Larson's Blogworthy Cases of the Week 8/8/2008

Each week I'll be blogging about recent, interesting workers' compensation cases.

I invite everyone to share their thoughts about these cases.

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© Copyrighted 2008 by Matthew Bender & Co., Inc., part of the LexisNexis Group. All rights reserved.

Miklosy v. Regents of the University of California, 2008 Cal. LEXIS 9370 (July 31, 2008).  Plaintiffs, two former employees, sued the University of California and others, alleging, inter alia, unlawful retaliation in violation of California's Whistleblower Protection Act, Gov. Code, § 8547 et seq. The trial court sustained the University's demurrer and dismissed the action. The California Court of Appeal, First Appellate District, Division Four, affirmed the judgment of dismissal.  Plaintiffs petitioned for review. The state supreme court concluded that Gov. Code, § 8547.10, subd. (c), precluded plaintiffs' damages action against the University because the University had timely decided plaintiffs' retaliation complaint, that a civil action against the University under § 8547.10, subd. (c) was available only when an employee had first filed a complaint with the University and the University had failed to reach a timely decision on the complaint. The legislature could reasonably have intended the University to resolve whistleblower retaliation claims by way of its own internal procedures, reserving the alternative remedy of a damages action for those instances when the University fails to complete its process in a timely manner. With respect to plaintiffs' common law claims of wrongful termination in violation of public policy, the court found no justification for imposing personal liability on defendant supervisory employees. Plaintiffs' causes of action for intentional infliction of emotion distress were barred by the workers' compensation exclusive remedy provisions. The alleged wrongful conduct occurred at the worksite, in the normal course of the employer-employee relationship. See generally Larson’s Workers’ Compensation Law § 104.05.

State ex rel. Bogan v. Industrial Comm'n, 2008 Ohio 3826, 2008 Ohio App. LEXIS 3255 (July 31, 2008).  A temporary total disability (TTD) compensation claimant filed an action in mandamus, seeking an order compelling the Industrial Commission to vacate its order denying her TTD compensation under R.C. 4123.56 on the ground that she voluntarily abandoned her employment and to grant such compensation.  While on leave pursuant to the Family Medical Leave Act (FMLA), the claimant came to the employer's office and submitted work restrictions from her doctor. At that time, she was subjected to drug testing and tested positive for cocaine. The employer then terminated the claimant's employment. The Commission found that the claimant was not entitled to TTD compensation for injuries that she had previously sustained while working for the employer because she had voluntarily abandoned her employment when she was fired for violating a known work rule. However, the magistrate in the subsequent mandamus action found that the claimant did not voluntarily abandon her employment. In overruling the employer's objection and adopting the magistrate's decision as its own, the court held that the magistrate properly found there was no evidence that the claimant used illegal drugs or alcohol while on the employer's property or that she reported to work under the influence of illegal drugs in violation of the employer's rule; instead, the undisputed evidence showed that, on the drug test, the claimant was off work on FMLA leave and came to the employer's office simply to drop off work restrictions. The court overruled the objection, adoption the magistrate's decision as its own, and granted the writ of mandamus. See generally Larson’s Workers’ Compensation Law § 84.04.

SAIF Corp. v. Sprague, 2008 Ore. App. LEXIS 1102 (July 30, 2008).  The employer and insurer sought review after the Workers’ Compensation Board allowed the employee’s claim for medical services (gastric bypass surgery).  The employee suffered a work-related knee injury in 1976.  At that time, he weighed 225 pounds.  He began steady weight gain thereafter and by January 1996, weighed 320 pounds.  His physicians considered a surgical approach to bring his weight under control. In 1998, his left knee became symptomatic once again and in February 1999, the employee suffered a second work-related injury to his knee. That employer accepted the employee’s new injury as compensable. In 2001, when the employee weighed 350 pounds, gastric bypass surgery was performed.  The employee filed a workers' compensation claim for the medical expenses incurred as a result of the surgery. He contended before the board that the surgical expenses were compensable because his current knee condition could not be treated successfully without claimant losing 100 to 150 pounds. In the employee's view, it was necessary to first treat his morbid obesity as part of the treatment of his knee condition. The insurer countered that the claim for medical services for the gastric bypass surgery was not compensable because claimant's obesity was not caused by the 1976 knee injury.  The Court of Appeals disagreed.  In as much as the gastric bypass surgery was performed to control the employee's obesity in order to allow the compensable knee injury to heal, it was itself compensable. See generally Larson’s Workers’ Compensation Law § 94.03.

