Legal Corner

ADA
Unpaid leave is reasonable accommodation

In Dieng v. Orkin LLC, a pest technician injured his knee and was restricted to light duty work. Therefore, he could not do the essential functions of his job, such as heavy lifting, bending, and crawling. Although there were positions such as customer service that allowed for light duty work, the company chose to permit him to take unpaid leave for several months as a reasonable accommodation.

The tech sued the company, arguing that unpaid leave was not a reasonable accommodation and the company was obligated to reassign him to another position that met the light duty work restrictions. The court disagreed, noting in the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) that unpaid leave can be a reasonable accommodation when the disability is temporary, and a leave of absence could enable the employee to recover and return to work.

Workers Compensation
Significant decision for public employers - IDL does not count as compensation under workers comp - California

In Department of Corrections and Rehabilitation v. Workers' Compensation Appeals Board (Ayala), the state Supreme Court has clarified that Industrial Disability Leave (IDL) benefits paid do not qualify as "compensation" under the Workers Compensation Act. IDL is a salary continuation program offered to public employees, primarily for state workers, where they receive a portion of their pay instead of Workers' Compensation Temporary Disability benefits if they suffer a work-related injury or illness.

A workers compensation judge found that the Department of Corrections and Rehabilitation failed to take appropriate safety measures to respond to a specific and credible threat of inmate violence. This constituted serious and willful misconduct, which increases the comp award by 50 percent. The judge awarded the 50 percent increase, but said it applied only to the amount of the temporary disability benefits, not the full value of the IDL benefits.

While the WCAB reversed and applied the full value, an appeals court found, and the Supreme Court affirmed, that Section 4553 does not apply to industrial disability leave benefits.

Appeals court vacates award for attendant care services by husband - Florida

In Girardin v. AN Fort Myers Imports LLC, a sales associate fractured her left foot in her employer's parking lot and suffered complex regional pain syndrome. A Judge of Compensation Claims (JCC) awarded compensation for 30 hours/week for her husband's attendant care services. The Court of Appeals vacated the award, noting the husband's services mainly were household duties and other services normally and gratuitously provided by family members.

The court noted that some of the care, such as carrying his wife upstairs, bathing her, and transporting her to medical visits may be compensable as nonprofessional attendant care. However, the JCC did not take steps to ensure that compensation was only for these services.

Refusal to return to work does not have to correlate to work injury - Georgia

In Taylor v. Argos USA, a long-term truck driver suffered injuries in a traffic accident in September 2019 and accepted a light-duty position at a non-profit until it closed during the pandemic. Through his attorney, the company offered a light-duty position, but his attorney replied that the driver "has to shelter in place" because his diabetes, age, and ethnicity put him at high risk for COVID-19 complications.

The driver was fired for job abandonment but said his attorney had not presented the light-duty position to him nor had discussed his concerns about COVID-19. The Appellate Division of the State Board of Workers' Compensation found the driver was not justified in refusing the light-duty job offer and not entitled to temporary total disability benefits after he was terminated because he was fired for cause and other reasons unrelated to his injury. "His individual health and safety concerns during the pandemic were personal to [him] and unrelated to his compensable work injury."

The Court of Appeals said the Board erred; the refusal to work does not have to relate to the workplace injury. Under the Official Code of Georgia Annotated Section 34-9-240, a refusal is justified if it relates to the physical capacity (health concerns) or ability of the employee to perform the job or factors such as geographic relocation or travel conditions that would disrupt the employee's life.

Pain may be sufficient for compensation in repetitive trauma claim - Illinois

In Tazewell County v. Illinois Workers' Compensation Commission (Potts), a dental hygienist was diagnosed with acute pain in the left shoulder, left rotator cuff tendonitis, severe rotator cuff tendinosis and other injuries, and she claimed a repetitive trauma injury to her left shoulder resulting from 14 years of work. The case revolved around determining if repetitive work activity that results solely in pain and not a worsening of the underlying condition from a preexisting, non-work-related condition is compensable.

