker pursuing a Labor Law claim for injuries while attempting to aid a co-worker who was hurt during a trench collapse. A trial court had ruled that his injuries, which occurred after the collapse, did not arise from a violation of any of the applicable Industrial Code provisions, and therefore, were not compensable.

The appeals court reversed, noting the rescue doctrine "is based on an assumption about human behavior: Bystanders who observe an incident that places a person in peril will be impelled to rescue that person." However, it cautioned it is for a finder of fact to determine whether a rescue attempt was a "reasonable course of conduct at the time."

Civil suit over fatal workplace shooting can proceed - North Carolina

In Marlow v. TCS Designs, an employee of a commercial furniture manufacturer was fatally shot by her co-worker after two verbal confrontations. Her husband filed a work comp claim, which the company contested. Shortly before the scheduled hearing, he voluntarily withdrew the claim and filed a civil suit against the company and various employees.

The company made a filing with the Industrial Commission conceding the death was compensable and moved to dismiss the civil suit, which a trial court denied. Upon appeal, the Court of Appeals noted there was no question the shooting occurred in the course of employment, but the question was the cause of the shooting and whether it arose from employment. The court found that the shooting occurred because of personal animosity and there was no causal relation with the job. Therefore, the Industrial Commission does not have exclusive jurisdiction.

No loss-of-use benefits for estate after worker's death - Pennsylvania

In Steets v. Celebration Fireworks Inc., an employee suffered traumatic brain and body injuries following an explosion at work. She was awarded total disability benefits (TDB) and was entitled to specific loss benefits when the TDB ceased. While an appeal by the company was pending, she died of complications from bilateral pneumonia caused by her work-related respiratory deficiency.

The estate filed claims seeking payment for her funeral expenses, payment of her specific loss benefits, and penalties. The company was ordered by a WCJ to pay only funeral expenses because she had no dependents with rights to either her total disability or specific loss benefits. The WCAB and a divided Commonwealth Court affirmed.

Comp benefits pulled from worker who refused to quit smoking - Pennsylvania

In Bonnie Cole vs Wegmans Food Markets Inc., a WCJ ruled that Wegmans could suspend its compensation benefits to a worker who had sustained a severe ankle fracture that failed to fully heal and eventually led to an amputation. While she was undergoing treatment, a doctor advised the heavy smoker to stop smoking while the fracture healed. According to her testimony, she quit for three months but resumed smoking, and was never offered smoking cessation treatments. Her ankle failed to heal, an infection developed, and she elected to have an amputation.

An IME found her treatment reasonable but opined that her failure to quit smoking caused the bone not to fuse, resulting in the infection and the need for an amputation. Her physician offered opposing testimony. Wegmans argued that the law allows suspension of workers' compensation benefits when a worker refuses reasonable medical treatment and her failure to follow her doctor's orders to stop smoking led to the amputation.

The WCJ granted the employer a suspension of benefits and the ruling is now on appeal to the Workers' Compensation Appeal Board.