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Little doubt that the expanded definition of disability leads to more claims of disability

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has reinvigorated the ADA, and the proof is in recent U.S. Equal Employment Opportunity Commission (EEOC) statistics. Total EEOC settlement amounts increased significantly among people with mental disabilities as well as physical disabilities.

Poor performance: chicken or egg?

Can an employer deny a requested accommodation because of an employee's poor performance, which is caused by a disability? In a recent court case, the Federal Reserve Bank of New York denied an employee's request to telecommute or to relocate his office to a different Fed building because the employee had been rated as "below standard." The employee had been trapped in his office on 9/11 and when his department moved to the building that overlooks Ground Zero he became anxious and depressed to the point that he had suicidal thoughts. During that period, he received his first substandard ratings.

The court denied the employer's motion to dismiss the plaintiff's claim, stating, "This explanation is troubling, since denial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rational for the ADA's rule of reasonable accommodation on its head." Goonan v. Federal Reserve Bank of New York, (S.D.N.Y. January 7, 2013).

New poster deadline March 8

The U.S. Department of Labor has issued uncontroversial regulation changes to the Family and Medical Leave Act relating to military caregiver leave for veterans, qualifying exigency leave for parental care, and job-protected leave for airline personnel and flight crews that takes effect March 8.

As a result, employers with 50 or more workers are required to post an updated poster that depicts the changes no later than March 8.

For more information on the new regulations, visit

American Bar Association (ABA) Summary of 2012 cases available

The American Bar Association's Federal Labor Standards Legislation Committee has published its annual comprehensive report that covers virtually all-significant FMLA cases.

Side job does not prevent FMLA claim

In the California case, Richie v. AutoNation, the court ruled in favor of an employee who violated his company's leave policy prohibiting outside employment during leave. The court ruled that FMLA/CFRA (the California equivalent) has a process to follow if it is believed that an employee no longer qualifies for leave and that the employer did not adhere to the process. Furthermore, an employee working for a second employer does not mean that he or she is not incapacitated from working in his or her current job and an employer's policy on secondary employment during FMLA leave must be the same as that for employees who are not on FMLA leave. Otherwise, the policy itself violates the law.

Workers' Compensation
Lawyer may not recover attorney fees from medical provider under common fund doctrine - Nebraska

Under the "common fund doctrine," a party who incurs costs in creating a common fund that benefits others may call on them to share those costs. The Supreme Court of Nebraska recently considered whether a law firm that secured Workers' Compensation benefits on behalf of an injured worker, including medical expenses in the amount of $33,011.20 owed to a surgical firm, could take action against the surgical firm under the common fund doctrine. A trial court earlier had dismissed the law firm's action and the high court affirmed. The court indicated that the last sentence of Neb. Rev. Stat. 48-125(2)(a) plainly stated that attorney fees could not be deducted from any amount ordered to be paid for medical services, nor could medical providers be charged for attorney fees.

No death benefit for scientist's widow - New York

The appellate division has ruled the state Workers' Compensation Board was justified in denying death benefits to the widow of a State Police forensics scientist who falsified data in dozens of criminal cases before committing suicide in 2008. His widow, who submitted a claim for death benefits, argued her spouse's death was a result of depression caused by improper actions taken by State Police during the investigation. The Board determined the scientist experienced "normal workplace levels of stress" before taking his life and the appellate division concurred.

Obesity, diabetes not pre-existing conditions that allow for benefits - New York

An appellate court recently ruled that an injured worker's diabetes and obesity are not pre-existing conditions that would allow the self-insured Schenectady Community Action Program Inc. reimbursement from New York's Special Disability Fund for an injured employee's Workers' Compensation benefits.

The long-term employee, who had a history of controlled diabetes and obesity, sustained back and shoulder injuries while assisting students exiting a bus. The court ruled the employee's diabetes and obesity did not hinder her ability to perform her job.

Wal-Mart protected by exclusivity in wrongful death suit - North Carolina

The estate of a Wal-Mart store greeter who died after a loss-control employee and an alleged shoplifter collided with her cannot sue the giant retailer for wrongful death. While the plaintiff claimed a goal or "quota" system that required a loss prevention employee to make eight apprehensions per month may have led, at least indirectly, to the death, the court observed that the employer had implemented a written policy requiring all loss prevention employees to never to chase a shoplifter more than ten feet and never to engage in a physical confrontation with a customer or shoplifter. The stated purpose of the policy was to ensure the safety of all persons on the employer's premises and after the incident, the employee was terminated for violating the no-chase policy. The court held that the allegations of the plaintiff failed to show that the employer had engaged in the requisite level of intentionality to support a tort claim.