The appellate court found that the subjective complaint of pain was sufficient evidence to determine that the repetitive trauma claim was compensable. One judge dissented, writing that there was "no evidence" proving that employment aggravated the preexisting condition.

Black Lung Benefits Act does not require total disability arising from a chronic pulmonary condition - Illinois

In Consolidation Coal Company v OWCP, the Court of Appeals for the Seventh Circuit affirmed an ALJ's award of benefits to a coal miner's widow under the presumption of occupational pneumoconiosis. While the company argued that the 15-year presumption should only apply to chronic pulmonary conditions, not acute illnesses like respiratory failure, the court disagreed. It found the widow qualified for a statutory presumption that her husband died from black lung disease because of his extensive underground mining work and total disability at the time of his death. It held that the Black Lung Benefits Act does not require proof that a miner's total disability arose from a chronic pulmonary condition to invoke the 15-year presumption.

Exclusive remedy bars widow's suit for fatal workplace shooting - New York

In Hamer v. FPG America, LLC., a funeral home directed the general manager to fire one of its employees. Despite expressed concerns about the employee's history of threatening coworkers and intoxication at work, the GM fired him. The fired employee then followed the GM to another of the company's locations and fatally shot him.

The widow received workers comp death benefits and filed a wrongful death suit. She argued the company was negligent and careless because it failed to implement safety and security precautions at its facility. The court found that her only legal remedy against the company was workers comp. While an employee or surviving spouse might be able to argue that the exclusive remedy provisions of comp do not apply if the company engaged in an intentional tort, the widow provided no evidence that the company acted intentionally.

Stress-related stroke not compensable - New York

In Tudor v. Whitehall Central School District, a telecommuting teacher suffered a stroke and claimed it was caused by work stress in a confrontational phone call with her boss. While a physician testified that the stroke "...was caused by the excessive stress and emotional trauma she has had to endure while working for the (employer)," the physician also acknowledged multiple other risk factors for a stroke, including longstanding hypertension, hyperlipidemia and diabetes, as well as a history of pack-a-day cigarette usage.

In affirming earlier rulings that denied her workers compensation benefits, the appeals court found that she did not prove "that the stress that caused the claimed psychological injury was greater than that which other similarly situated workers experienced in the normal work environment."

Family of police officer receives comp death benefits even though officer was not working when he was murdered - North Carolina

In NC Industrial Commission vs Torres, the family of a Raleigh police officer will receive workers' compensation survivor benefits, even though he was not officially at work when he was killed. The officer was leaving for work when he heard gunshots at a neighbor's house and stopped to investigate. A 15-year-old fatally shot the police officer and four others in the neighborhood.

His wife filed a work comp claim, which the city denied because he was not in the course and scope of his employment. However, the Industrial Commission ruled in the family's favor, noting he was responding to the sound of active gunfire, an apparent violation of the law.

School employee kicked 25 times denied workers comp - Virginia

In Theodore Greene v. Loudoun County Public Schools, a behavior assistant suffered injuries in both knees after being kicked 25 times over 11 days.His doctor diagnosed "prepatellar bursitis both knees" due to "kicked in both knees repeatedly by student." The Workers' Compensation Commission (WCC) upheld a deputy commissioner's denial of benefits because the assistant did not suffer a sudden, structural bodily change due to an identifiable incident. Under the state's workers compensation law, an injury resulting from cumulative trauma, which did not stem from an identifiable incident, is not compensable as a workplace injury.

Wage loss benefits can continue despite limited job searches - Virginia

In Mark Shumate v. Moog Inc., a sixty-year-old senior maintenance technician was injured when moving pallets and received temporary total disability benefits. He returned to light duty work but was eventually laid off. Then the company questioned if he was looking hard enough for another job, which is necessary to continue wage loss benefits. He claimed to have no computer skills, did not search online or use the newspaper, and only contacted five potential employers a week, and none had job openings.

However, a deputy commissioner and three-member panel of the Workers Compensation Commission found that the worker was sincere, made a good faith effort, and took a reasonable approach to job hunting."In the end, Mr. Shumate's job search was neither perfect nor even successful, but it was reasonable - a consistent, good-faith effort to find suitable work."