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ADAAA does not apply retroactively

Since the Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009, federal court decisions have declined to apply the ADAAA retroactively.

In a recent case, Reynolds v. American National Red Cross, 4th Cir., Nos. 11-2278, 11-2280, the Fourth Circuit U.S. Court of Appeals unanimously affirmed a federal court's dismissal of an employee's claims of ADA discrimination and retaliation for his firing after hurting his back and neck on the job. The court considered whether the plaintiff was "disabled" under the ADA, and ultimately determined he failed to show that his alleged injuries rose to the level of a disability as a matter of law.

The Circuit Court did not address the matter of whether the local chapter of the Red Cross that employed fewer than 15 employees, the threshold for ADA coverage, was subject to ADA compliance. Earlier, the District Court held the chapter was an employer for ADA purposes because even though it employed fewer than 15 people, it was an "agent" of the national American Red Cross.

DOL issues guidance on "caring for an adult child"

The DOL has issued administrative guidance, a fact sheet and Q & A regarding the care of an adult child under the FMLA.

Overall, the rulings do not set a new direction, but clarify the DOL position. The guidance addresses three issues:

  1. The age of the child at the onset of the disability: confirmed that the age of the child at the onset of the disability is irrelevant to the determination.
  2. The impact of the ADA Amendments Act of 2008 on the interpretation of "disability" under the FMLA: endorsed the expanded definition of "disability" under the ADAAA and noted this will impact an employee's ability to take FMLA leave to care for an adult child.
  3. The availability of FMLA leave for parents to care for an adult child who becomes disabled during military service: may be allowed to take more leave than the 26 workweeks provided for under the FMLA.

FedEx not liable under FMLA for terminating employee who filed false reports

When terminated for falsifying delivery records following her return from leave under the FMLA, a former mail courier sued FedEx., Laing v. Fed. Express Corp. After injuring her knee on the job, the employee notified FedEx that she planned to schedule surgery. Before she applied for FMLA leave, FedEx was suspicious that she falsified her delivery reports to her advantage, which was a terminable offense. While FedEx's investigation was pending, she applied for and was granted FMLA leave for surgery.

When discussing the leave with her manager, the manager said, "Well, we'll do our best to keep your job open for you." When she asserted that he had to keep her job open for her under FMLA, the Operations Manager responded, "That's not necessarily the case. You don't know how it works." The Fourth Circuit Court of Appeals found that the manager's statements were an accurate explanation of the FMLA, and declined to find any discriminatory animus.

When she returned to work, FedEx immediately suspended her with pay for almost a month before terminating her. Emphasizing that the FMLA did not afford an absolute right to restoration, the Court concluded that the FMLA did not preclude FedEx from placing her on suspension if it would have done the same had she not taken leave at all.

Workers' Compensation
Worker's gastric bypass surgery not compensable - Iowa

An overweight worker slipped and fell at work and sought treatment for lower back and leg pain. When her condition did not improve, she underwent gastric bypass surgery and lost more than 200 pounds. After surgery, her pain improved, but she had to take a larger dose of narcotic pain medication due to a malabsorption condition caused by the surgery and she remained out of work.

She sought an increase in compensation and reimbursement for the gastric bypass surgery. In Verizon Business Network Services, Inc. v. McKenzie, the Iowa Court of Appeals held that the worker was not entitled to reimbursement for her surgery. The court found that the surgery, which corrected her non work-related morbid obesity, did not provide a more favorable medical outcome for the work injury than would likely have been achieved by the care offered by the employer.

Illegal immigrant entitled to Workers' Compensation - Nebraska

An illegal immigrant from Mexico who had purchased false documents and used a fictitious name to find a job was run over by a forklift on the job at Omaha's Quality Pork International packinghouse. The case went to the Nebraska Supreme Court and the court held, for the first time, that state Workers' Compensation laws protect illegal immigrants.

This followed other courts across the country that have reasoned excluding illegal workers from disability benefits creates a financial incentive to hire illegal immigrants because it allows an employer to escape liability for worker injuries, giving that employer an unfair advantage over competitors who follow the law.

Quality Pork argued against disability benefits citing a 2005 Nebraska Supreme Court ruling that undocumented workers are not entitled to vocational benefits because they are not legally employable in the United States.

In this case, Moyera v. Quality Pork International, the Supreme Court noted that although closely related, vocational benefits and permanent total disability benefits differ. Whereas vocational services are intended to help a worker move into a new job (which he would be ineligible for because of immigration status), disability benefits are awarded when a worker can no longer work in the United States or elsewhere. The total cost to the company for the injury is estimated at more than $2 million.

