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ADA
Essential function dispute evolves around type of transmission

An employee drove an excavator, which had an automatic transmission. He also moved the excavator from one jobsite to another by hauling it on a trailer behind a semi-truck, which had a manual transmission. The employee was injured in a motorcycle accident and had his leg amputated. When he attempted to return to work, his employer terminated him because he was unable to drive the semi-truck to transport the excavator, which the employer considered to be an essential function of the position.

The Sixth Circuit Court of Appeals reversed the district court's decision that driving the semi-truck was an essential function of the excavator's job and held that a jury should decide. According to the court, transporting the excavator was not on the excavator's job description but was on that of the truck/tractor position; the excavator's job description did not list driving a manual transmission vehicle as an essential function; since the excavator remained at the work site "90% of the time," hauling it was a "marginal time investment" for the excavator operator; and the employer's reference in the job description to "other duties as assigned" was not sufficient to establish that it was an essential function.

Henschel v. Claire County Road Commission



Workers' Compensation
Mexican company must repay Workers' Compensation benefits - Arizona

A Mexican citizen and resident worked for a Mexican transportation company, Porteadores del Noroeste S.A. de C.V., and was injured in a rollover accident in Arizona. The employee received disability benefits from Mexico's social security agency, but not all his medical bills were paid.

Since the company did not have Workers' Compensation coverage, the employee received payment from the Industrial Commission of Arizona's special fund for his medical treatment. The Commission then sought to recover its costs from Porteadores. The attorneys for the company argued that the North American Free Trade Agreement (NAFTA) controlled its activities in the U.S. and the commission lacked jurisdiction. However, the appellate court upheld the award, noting only the U.S. government can challenge potential state law conflicts with NAFTA.



$65,000 increase in Workers' Comp premium justified by potential contractor claims - Connecticut

A Connecticut appellate court ruled that a health care contracting firm, Compassionate Care, Inc., is responsible for $66,000 in premium costs, rather than the $1,000 they expected to pay. Compassionate Care Inc. refers "health care professionals," including nurses and nurse's assistants, to provide services to private individuals and organizations such as nursing homes. Providers can accept or reject assignments from Compassionate Care, are free to work with other agencies, and are treated as independent contractors.

Several insurers had denied the application for coverage, concerned about the risk exposure of the health care providers, so the company applied through the residual market and received a policy from Travelers, with an estimated premium of $1,031 based on the clerical staff headcount.

The policy contained a provision that allowed an audit of Compassionate Care's records "to determine final premium," and Travelers requested proof that the health care providers carried Workers' Comp coverage for themselves. When that was not provided, Travelers determined that the health care providers were considered employees under Connecticut's Workers' Comp law and increased the premium bill to $66,353. When the bill was not paid, the coverage was cancelled. Compassionate Care sued, alleging that Travelers acted in bad faith, and Travelers countersued alleging breach of contract.

While the appellate court found that the health care providers were independent contractors, it ordered Compassionate Care to pay the higher premium because the health care providers were "part of its (Travelers) exposure to risks entailed in insuring."



Risk of injury on stairway greater than public exposure results in award of benefits - Illinois

An Illinois appellate court recently awarded Workers' Compensation benefits to a Community Service Officer who sustained injuries to his right knee and back when his knee "gave out" while he traversed a stairway in the police station where he worked. Generally, falling while traversing stairs is a neutral risk, and such injuries are not considered to arise out of the employment. The court noted an exception, however, where the requirements of employment created a greater risk than that to which the general public was exposed. Since the employee had to climb and descend the stairs at least six times each day, there was sufficient evidence that there was a risk of injury greater than that to which the general public was exposed.



Injury must arise out of employment and in the course of employment - Minnesota

In Dykhoff v. Xcel Energy, an employee was injured after falling in a hallway at work. There was no explanation for the fall, and there was nothing unusual about the floor. While the Workers' Compensation Court of Appeals (WCCA) adopted a "work-connection" test, concluding that injuries occurring at work would be compensable regardless of whether an employee's job duties placed that employee at an increased risk of injury beyond what is experienced in non-work life, the Minnesota Supreme Court reversed the WCCA and emphatically rejected the "work-connection" test and "positional risk" test.

The Court concluded that the "increased risk" test was the proper test for determining if injuries that occur at work are compensable. According to the Court, an injured worker must demonstrate that there was an increased risk of injury beyond what would be experienced in non-work life. The Court unequivocally rejected the longstanding balancing test used to establish a causal connection between employment and an injury and ruled an injured worker must prove that an injury both arose out of employment and in the course of employment.



