Legal Corner

FMLA
Comprehensive report of all 2023 FMLA cases

Every spring, the American Bar Association's (ABA) Federal Labor Standards Legislation Committee publishes a comprehensive report of FMLA decisions handed down by the federal courts in the previous year. The report summarizes court decisions in a user-friendly way and is a great resource.

Workers Compensation
Multi-purpose break negates coming and going rule - Florida

In Carol Ann Kulzer vs Sarah Marie Way and Greenleaf Trust, the Fifth District Court of Appeal reversed a trial judge's ruling that Sarah Marie Way was not within the course and scope of her employment when she crashed into a vehicle driven by Carol Ann Kulzer. Ms. Way normally worked in Michigan but was temporarily assigned to Ormond Beach to deal with a condominium left to Greenleaf Trust. The company paid for her travel and expenses. Before the accident she was running errands for the employer and stopped for lunch.

The trial court had ruled that Ms. Way's company, Greenleaf Trust, was not liable under the "coming and going rule" because her trip had included a lunch break. The appeals court found that her lunch break was only a small portion of the time she was out. Therefore, the trial court erred when it dismissed the employer from the suit. The case was remanded for further proceedings.

Concurrent dissimilar employment nixes credit to employer - Georgia

In Heaton Erecting Inc. v. Gierum, a crane operator had a home renovation business on the side, which he operated with his wife. He injured his back and was unable to work as a crane operator because he could not sit in a cramped position for extended periods and received temporary total disability benefits. However, he was able to work in his home renovation business and did several projects.

A few months later, he returned to his primary employer in a light-duty position but was laid off shortly thereafter. He sought recommencement of temporary total disability, but the company requested denial of further workers' compensation wage benefits because he was earning more in his business than he was making at the company before his work accident.

The central issue in this case was whether the side employment was concurrent with his work with Heaton. In the months before his accident, he was not earning income from the side business. However, an administrative law judge (ALJ) found that the pandemic and the wife's incapacity after major surgery was a "credible explanation" for it.

The ALJ also ruled, and upper courts affirmed, that the home renovation work was "concurrent dissimilar employment." Under state statute his wages from the dissimilar work are not included in the calculation of his disability benefits, therefore, Heaton could not receive any credit for his post-accident earning.

Court affirms compensation for foot injury but reverses award for depression and anxiety medication - Nebraska

In Tunink v. Continental Fire Sprinkler Co., an appeals court ruled that the depression and anxiety experienced by an alarm technician who injured his foot while at work must be connected to his injury for his family to be eligible for survivor benefits. He was injured when a heavy glass door hit his foot, but the injury was misdiagnosed as a sprain. Prediabetic and suffering from neuropathy, he ultimately had surgery and sought benefits for the injury and for the worsening condition of his anxiety and depression.

The compensation court ordered the company to pay for his past and future medical expenses related to his foot injury and resulting surgery, in addition to "medication for depression and anxiety." The appeals court reversed the award for his depression and anxiety medication, finding the award "was not a reasoned decision containing facts and conclusions of law pursuant to Rule 11." The case was remanded for the court to clarify its findings and determine the company's economic obligations. The issue of vocational rehabilitation benefits was rendered moot by the worker's suicide.

Seamstress receives benefits for COVID-19 infection - New York

In Leonard v. David's Bridal Inc., a workers' compensation law judge finding for occupationally contracted COVID-19 was affirmed by the Workers' Compensation Board and the Appellate Division's 3rd Department. The seamstress was able to document that she worked two days during shifts that overlapped with a colleague who tested positive for COVID-19 and that she developed COVID two days after her colleague.

In its ruling, the Appellate Division noted, the contraction of COVID-19 in the workplace "reasonably qualifies as an unusual hazard, not the natural and unavoidable result of employment and, thus, is compensable under the Workers' Compensation Law." It also noted the company had a mask policy and other protocols in effect for employees and customers, but it was often not followed. Therefore, it concluded there was substantial evidence to support the board's finding that she sustained a work-related injury by contracting COVID-19 in the course of her employment.

Appeals Court grants benefits because plastic sheathing is foreign substance and a hazard - New York

In Bazdaric v. Almah Partners LLC, a painter had a slip-and-fall accident on plastic sheeting that was placed to protect an escalator from dripping paint. He and his wife sued the owners of the premises and the general contractor, alleging violations of Labor Law § 241 (6), which requires employers to provide safe working conditions. A lower appellate court ruled the plastic covering was not a "foreign substance" like water, grease, or ice, and that the lawsuit was barred because the plastic was integral to the work being performed.