Worker fails to link leukemia with work-related benzene exposure - North Carolina

One week after a worker left his employment with a company that manufactured a product designed to protect airport runways, he was diagnosed with leukemia. He claimed that his exposure to benzene caused or significantly contributed to the development of his disease. The components of the product did not list benzene and the employee smoked and was exposed to second hand smoke. The worker also sued two of his previous employers, alleging that his exposure to gasoline and toluene caused him to develop leukemia.

Based on physician testimony, the North Carolina Court of Appeals held that he was not entitled to benefits. To prove the existence of an occupational disease, a worker must show a causal connection between the disease and the employment.

No right to add new injury after C&R approval - Pennsylvania

In DePue v. Workers' Compensation Appeal Board the injured worker settled the wage loss part of his case in a Compromise & Release Agreement (C & R). The agreement related to injuries of a severe closed head injury with seizure disorder and short-term memory loss. Later, the employee filed a Petition for Penalties, because the Workers' Compensation insurance carrier refused to pay for medical treatment to the left shoulder (it had been paying for such treatment for years), and a Petition to Review, to add the left shoulder as an accepted injury. The Court found written memos between the parties, agreeing that the left shoulder was not included in the C & R.

The court ruled, "When a claimant does not expressly reserve in a Compromise & Release Agreement the right to add a new injury to the description of work injuries, he is precluded from adding the work injuries more than two years after the approval of the C&R. The employer's voluntary payment of medical expenses is not an admission of its liability and cannot be construed as a promise to continue to make such payments."

Return to part-time work results in suspension of undocumented worker benefits - Pennsylvania

What a Workers' Comp insurance carrier must prove to stop benefits to undocumented workers was examined recently in the matter of Ortiz v. Workers' Compensation Appeal Board. Since the employer of an injured worker who fell from a ladder and fractured his leg and ankle had no Workers' Comp insurance, the injured worker filed a Claim Petition against the Uninsured Employers' Guaranty Fund (UEGF).

During the litigation before the Workers' Compensation Judge (WCJ), the injured worker went back to work on a part-time basis. The WCJ granted the Claim Petition and awarded ongoing Workers' Comp benefits, based on the injured worker's earnings.

Subsequently, the UEGF filed a Petition for Suspension, alleging that the injured worker was not legally able to work in this Country, and was capable of some employment, making him ineligible for continued PA Workers' Compensation benefits. According to the Commonwealth Court, a suspension of benefits is proper when a Claimant's loss of earning power is caused by his status as an unauthorized alien and not his work injury.

Temporary employee entitled to maximum benefits - Tennessee

A staffing agency employee, who developed severe carpal tunnel syndrome in his right hand after three weeks on a temporary job, underwent surgery and was released to return to work with no restrictions, and assigned a 4% permanent medical impairment rating. As a result of the injury, the temporary assignment was ended and the staffing agency terminated the injured employee as part of its standard business practice.

The employee went on to work as a security guard at an ammunition manufacturing firm. Under Tennessee law, workers whose employers return them to a wage less than what they earned at the time of injury are eligible for maximum benefits of up to six times their medical impairment rating. In Timmy Dale Britt v. Dyer's Employment Agency, the Tennessee Supreme Court unanimously reversed a decision of the Special Workers' Compensation Appeals Panel that held the staffing agency could not be faulted for the employer's termination of the temporary employee. According to the Supreme Court, "The relevant inquiry is whether the pre-injury employer returned the injured employee to work at a wage equal to or greater than the pre-injury wage." Tennessee Workers' Comp law does not distinguish between temporary and permanent employees.

Appellate Court refuses to adopt the Substantially Certain Rule related to intentional torts - Tennessee

In Rodgers v. GCA Servs. Group, Inc the requirement that janitorial employees work for extended periods of time in close proximity to mold, mildew and other hazardous conditions after the discovery of standing water, mildew, mold and other potential contaminants was not sufficient to open the employer to intentional tort liability, held a Tennessee appellate court recently. Acknowledging that a number of other jurisdictions had adopted the "substantially certain" exception to intentionality, the Tennessee court indicated that prior court decisions within the state had refused to do so.

Workers' Compensation exclusive remedy for custodian who suffered emotional distress after cleaning up student's suicide - Washington

Workers' Compensation is the exclusive remedy for a school custodian who sued for emotional distress after she cleaned up the scene of a student's suicide, a Washington appellate court ruled. The custodian recognized the victim and also picked up a book bag containing a bomb that was detonated by a bomb squad, cleaned up the memorials to the student and was distressed by the crying of students in grief counseling sessions.

The custodian sued the school district and the superintendent in May 2007, claiming intentional and negligent infliction of emotional distress. After a series of appeals, a trial court found and the Court of Appeals agreed, that Workers' Comp was the exclusive remedy. The court concluded that one traumatic event rather than several caused the PTSD, which classified her condition as an industrial accident under Washington's Industrial Insurance Act.