Legal Corner

ADA
U.S. Appeals Court upholds verdict against trucking company for refusing to hire deaf driver

In EEOC v. Drivers Mgmt, LLC and Werner Enterprises, Inc., the 8th Circuit Court of Appeals upheld the lower court's decision that the Omaha, Nebraska-based Werner Trucking violated the ADA when it refused to hire a qualified truck driver who was deaf. The initial jury award was significant, including $75,000 in compensatory damages and $36 million in punitive damages, which was later reduced significantly to statutory limits.

The applicant had completed the training in the company's driving school and received his CDL. Because the company failed to individualize the direct threat analysis, the court rejected the company's arguments that hiring the driver posed a direct threat to others on the road and would create an undue hardship.

Takeaway: Dismissing an applicant because they pose a "direct threat" cannot be based on a generalized safety theory or stereotypes. It requires an individualized assessment of the applicant's current ability to perform the job's essential functions safely.

Workers Compensation
High court orders Workers Comp Trust Fund payments to insurers in runoff and insolvent fund - Massachusetts

In Arrowood Indemnity Co. v. Workers' Compensation Trust Fund, the Supreme Judicial Court has affirmed a lower court decision that insurers in runoff are not precluded from receiving reimbursements on second-injury claims. In Massachusetts Insurers Insolvency Fund v. Workers' Compensation Trust, the high court said the Department of Industrial Accidents Reviewing Board incorrectly declared that the insolvent carrier fund was not eligible for reimbursement of cost-of-living adjustments.

The high court said state law prohibits reimbursement only for self-insured employers, self-insured groups, and municipalities that elect not to pay assessments into the Workers Compensation Trust Fund, and neither the insolvent carrier fund nor a carrier in runoff falls into these categories.

High court clarifies PTSD benefits for first responders but vacates OSTD compensability - Minnesota

In Workers' Compensation Court of Appeals (Peterson) v. City of Minneapolis, a police officer started therapy, was diagnosed with PTSD, and was advised by his therapist to stop work as a police officer. Under the state's laws, he was entitled to the statutory presumption that his PTSD was work-related. He filed a comp claim, but the city did not investigate and denied the claim partially on the basis that he had a mental health condition that pre-dated his employment. Documents verified that he had passed a pre-employment mental health examination before he started working as an officer.

While an independent exam determined he currently did not have PTSD, it speculated that this could be a result of his mental health treatment. Previous medical records suggested he met the criteria for PTSD. In a divided decision, the high court affirmed the WC Court of Appeals finding for compensability, potentially expanding the coverage for PTSD claims.

The WCCA had also addressed the issue of whether "other specified trauma and stressor-related disorder (OSTD) is a compensable consequential injury of PTSD." The high court found that the award of benefits for PTSD rendered any decision regarding the merits of OSTD unnecessary.

Board erred in denying extreme hardship application - New York

State law provides that if a partially disabled worker has a loss of wage-earning capacity over 75 percent, the Workers' Compensation Board may reclassify them as having a permanent total disability if they can demonstrate extreme financial hardship. Within the year before the scheduled exhaustion of indemnity benefits, the worker must file a C-35 form that "demonstrates financial hardship beyond the ordinary and existing in a very high degree."

In the Matter of Martin v. D'Agostino Supermarkets Inc., an Appellate Court overturned the WC Board's denial of the application from a 58-year-old worker who was classified with a permanent partial disability and found to have sustained an 80 percent loss of wage-earning capacity. The court noted that her essential monthly expenses exceeded her income by more than $300, and the Board had offered no substantial evidence to support their finding.

Insurers attempt to reinstate denied comp claim after wrongful death suit leads to sanctions - North Carolina

In Marlow v. TCS Designs, a worker was shot and killed by a co-worker while working at a commercial furniture manufacturer. The employer denied survivor benefits for her husband, arguing that the altercation was unrelated to the job. He filed an appeal, but a year later dropped the request for comp benefits, and the insurer did not object.