An appeals court disagreed, finding that the plastic covering was a slipping hazard that the defendants failed to remove, in violation of Industrial Code 12 NYCRR 23-1.7 (d), making the defendants liable under Labor Law § 241 (6). The court also found that the plastic covering was not integral to the paint job but was a nonessential and inherently slippery plastic that caused the injuries.

Court upholds $2.3 jury award in labor law claim - New York

In Vasquez v. Gilbane Building Company, et al., a worker was injured on a construction site when a 32-foot-long ladder that had been leaning against a wall fell, hitting her on the head and left shoulder and causing her to fall. The worker felt the ground vibrations created by heavy demolition debris caused the ladder to fall.

On appeal, the company argued that Labor Law § 240(1) was inapplicable because the ladder was not in use at the time of the accident, but the court disagreed. It noted the worker had established she suffered a gravity-related injury and that the falling ladder was an object that required securing. The company also argued the worker bumped the ladder with a wheelbarrow just prior to the accident, but the court noted this was speculative evidence. Even if there were non-speculative evidence, it was not the sole proximate cause as the record established the ladder tipped over in part because it was inadequately secured.

The court went on to find that the jury's award did not deviate materially from reasonable compensation.

Court provides guidance on concurrent employment - Pennsylvania

In Resources for Human Development v. Dixon (Workers' Compensation Appeal Board), a home health aide was injured when a patient fell on her. When she returned to work, the company was unable to accommodate her work restrictions. Her employer accepted the claim and based her average weekly wage (AWW) on her wages at the company. She worked a second job as a private duty health aide which she argued was a concurrent job and, therefore, petitioned that the calculation of the AWW include its wages.

The company argued that she was not concurrently employed when she was injured because she had not worked the other job on the day she was injured. The Commonwealth Court dismissed this argument as contradicted by case law and a misreading of Section 309(e). The issue was whether the employment relationship remained intact. The court noted the second job existed before the work injury and continued after the work injury, thus it was "sufficiently intact." Further, the employee need not be disabled from the concurrent job to require inclusion of the wages in the calculation of the AWW.

Supreme Court to weigh in on calculation of compensation rate for specific loss injuries - Pennsylvania

In Jackiw v. Soft Pretzel Franchise (WCAB), a worker lost the lower part of her right arm due to a crush injury. The company accepted liability, but the parties could not agree on what section of the statute should determine the benefit rate, Section 306(a) or Section 306(c). An ALJ determined and the Workers' Compensation Appeal Board and the Commonwealth Court affirmed that benefits were to be calculated according to Section 306(a), which limited her specific loss compensation rate to 90% of her average weekly wage since the specific loss results in an amount less than 50% of the statewide AWW. Section 306(c), which would have resulted in a higher award, has a schedule of compensation for disability relating to the specific loss or the permanent injury of certain body parts, but there is no provision for when the specific loss results in an amount less than 50% of the statewide AWW.

While the court recognized 40 years of precedent supported treating claimants equally under both Section 306(a) and Section 306(c), the Supreme Court granted a petition for review.

Judge allows case involving teacher who was shot to move to appeals court - Virginia

The Circuit Court judge who ruled in November that the first-grade teacher shot at an elementary school last year could go forward with a $40 million personal injury lawsuit against the Newport News School Board has signed off on transferring the case to an appeals court. The School Board had argued that the teacher's sole remedy is workers' compensation and has filed a claim on her behalf. The teacher's attorneys argue the case should be an exception to workers comp exclusive remedy because of its egregious nature.

The judge's recent actions grant the School Board permission to appeal the ruling now rather than after the trial slated for January 2025. It's not yet clear whether, or when, the Court of Appeals judges would accept the case. It's scheduled for an initial hearing on April 4.

Voluntary payment of equal wages for light-duty work is qualifying wage for timely claim - Virginia

In Lucinda Walker v. Virginia Department of Corrections, a worker injured her ankle and she was awarded medical benefits. While on light-duty she received full wages. Two years and twelve days later, she filed a claim for temporary total disability based on a change in condition. Such a claim is timely under Code § 65.2-708(A) if filed within 24 months from the last date compensation was paid pursuant to an award of compensation. The Workers' Compensation Commission found the claim was barred by the statute of limitations because the Commission's award was not an "order of compensation" but "medical only."

However, the appellate court concluded Code § 65.2-708(C) defines the voluntary payment of equal wages for light-duty work to be "compensation paid pursuant to an award of compensation," and the claim was filed within two years of the last day she received qualifying wages. Therefore, her claim was timely.