Medical treatment must be provided while claim is investigated - Missouri

An employer has an obligation to provide medical treatment for a work-related injury when it received a request for care even if the employer has not finished its investigation, according to the recent court of appeals case, Downing v. McDonald's Sirloin Stockade.

This case involved a waitress who had back pain and the carrier would not authorize surgery because the carrier wanted more time to investigate the claim. The employer authorized her to have an MRI and see a surgeon but declined to authorize surgery in order to further investigate the claim. The doctor recommended surgery and although she was told it would be denied pending investigation, she proceeded with surgery immediately resulting in two operations.

The court of appeals rejected the employer's appeal that the employee had to prove authorization or a need for emergency treatment. Unlike other cases, the employee sought treatment from a physician selected by the employer and provided notice of her intention to proceed with immediate treatment.



Pulmonary condition result of exposure to potato chip seasoning is compensable - New York

A New York appellate court recently affirmed a finding by the state's Workers' Compensation Board awarding benefits to a worker who claimed he suffered from an occupational disease or condition in the form of chronic hypersensitivity pneumonitis, caused by 12 years of work-related exposure to chemicals and seasonings at the employer's plant that produced corn, potato and grain-based snacks. The Board relied on the medical evidence from the worker's physician, who testified with a reasonable degree of medical certainty that the "most probable cause" of the pulmonary condition was his prolonged workplace exposure to chemicals and seasonings, and that failure to identify the specific allergen or contaminant responsible did not prevent the claim.



Maintenance worker denied increase in benefits because failure to provide welding shields was not willful violation - North Carolina

A North Carolina appellate court recently affirmed a decision by the state's Industrial Commission denying an injured employee's claim for a ten percent compensation increase, due to the alleged willful failure of his employer to "ensure that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards from, among other things, potentially injurious light radiation." The employee was a maintenance worker, not a welder, but he worked in an area for 2 years where welding was done. He developed a relatively rare condition, welder's arc retinopathy, a condition caused by exposure to intense welding light. Although welders were supplied with standard safety glasses, tinted sunglasses for outdoor use, and welding shields for welding, he was not given any shields, as he was not a welder. The appellate court held that under these circumstances the employer did not deliberately avoid its obligation to provide the employee with appropriate eye protection.



Caregiver mother injured by son due Workers' Compensation - Pennsylvania

Reversing a decision by the state's Workers' Compensation appeals board, the Commonwealth Court recently held that a woman employed under a state-funded program to provide full-time attendant care services at her residence for her adult son, who attacked her with a knife while she slept, may receive Workers' Compensation benefits for her injuries. The son, who needed care because his leg had been amputated, had previously suffered from drug dependency.

The benefit question evolved around whether she was in the course of employment while sleeping. The court found that even though she was not actively working for her son when she was attacked, the nature of her job required her to be on the premises of her home. Her son was charged with attempted murder and aggravated assault and is serving a sentence of 12 to 25 years in state prison.



Teacher awarded limited benefits for school-related stress - Pennsylvania

A teacher who suffered heart palpitations, headaches, dizziness, nausea, injury to her vocal cord, and aggravation of her her pre-existing lupus, while working in a stressful elementary school classroom filed a Workers' Comp claim in March 2009. In June, the school district reassigned her to another school that did not have behavioral issues, but she did not report to work in September because she was still undergoing treatment for job-related stress.

After a series of appeals, the Commonwealth Court affirmed the benefit award, but reversed a portion of the earlier decision that would have allowed her to receive ongoing benefits and granted benefits only up to September when she could have begun working at the less stressful school.



Compensation paid to independent contractors should be considered in computing comp premiums - Tennessee

In Continental Cas. Co. v. Theraco, Inc., there are many similarities to the Connecticut case described above. Theraco had contracts with licensed physical therapists (PTs) and contracted with home health agencies to provide physical therapy sessions to homebound patients. The PTs were considered independent contractors and the staff included two officers and two clerical workers. CNA and Travelers provided Workers' Compensation coverage between 2004 and 2009. Both policies created two categories of individuals for whom Theraco would be charged premiums: (1) "[a]ll your officers and employees engaged in work covered by this policy" (the "Employee Provision"); and (2) "[a]ll other persons engaged in work that could make us liable under Part One (Workers' Compensation Insurance) of this policy" (the "Risk of Loss Provision").

The carriers contended that Theraco owed premiums based on the earnings of the PTs, since any of them might file a Workers' Compensation claims that would have to be defended by the carriers. Noting the Risk of Loss Provision, a Tennessee appellate court overruled lower court decisions that had favored Theraco. The appellate court reasoned the possibility the PTs might file Workers' Comp claims that would have to be defended by the carrier, not the likelihood of the claims' success, was the controlling factor. The additional premiums were owed the carrier.