Legal Corner

ADA
100 percent release for work policy may violate ADA

The EEOC has sued Ann Arbor, Michigan-based Navitas Systems LLC alleging the battery manufacturer used an unlawful company policy to deny a reasonable accommodation and terminate an employee.The company maintained a policy that required an employee returning from any type of medical leave to have a "100% release for work."

The worker suffered a severe injury to his left rotator cuff and wrist and was cleared to return to work with the restriction not to use his left arm. He requested permission to return to work because as a controller he could do the essential functions of his job with his right arm, but the company refused. A similar case was recently filed in the U.S. District Court for the District of Minnesota against Federal Express Corporation alleging that it had violated the ADA by enforcing a 100 percent healed policy against an employee.

FMLA
Additional medical opinions when contesting certification not required

In Perez v. Barrick Goldstrike Mines Inc, a worker alleged he was injured when his haul truck collided with a mine wall. While there were no outward signs of injury and X-rays were negative, a doctor certified his absence due to his reported pain. The company had cause to investigate the alleged accident and hired a private investigator, who determined the worker was doing repair work at his rental properties while he was absent.

After presenting the evidence to the worker, the employer fired him, concluding that he had faked his injury and violated company policy. The driver filed suit, claiming violation of FMLA, arguing the employer never sought recertifications or subsequent opinions from additional medical experts. The 9th Circuit court (the largest Court of Appeals covering nine western states and two territories), found that while FMLA language gives an employer the option of requiring a second or third opinion and seeking recertification, it does not require an employer to provide contrary medical evidence if it doubts the validity of the original certification. Four other appellate circuits had reached similar conclusions. Thus, it affirmed a district court's judgment for the employer.

Workers Compensation
Subcontractor without comp coverage cannot sue general contractor - California

In American Building Innovation LP vs Balfour Beatty Construction LLC, a Court of Appeals upheld a trial court's ruling that a subcontractor could not seek compensation for work it performed while its license was suspended for a failure to carry workers compensation coverage. Although American Building Innovation LP initially had a comp policy, it stopped paying premiums due to a dispute. The dispute (unrelated to the project) was settled several years later and the policy was retroactively reinstated.

The court noted the subcontractor had knowingly refused to pay the premiums and the retroactive reinstatement of the policy following that settlement was essentially meaningless because it occurred "long after the statute of limitations ran on any workers compensation claims, rendering the coverage illusory." The court also upheld $1.55 million in attorneys' fees that had been awarded to the general contractor.

Insurance Co. can protect subrogation lien in business trip injury suit - Georgia, Indiana

In Hensley v. LLC, a worker suffered serious injuries when she tripped over uneven concrete and fell at a hotel during an Indianapolis business trip. She received comp benefits from her employer's insurer, Hartford, and filed a premises liability lawsuit against the hotel. Applying state tort law, the district court granted summary judgment in favor of the defendants because they either did not exercise the requisite control over the hotel premises or did not have actual knowledge that the curb presented an unreasonable risk of injury.

Upon appeal, the court found that Hartford had a right to intervene and it was an indispensable party meaning that its intervention destroyed diversity jurisdiction and the case would have to be remanded to the district court with instructions to remand this case to the Georgia state court.

Exclusive remedy applies to parking lot injury - Massachusetts

In Meehan v. Lazer Spot, Inc., a worker had punched out and was in the parking lot going to his car to leave for the day when a coworker in an employer-owned truck hit him. The worker brought a negligence claim against the employer and co-worker. A trial court granted the employer's motion for summary judgment, based on the exclusive remedy doctrine, and the injured worker appealed.

While the appeals court acknowledged that employees on their commute to and from work are generally not in the course and scope of their employment, state courts have extended compensability to injuries arising while an employee was arriving to or departing from work on a passage to which the employer had a right of use, the risk of injury was a hazard to which his employment exposed him, walking across the premises to his designated parking area was incidental to his employment, and there was a causal relation between his employment and the injuries he suffered. Hence, the exclusive remedy applied.