Serious injuries caused by employee's attempt "to ride" escalator rail at annual sales meeting found compensable - North Carolina

In Evans v. Hendrick Automotive Group, a North Carolina appellate court recently affirmed a decision by the state's Industrial Commission that awarded extensive Workers' Compensation benefits to an office manager who fell some 25 to 30 feet to a hard surface while trying "to ride" the railing of an escalator following a "festive" gathering for dinner and drinks associated with the employer's annual sales meeting. The employer had provided alcoholic drinks before dinner, had served wine during the dinner, and paid for drinks in the bar following dinner.

The employee worked in Texas and was staying at a hotel for the four-day meeting. When returning to the hotel with a group of employees, the manager climbed onto the escalator railing and attempted to ride it down to the next floor, but fell and sustained serious injuries. A blood alcohol test at the hospital revealed that her blood alcohol level was "sufficient to cause a lack of inhibitory control that contributed to the accident." The employer contended the injury was the result of a deviation from the employment and/or that the injury did not arise out of and in the course of the employment, but the appellate court, following earlier precedent, held that the claim fell within the "well-established" rule set "that a traveling employee will be compensated under the Workers' Compensation Act for injuries received while returning to his [or her] hotel...."

Workers' Comp benefits allowed for victim of hostage situation - Ohio

An Ohio hospital employee who was held hostage at work could receive Workers' Compensation benefits for her post-traumatic stress disorder (PTSD) resulting from the standoff, an Ohio appellate court has ruled. The employee had been held hostage for 25 minutes and threatened by a prison inmate who was being treated at the hospital. The hospital argued that the PTSD should not be covered, contending that it was not directly caused by her physical injuries. Although conceding the physical injury was not the sole proximate cause, the court found it to be a proximate cause of her PTSD and said that Ohio case law allows Workers' Comp claimants to receive benefits for mental conditions that happen concurrently with physical injuries.

Utilization Review (UR) results in denial of heavy pain medications - Pennsylvania

In Bedford Somerset MHMR v. Workers Compensation Appeal Board, the injured worker was hurt in 1987 and underwent two surgeries on her lumbar spine as a result of her work injury. She was left with several diagnoses, including arachnoiditis, failed spinal fusion surgery, small fiber neuropathy, chronic pain syndrome, discitis, osteomyelitis and spinal stenosis, for which she was taking heavy medication, including Fentanyl lozenges to relieve the pain.

The insurance carrier filed a UR, alleging the mediations were not reasonable and necessary. The insurance carrier presented testimony from a doctor who performed an Independent Medical Examination (IME), noting that the use of Fentanyl lozenges was intended just for cancer and AIDS patients, and should not be used in a chronic pain setting, as the patient would simply build up a tolerance to the already-strong medication. The UR reviewer issued a determination finding that Fentanyl patches, and periodic office visits to the prescribing physician, were reasonable and necessary, but that the use of Fentanyl lozenges were not.

The case made its way to the Commonwealth Court of Pennsylvania. The court noted that risk to the patient is relevant to determine whether medication is reasonable and necessary and agreed that the Fentanyl lozenges were unreasonable and unnecessary because of their use being limited to cancer patients, given their highly addictive nature.

Truck driver granted "physical/mental" claim as a result of suicidal third party's erratic driving - Pennsylvania

A truck driver who sustained minor physical injuries in a vehicular accident that appeared to have been purposely caused by a suicidal driver, successfully established a "physical/mental" claim, held the Commonwealth Court. While the claimant tried to avoid a head-on collision, the other driver veered in his path and was killed and the crash disabled the claimant's loaded tractor-trailer causing it to descend an embankment.

In a physical/mental claim, a claimant must prove that a physical stimulus resulted in a mental disability, not that he or she suffered a physical disability that caused a mental disability, or the physical injury continues during the life of the psychic disability. New Enterprise Stone & Lime Co., Inc. v. Workers' Comp

Employers' subrogation rights do not include future medical benefits - Tennessee

An employee of a staffing agency, MasterStaff, Inc., was assigned to work at ProLogistics, Inc. While using a towmotor to move pallets off a truck trailer, an employer of ProLogistics moved the truck, causing the towmotor to fall and seriously injuring the staffing agency's employee.

The employee sought Workers' Compensation benefits from MasterStaff and also filed a negligence claim against ProLogistics. MasterStaff intervened in the negligence action, seeking to recover nearly $45,000 in paid medical expenses as well as future medical expenses.

The Supreme Court noted that Tennessee Workers' Comp law does not have a time limit for medical benefits. As such, the majority opinion says, subrogation liens for future medical expenses would burden injured workers, because settlement "proceeds would be held hostage for an indefinite period to reimburse the employer when the employee sought medical benefits in the future."