Legal Corner

Workers Compensation
Lawsuit for workplace COVID-related death should not have been dismissed - California

In Chavez v. Alco Harvesting LLC, the Court of Appeal reversed a dismissal by a trial court, noting the case had all elements of the fraudulent concealment exception to the workers compensation exclusivity rule. The widow of a foreman and bus driver who died from COVID argued that there had been an outbreak at a motel where workers were housed but the employer failed to warn the employees of the danger. The company had argued that the widow had not proved it had "actual knowledge" of the COVID-19 hotel outbreak, but the appeals court noted it failed to report the outbreak to the health department, notify its employees, or implement measures to prevent or curb the outbreak.

Appeals court upholds AB5 - California

In Olson v California, the federal 9th Circuit Court of Appeals held that the Legislature was well within its rights to require different tests to decide whether a gig worker is an employee based on the type of services being provided, for roughly the same reason lawmakers were allowed to require that only some service providers pay fees when filing liens.

Jury awards $58 million to train worker - California

In Pablo Scipione v. Kinkisharyo International LLC, a jury awarded $58 million to a train yard independent contractor who slipped and fell on top of a train while performing electrical repairs at Kinkisharyo International's Palmdale train manufacturing yard. While he continued to work full-time for nearly a year and a half, he was diagnosed with complex regional pain syndrome and had to stop work. In his negligence suit, he argued the company routinely ignored proper safety protocols, failed to take any corrective action concerning the dangerous conditions on the tops of the trains, such as inadequate lighting and slip hazards, and required a demanding pace of work that didn't take worker safety into account.

The company failed in its argument that the worker was its employee and subject to the exclusive remedy of the workers' compensation system. The jury awarded the employee a total award of $58.35 million - $54.15 million in compensatory damages and $4.2 million in punitive damages.

Worker can receive PTD for a scheduled loss and PPD for non-scheduled injuries - Illinois

In The American Coal Co. v. IWCC, a long-time underground coal miner suffered a serious injury and received permanent total disability (PTD) for loss of use of both eyes but the company contested permanent partial disability benefits (PPD) for injuries affecting his spine, hip, and abdomen, as well as psychological injuries. In an earlier case, a court had determined that the words "total" and "permanent" did not serve as a maximum benefit for injuries sustained in a single accident but are a legislative determinant of compensation for specific injuries.

Since the evidence indicated the worker had not reached maximum medical improvement for his hip, spine, abdomen, or head, and these injuries caused permanent restrictions or a loss of earning capacity, he was entitled to PPD.

Uber and Lyft reach agreement with Attorney General on misclassification - Massachusetts

Uber Technologies and Lyft agreed to pay drivers a minimum of $32.50 per hour and pay $175 million to settle a lawsuit by the Attorney General alleging they improperly classified drivers as independent contractors. Drivers will also receive paid sick leave, accident insurance, and healthcare stipends. The companies must also stop funding or supporting a ballot initiative that would have asked voters in to classify app-based drivers as independent contractors.

Fitness for duty exam does not violate due process - Michigan

In Capen v. Saginaw, a maintenance worker was reclassified to a lower-paying job, and a co-worker submitted a written report that he threatened to kill his supervisor and an administrator. The administrator ordered a "fitness-for-duty" evaluation with a psychologist, sought a criminal investigation, and put the worker on paid administrative leave.

When the worker attended the mandatory fitness-for-duty test, he told the psychologist that he was having neurological issues that affected his work. The psychologist concluded that the worker was unable to perform the work described in his current job description and that his neurological condition may have caused a personality change. He recommended further evaluation.

The administrator sent a letter to the worker with the findings and requested that he apply for short-term disability leave and release his medical records. He did not appear for the neuropsychological evaluation or release his records and was then sent a letter to participate in the "interactive process" pursuant to the ADA. When he did not attend the meeting, he was terminated.

The worker filed a lawsuit, arguing he had a right to refuse his fitness-for-duty evaluations under the Due Process Clause and he was deprived of this right without any process. He appealed the decision of the district court to grant summary judgment, and the Court of Appeals, Sixth Circuit noted that it had not addressed whether fitness-for-duty evaluations implicate the protections of the Due Process Clause, however, other circuits had.

Sister circuits have recognized that a fitness-for-duty evaluation may trigger the protections of the Due Process Clause if it deprives a government employee of a constitutionally protected property interest in his or her employment by placement on unpaid leave or termination, may stigmatize a government employee's reputation unfairly, and might implicate a government employee's constitutionally protected right to privacy, if the evaluation requires the disclosure of confidential medical information. The worker did not argue any of these, but argued the Due Process Clause's guarantee of liberty protects an individual's ability to refuse unwanted medical treatment, and that this protection extends to fitness-for-duty evaluations.

The court concluded while the ability to refuse medical treatment is protected by the Due Process Clause, the worker was not required to receive a particular course of treatment. Further, the right to refuse unwanted medical treatment is based "on well-established, traditional rights to bodily integrity and freedom from unwanted 'touching'.However, this was not part of his fitness-for-duty evaluations, which were to focus on memory, comprehension, reading, writing, and drawing abilities.

High court determines worker can recover costs of medical treatment by non-intervening providers - Minnesota

In Daniel Johnson v. Concrete and Furniture & Things, et al, a worker injured his back at two different employers in March 2004, October 2018, and December 2018, and sought comp payments for outstanding medical benefits in May 2021. The employee notified the medical providers of their right to intervene. When two providers did not respond, the compensation judge issued an order extinguishing their potential intervention interests. The employee then asserted a direct claim for payment of the medical expenses.

The employers argued that because the providers' interests were extinguished by the court order, the employee's right to assert a direct claim for payment was also eliminated. A compensation judge disagreed but the WCCA reversed and the Supreme Court was asked to determine whether the employee may assert a direct claim for unpaid medical bills when the unpaid medical providers' intervention interests were extinguished. The Court concluded that the language in the statute does not limit an employee's right to seek direct payment of medical expenses, even when a medical provider has failed to intervene to assert a claim.

Sole proprietor failure to notify insurer of injury in timely manner nixes claim - Pennsylvania

In Erie Insurance Property & Casualty Co. v. Heater (WCAB), the sole proprietor of an eponymous business was its only employee. He suffered a severe injury that left him a quadriplegic and filed a comp claim. Under the statute an employee is required to file a claim to the employer within 120 days. While a workers compensation law judge determined there was not a timely notice of the injury, the WCAB reversed, noting since he was self-employed, notice of the work injury was instantaneous.

Upon appeal, the Commonwealth Court disagreed. It noted the act defines the term "employer" in two ways, one of which includes the employer's insurer. While it recognized the law was ambiguous where the injured worker and sole proprietor are the same, it determined delaying would be detrimental to the carrier and would create a potential class of workers who are not subject to the forfeiture/loss of benefits provision of the statute. Hence, when the injured employee is also the sole proprietor/employer, the "employer" to whom the injured must report a work-related injury is the insurer that bears the ultimate liability for the claim.