7-Eleven franchisees are not employees - Massachusetts

In Patel v. 7-Eleven, the Supreme Judicial Court ruled that 7-Eleven franchisees are not the company's employees under the independent contractor statute. It held that 7-Eleven franchisees are not performing a "service" for their franchisor but are engaged in a business-to-business relationship with 7-Eleven. This means the state's strict "ABC" test for determining an independent contractor relationship does not apply to the franchisee-franchisor relationship.

Happy hour injury compensable - New York

In The Matter of the Claim of Bruce A. Matter v. Google Inc. et al, the Appellate Division of the state Supreme Court ruled a Google Inc. worker who was diagnosed with traumatic brain injury after being struck by two motor vehicles while leaving a happy hour event suffered a compensable workplace injury. Google denied the claim, arguing the worker was not injured in the course and scope of employment and a WC law judge agreed. Upon appeal, the worker argued a manager had put the happy hour on everyone's calendar and happy hours were "an integral part" of his duties as an account executive. The Board reversed, and the appellate court agreed, finding that "the employer exercised a degree of control sufficient to find a causal nexus at the time of the accident." Further, the employer derived a benefit from the worker's participation in the event.

High court allows medical provider to sue insurer for unpaid benefits - Pennsylvania

In Elite Care RX v. Premier Comp Solutions, the state Supreme Court considered how a healthcare provider can pursue a claim against an insurer for unpaid medical bills incurred by injured workers receiving workers' compensation benefits. Can they pursue a civil lawsuit or do they have to go through the administrative processes of the Workers' Compensation Act? A Superior Court had ruled that the provider could pursue a civil lawsuit.

In this case, the insurers argued that Elite Care RX was not a provider, because it operated as a billing agent for some of the medical providers who purchased claims from a home delivery pharmacy, Patient Direct RX. In response, Elite Care RX brought several fee-review proceedings, prevailing in many, but it decided to pursue a civil suit rather than appeal the adverse decisions.

The Supreme Court was evenly divided on whether to affirm the Superior Court's ruling, so the ruling was left intact. Complaints that employers and insurers have not met their legal and contractual obligations regarding payment of workers' compensation benefits now have a path outside the comp system. It remains to be seen how the decision will be interpreted and what stakeholders are allowed to bring common-law tort claims.

Widow lacks standing to sue for Medicare recovery - North Carolina

Litigation that allows third parties to gain double damages by identifying Medicare payments that should have been made by private insurers companies under the Medicare Secondary Payer Act of 1980 has proliferated. In Carra Jane Penegar vs Liberty Mutual Insurance Co., a worker diagnosed with mesothelioma filed a comp claim but died before it was finalized. The Industrial Commission awarded his widow the cost of treating the disease while her husband was alive, as well as death benefits. The widow filed a Medicare recovery suit in federal court against Liberty Mutual, claiming the insurer had not properly reimbursed Medicare for her husband's medical care. In addition to arguing that it had fully paid Medicare on an outstanding lien, Liberty Mutual contended the widow had no standing because she was uninjured per the settlement agreements. The court agreed, noting that Article III of the U.S. Constitution mandates that there must be an injury to sue in federal court.

Employer does not have to provide translator during discovery - Tennessee

In Asad Almalhi vs. Indmar Products Co. Inc., a welder whose first language is Arabic was injured and sought a translator to ensure he responded to the discovery requests correctly. The employer argued that the injured worker acknowledged a certain proficiency in the English language and initially did not request a translator. Further, it argued while state law gives trial courts the ability to order an employer to provide state-certified interpreters for hearings, there was no comparable rule or regulation that compelled the hiring of interpreters to assist with the translation of written documents.

Although a trial court ordered the employer to hire an Arabic translator, the appeals court noted that in several instances the worker demonstrated English proficiency and he did not explain in any detail his need for a translator. Given the particular circumstances in the case, the court reversed the trial court order and remanded the case.