Ex parte Singleton, 2008 Ala. LEXIS 157 (July 25, 2008).  The employer appealed to the Court of Civil Appeals from a judgment of the trial court awarding permanent-total-disability benefits to Singleton pursuant to § 25-5-1 et seq., Ala. Code 1975. The Court of Civil Appeals concluded that the employer did not receive proper notice of Singleton's alleged work-related injury, and it reversed the judgment and remanded the case.   Singleton sought additional review before the state supreme court.  At issue was whether a statement by Singleton to his supervisor that he had hurt his back “while emptying the trash can” was sufficient notice of injury.  It was undisputed that the last thing Singleton did each day was to empty a 55-gallon trash can. The trial court had concluded that Singleton's telling the supervisor he had injured his back while emptying the trash can would put a reasonable person on inquiry that the injury was work related.  That the Court of Civil Appeals found Singleton’s statement insufficient as a matter of law only showed that if the facts were undisputed, and yet from the same facts reasonable persons could draw different conclusions as to the sufficiency-of-the-notice issue, the appellate court should not substitute its judgment for that of the trial court.  The case was reversed and remanded. See generally Larson’s Workers’ Compensation Law §§ 126.03, 130.05.

Veco Alaska, Inc. v. State, 2008 Alaska LEXIS 110 (July 25, 2008).  Huizenga worked at VECO for approximately eleven years in a number of positions. Before beginning his VECO employment, he sustained a back injury while working for another employer. He reinjured his back at his VECO job while moving some timbers. He then had three surgeries and ultimately was confined to a wheelchair. VECO paid his workers' compensation benefits and petitioned the Second Injury Fund for partial reimbursement. The Fund denied both that Huizenga had a qualifying preexisting condition and that VECO had established by a written record that it knew Huizenga had such a preexisting condition. The Alaska Workers' Compensation Board found that VECO had not produced written records from which it could reasonably be inferred that VECO had prior knowledge of Huizenga's qualifying impairment.  VECO appealed.  The court observed that not all causes of permanent physical impairment qualify for reimbursement from the Second Injury Fund, that to be considered a permanent physical impairment for Second Injury Fund purposes, the condition must be listed in the statute or fall within the statute's general provision, and that an employer need not show that a listed condition is in fact a hindrance to employment for a specific employee; if the condition is one covered by the Second Injury Fund statute, a permanent physical impairment exists as a matter of law.  Here Huizenga had arthritis at the time he started working for VECO, but did not include that fact in an employment questionnaire.  The court concluded that by requiring VECO to present evidence that showed unequivocally that it knew Huizenga had arthritis rather than simply a permanent impairment, the board imposed a requirement that exceeded what an employer must show to obtain reimbursement from the Second Injury Fund. Such a strict standard is one that most employers would likely not be able to meet since employees may not fully understand their medical conditions or may misconstrue a doctor's advice or opinions.  Concerned that the standard the Board used created the wrong incentive for employers: it could discourage employment or retention of any employee who appeared to have an impairment unless the impairment could easily and explicitly be pinned to a specific cause listed in AS 23.30.205(d)(1), the supreme court reversed. See generally Larson’s Workers’ Compensation Law § 91.03.

Brackett v. Focus Hope, Inc., 2008 Mich. LEXIS 1442 (July 30, 2008).  Brackett alleged a psychological disability that resulted from a disciplinary action taken after she refused to attend a mandatory Martin Luther King Day celebration in Dearborn.  She acknowledged that she knew her employer required all employees to participate in the annual gathering and had even attended the prior year's event, but that she objected to a decision to move the celebration to Dearborn, where she had bad experiences and where she contended the city's history of oppression to African-Americans made it an inappropriate locale.  Brackett's supervisor disciplined her by docking her one day's pay.  Subsequently, the employer's CEO deducted a second day of pay and issued a memo stating that Brackett's refusal to attend the Martin Luther King Day event reduced the CEO's confidence in Brackett's commitment to the goals of the employer. Brackett became distraught and sought care from a psychologist, who diagnosed Brackett as suffering a disabling depression.  She sought workers' compensation benefits and the magistrate awarded them, finding the employment events and Brackett's perception of those events was reasonable.  Although the magistrate found that Brackett had willfully refused to attend the King Day event, and that her disability had resulted from that refusal, the magistrate nonetheless rejected the defense argument that Brackett's misconduct barred her recovery of benefits under MCL 418.305.  The Workers' Compensation Appellate Commission awarded benefits and chastised the employer for its insensitivity. The Court of Appeals agreed that Brackett violated a workplace rule but held that to be disqualified from receiving workers' compensation benefits Brackett needed to have acted in a manner that involved some degree of "moral turpitude."  The Supreme Court, in a 4-3 decision, reversed.  Noting that Brackett was not been fired for her actions—she had been disciplined—the court observed that it was the discipline for Brackett's intentional and willful misconduct that caused her depression and mental disability.  According to the court, section 305 prohibited the recovery of benefits for conduct that was deliberate or non-accidental and that disregarded the employer's interests, including its work rules.   Brackett knew that attending the event was mandatory.  She refused to attend.  The court rejected the insertion of a "moral turpitude" requirement into the text of MCL 418.305. See generally Larson’s Workers’ Compensation Law §§ 34.01, 56.04, 56.06.