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Employer did not violate FMLA, Worker's Comp laws in firing injured employee

An employer did not violate the Family and Medical Leave Act (FMLA) or Workers' Compensation laws when it fired an injured employee who was out on leave, ruled the 10th U.S. Circuit Court of Appeals.

In Peterson vs. Exide Technologies, a material handler suffered head injuries in 2007 after he drove a forklift into a pole, and the company placed him on a 10-day FMLA leave. Exide fired the employee four days after his accident because the accident investigation revealed violations of company safety policies and the employee had a long record of well-documented safety violations.

He sued the company claiming retaliation in violation of federal FMLA laws and illegal firing under Kansas Workers' Comp laws. In a unanimous ruling, the appeals court said Exide provided sufficient evidence-including previous performance reviews and warnings-that the firing was for a history of safety errors, rather than retaliation for his work injury and FMLA claims.

Supreme Court rules state employees cannot sue under "self-care" provision of FMLA

The U.S. Supreme Court limited the reach of the FMLA on March 20, 2012, ruling that a Maryland state employee's FMLA claim for damages against the state was barred by sovereign immunity. This decision only affects employees of the states and their subdivisions under the "self-care" provision of the FMLA; other forms of FMLA leave (e.g., caring for a family member), however, still remain protected.

Workers' Compensation
Woman gets Workers' Comp for sex injury on trip

It's not often that a Workers' Comp case goes viral, but a recent court decision in Australia lit up the Internet. A female civil servant initially was denied Workers' Comp for facial and psychological injuries she suffered when a glass light fitting fell from the wall above her bed as she was having sex with a male partner. Upon appeal, the judge sided with her, ruling that she was required to travel by her employer, and was injured during her "course of employment."

In a written statement, Judge John Nicholas said, ''If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity."

While this is an extreme example, it illustrates the perplexities and unpredictable interpretations of "in the course and scope of employment."

Migraines caused by psychological injury not compensable - California

The California Court of Appeal held that a technician was not entitled to benefits for migraines resulting from stress caused by friction with his supervisor. The court held that the technician's psychiatric injuries were caused by lawful, nondiscriminatory, good faith personnel actions and that the migraines were not separate from the psychiatric injuries so that any resulting disability was not compensable.

Workers' Comp benefits can be offset by pension - Maine

Verizon Communications Inc. has the right to "offset" a permanently disabled employee's Workers' Compensation benefits by the amount of pension he receives, the Maine Supreme Court has ruled. As specified under Maine law, an employee who lost a leg and an arm in a work-related stroke had received 800 weeks of permanent total incapacity benefits, which ended in 2010.

Verizon then filed a petition to determine whether it is entitled to "offset rights" for the pension it has been paying. The Maine Supreme Court upheld a hearing officer's finding that Verizon was entitled to the offset, but limited it to after the 800-week period was concluded.

Complete loss of earning power leads to permanent total disability benefits award - Nebraska

A tracker-trailer driver suffered serious physical and psychological problems as a result of a work-related accident. Although the medical testimony was inconclusive as to whether he suffered a permanent impairment, it supported a conclusion that he sustained a permanent disability to the whole measured as a 100 percent loss of earning power.

A court-appointed vocational rehabilitation counselor opined that his occupational loss was due to his personality changes after the injury, physical limitations, and his need to work alone. The employer did not submit a rebuttal.

Middle-school principal shot on way to work due Workers' Comp - North Carolina

A middle-school principal who was shot while talking on an employer-provided cell phone during his commute to work is entitled to Workers' Compensation benefits, North Carolina's Court of Appeals has ruled.

As a result of the shooting, the principal underwent multiple procedures and plastic surgeries for injuries to his face, mouth, teeth and right hand. Police were unable to determine who shot him and he filed a Workers' Comp claim in 2009, which was denied by his employer because the accident "did not arise out of and in the course and scope of employment."

When the matter was appealed the decision was overturned and ultimately the North Carolina Court of Appeals held that the injuries were work related. The court noted that school principals were required to be on call 24 hours a day, seven days a week, and that the conversation was an allowable use of the cell phone to conduct school business. In addition, the appeals court found that a "coming and going" rule that normally bars compensation for accidents while commuting did not apply because the principal used a travel allowance to cover expenses for commuting to and from school.