A few days later, he filed a wrongful death suit. The insurer and employer responded by approving workers comp survivor benefits and sending checks to the husband, who did not cash them. When the Industrial Commission denied a motion to reopen the claim, the insurer appealed. The appeals court said the unusual nature of the appeal was not covered in the work comp statutes, but that a voluntary dismissal of the claim stripped the Industrial Commission of its jurisdiction, allowing the wrongful death suit to proceed. It ordered the employer and insurer to pay attorney fees and costs and remanded the case to the trial court to determine the amount. The wrongful death suit is continuing.

College enrollment without work search bars wage-loss compensation - North Carolina

Injured workers who can work but can't find a job must demonstrate that they have made a "reasonable effort" to find a job to receive wage-loss compensation. In Cable v. Consolidated Metco, Inc., a production supervisor suffered a lumbar sprain and returned to work without work restrictions. A few months later, he was laid off when his plant closed and did not search for a new job for over a year. Then in one month, he unsuccessfully applied for 24 jobs and enrolled in a community college.

He applied for wage-loss compensation dating back to his layoff. The Industrial Commission denied the claim, concluding he voluntarily removed himself from the job market by enrolling in a full-time community college without first conducting a reasonable job search. The appeals court agreed, noting full-time college enrollment without a prior reasonable job search constituted self-imposed unemployment, disqualifying him from wage-loss benefits.

Second job limits benefits to temporary partial disability - Pennsylvania

In Amazon.com Services LLC v. Carlson, an employee injured his neck and received work restrictions, which Amazon could only accommodate in a night shift position. He declined the position and was eventually terminated for job abandonment. A WCJ awarded temporary total disability benefits (TTD) and the WCAB affirmed.

Amazon appealed. The worker held a second job at a tavern, working a few nights a week, before and after the injury, but was paid in cash and the income was not reported. Because he maintained concurrent employment at the time of injury and continued working thereafter, he was not totally disabled from all work. The Commonwealth Court agreed. He was entitled only to temporary partial disability benefits (TPD), and Amazon's benefit liability should be reduced by his earnings from the tavern job.

Staffing agency and statutory employer liable in catastrophic injury case - Tennessee

In Huberney Vallejo, o/b/o Jhon Vallejo v. South Power Electric, LLC, The Sheffield Fund, Maddux Electric Co., Inc., and Hanover Insurance, an electrician fell from a step ladder and suffered a traumatic brain injury and other catastrophic injuries. The staffing agency, which employed him, had no insurance. There was a contractual agreement that delegated day to day control to the Maddux Electric Co.; therefore, Maddux was the statutory employer with factual control. Noting no party can "contract away" obligations to cover workers under workers comp, the court concluded that the staffing agency along with Maddux and the insurer were liable.

Maddux and the insurance company denied the claim, arguing the electrician had not followed safety protocols. Since there were no witnesses, no evidence that the electrician intentionally violated a safety rule or that caused his injuries, and the ladder used was reportedly in poor shape but had been discarded, the court found the denial unreasonable.

It ordered the parties to cover medical costs, which would be more than $3.9 million, along with $184,058 in court and attorney fees and $12,516 in attorney expenses related to the worker's immigration court proceedings, delayed and complicated by the injury. The companies also were ordered to continue to pay $688 in weekly disability.

LIRC clarifies apportionment rules - Wisconsin

In Jamie Stanek vs. City of Beloit, a worker sustained a left knee injury, and the Labor and Industrial Review Commission (LIRC) awarded compensation that included five percent permanent partial disability. A few years later, the worker filed a new hearing application claiming compensation for total left knee replacement surgery. The employer agreed this was causally related to the work injury and paid medical expenses, but disputed the extent of the liability for permanent partial disability (PPD). Based on a doctor's opinion they argued that the preexisting disability was 75 percent responsible for the surgery. Therefore, 75 percent of the PPD should not be compensable.

The employee argued that this was not applicable because he had a preexisting condition, not a preexisting disability. The courts have generally found a disability exists when the worker is unable to perform work and has lost wages. Since he was able to work and did not lose wages because of his left knee condition, there was no pre-existing disability attributable to the left knee. The statute allows for apportionment of preexisting disabilities, not preexisting, nondisabling conditions. Therefore, the LIRC affirmed an ALJ's finding of no apportionment.