Injured worker's depression not compensable because she did not return to work - Ohio

An employee who suffered a lumbar sprain and other injuries at her job in September 2004 never returned to work. After reaching maximum medical improvement in 2006, she sought to regain TTD benefits because she suffered from severe depression. While conflicting medical testimony was presented about the severity of her depression, two medical experts indicated she was capable of sedentary work.

The Industrial Commission and the Court of Appeals ruled she did not qualify for TTD benefits because she did not re-entered the workforce, even though she was capable of performing sedentary work. Her failure to seek other work or vocational rehabilitation was evidence of voluntarily abandoning the work force.

Former Steeler wins Workers' Comp benefits, but not attorney fees - Pennsylvania

A former Pittsburgh Steeler player, Chidi Iwuoma, received Workers' Comp benefits for a left-shoulder injury, concussion-related injuries and a left-wrist injury suffered during his time with the Steelers. The Commonwealth Court, however ruled that the team did not have to pay attorney fees because Iwuoma went on to play for other teams and therefore was not disabled.

Volunteer ski patroller's injury was not compensable - Pennsylvania

A nonpaid ski patroller's injury to his shoulder is not compensable because there was no employer-employee relationship at the time of the injury. The PA Workers' Compensation statute states that an employee performs services for another for a "valuable consideration." Although the patroller received a free season pass for skiing, 20 individual passes, and discounts on clothing and meals, the board did not believe this amounted to valuable consideration. The board also noted that "ski patrol" is not one of the enumerated volunteer occupations defined in the statute.

Petition to review in Workers' Comp must be timely - Pennsylvania

An employee who was assaulted while driving a bus, received Workers' Comp benefits for a shoulder strain. More than three years after her benefits were suspended, she filed a Petition to Review, alleging that she also suffered post-traumatic stress disorder (PTSD) as a result of her injury. While a Workers' Compensation Judge (WCJ) granted the Petition to Review this was reversed by the Workers' Compensation Appeal Board and affirmed by the Commonwealth Court based on the case of Fitzgibbons v. Workers' Compensation Appeal Board (City of Philadelphia). In this decision, the Commonwealth Court of Pennsylvania held that a Petition to Review, to expand a description of injury, must be filed within three years of the last payment of Workers' Compensation benefits.

The injured worker may still attempt to prevail on the Claim Petition.

Employer's failure to enforce general safety rules did not mean more specific rules could be ignored by employee - Virginia

An employer's failure to enforce a general rule requiring employees to read a food slicer manual and undergo training prior to operating the slicer did not negate the employer's more specific safety rule requiring employees to unplug the slicer prior to cleaning it, held a Virginia appellate court recently. Here it appeared that the employee had used the same sort of slicer in his employment with another firm and he admitted that he knew he was supposed to unplug the slicer before cleaning it. Such was sufficient evidence to support the denial of benefits by the Workers' Compensation Commission, held the appellate court.

Disregard of safety rules about breaks leads to denial of Workers' Compensation for trucker - Tennessee

The employee, an over-the-road truck driver, acknowledged that he had driven more than 36 hours without taking a required 10-hour break and that he may have fallen asleep at the wheel causing him to lose control of the truck and be injured. The employee admitted that the employer had provided him with a copy of the hours-of-service rule, that he had training on the rule, and that he was aware that his compliance with the rule was mandatory. The employer demonstrated that it carried out strict, continuous and bona fide enforcement of the policy.

While the employee argued that the employer had imposed an impossible delivery deadline, the court found the employee willfully and intentionally failed to follow the established policy and denied benefits.

Right to control determines independent contractor status - Tennessee

The Tennessee Supreme Court found that a taxicab driver who was injured in a motor vehicle accident was not entitled to benefits because he was an independent contractor. In Tennessee, the primary factor for determining a worker's status as an employee or an independent contractor is the employer's right to control the conduct of the work.

While the driver had an agreement of association with a taxi company, the company did not dictate the geographical area the driver worked nor the driver's schedule. The city controlled the permit application process and promulgated regulations. The driver owned his taxi, was responsible for its maintenance and repairs, and was required to pay for his own insurance. He had to paint his vehicle to bring it into conformity with the company's specifications. The company provided the roof light, credit card machine, radio, and a cell phone, but the driver paid a weekly fee to use the equipment. Moreover, the court found agreement and the method of payment were consistent with an independent contractor relationship.