Comp Doesn’t Bar Suit for Emotional Distress Due to Random Drug Test

Aro, et al. v. Legal Recovery Law Offices, Inc., et al., No. D065422 (Cal. Ct. App. 04/08/15, unpublished)

Ruling: In an unpublished decision, the California Court of Appeal held that a suit brought by two workers against their employer for emotional distress arising out of the employer’s random drug test was not barred by the exclusive remedy provision of workers’ compensation. The court also found that the workers prevailed on their claim of emotional distress.

What it means: In California, a worker’s suit for emotional distress suffered due to an employer’s random drug testing policy is not barred by the exclusive remedy provision of workers’ compensation.

Summary: Legal Recovery Law Offices changed its employee manual to reserve the right to test employees for the use of illegal drugs and alcohol, but it did not provide notice of random drug testing without cause. Employees were not told about the changes but were told to “read it and figure it out.” Two debt collectors were unexpectedly required to take an immediate drug test. The collectors initially refused to sign a consent form but were told they would be fired or suspended if they refused. The collectors took the test, then sued the employer for emotional distress. The employer asserted that the suit was barred by the exclusive remedy provision of workers’ compensation. The California Court of Appeal held that the suit was not barred, and the collectors prevailed.

The court found that the employer did not properly plead exclusivity as a defense. Even if it did, the court was not persuaded that the random drug testing was encompassed within the “compensation bargain.” Here, the employer provided “wholly inadequate notice” of the drug test, and the circumstances of the drug testing were “unreasonable and outrageous.” The court concluded that the random drug test “violated a fundamental right to privacy and exceeded the risks and expectations inherent in the employment relationship.” Therefore, the exclusive remedy provision did not apply.

The court concluded that the employer’s conduct in administering the test was unreasonable and outrageous. It intended to cause the collectors emotional distress, and its conduct was a substantial factor in causing the severe emotional distress.

Preschool Teacher Entitled to Benefits for Pumpkin Carving Incident

Lawler v. Maggie Lee’s Community Center, 29 MIWCLR 18 (Mich. W.C.B.M. 2015)

Ruling: The Michigan workers’ compensation magistrate held that a lead teacher at a preschool was entitled to a closed period of weekly benefits for an injury to her right small finger she sustained while carving pumpkins in the classroom.

What it means: Where the worker’s work-related finger injury prevents her from working for the employer for an eight-month period after undergoing work-related surgery, and she establishes that her current wages represent her maximum wage earning capacity, the worker has proven an entitlement to weekly benefits for a closed period.

Summary: The magistrate held that a lead teacher at a preschool was entitled to a closed period of weekly benefits for an injury to her right small finger she sustained while carving pumpkins in the classroom. The magistrate found the teacher disclosed her qualifications and training, that her current wages of $420 per week was her maximum wage earning capacity at the time of injury, and that medical records and testimony established that her medical condition prevented her from performing any job within her qualifications and training that paid her maximum wages. The teacher testified that she continued working at her regular job until her surgery. She was unable to work due to the finger injury from the date of her surgery until the date her physician released her to return to work without restrictions. The teacher was entitled to her full rate for this period.

The magistrate also found that the teacher’s carpal tunnel syndrome was not related to her finger injury.

Average Weekly Wage Must Reflect All Earnings

Thomas v. Fulton County Board of Education, et al., No. A14A2057 (Ga. Ct. App. 03/30/15)

Ruling: The Georgia Court of Appeals sent a bus driver’s case back for recalculation of her wage-loss compensation award.

What it means: When a school employee experiences an on-the-job injury in Georgia, she may be entitled to wage-loss compensation. For employees who work second jobs over the summer months, a wage-loss compensation award may reflect not only her earnings from the employer, but supplemental earnings from other employment as well.

Summary: A school bus driver who was injured on the job was entitled to receive wage-loss compensation based on all earnings she received in the 13 weeks immediately preceding her injury, ruled the Georgia Court of Appeals. It reversed a lower court’s decision, which excluded the bus driver’s earnings from a second job, and sent the case back for redetermination of the award. There was no dispute that the driver sustained a compensable injury. In calculating her average weekly wage for purposes of her wage-loss compensation award, an administrative law judge used her full-time weekly wage as a district bus driver and divided by 52. The ALJ then added to that number a portion of the earnings the driver earned in a second job, driving buses for a private employer. On appeal, the State Board of Workers’ Compensation overruled the ALJ, determining that the wages from the second job should have been excluded because they weren’t “concurrent employment.” A superior court upheld the board’s decision without explanation. The Court of Appeals reversed.

The court explained that under a state statute, when a worker is injured, if she had worked in the same type of employment during “substantially the whole of 13 weeks immediately preceding the injury,” her average weekly wage is 1/13 of the total wages earned during that period. The lower court erred when it omitted her earnings from the second job, as this employment was the same kind of employment she performed for the district. However, the ALJ also erred by using the driver’s full-time weekly wage when the driver did not work for the district during all 13 weeks. To apply the statute correctly, the court concluded, the driver’s earnings from the 11.5 weeks she worked for the district plus the 1.5 weeks she worked for the second employer should have been totaled then divided by 13.

State Worker Can’t Overcome Agency’s Honestly Held Beliefs

Jackson v. Florida Agency for Persons with Disabilities, No. 14-12650 (11th Cir. 04/14/15)

Ruling: The 11th U.S. Circuit Court of Appeals affirmed a District Court decision that granted summary judgment to a state agency on an employee’s Rehabilitation Act and workers’ compensation claims. The 11th Circuit held that evidence did not show that the employee was terminated “solely because of” her disability or due to her receiving workers’ compensation benefits.

What it means: To establish pretext under the Rehabilitation Act, an employee must produce evidence showing that the employer did not truly believe the reasons it gave for terminating the employee. Even if the employer is mistaken, the employee will be unable to show pretext so long as the employer honestly believed the mistaken reason. In this case, a worker was not able to show that her employer’s reasons for terminating her were not what it really believed.

Summary: A worker, who had a work-related eye injury, was terminated from the Florida Agency for Persons with Disabilities for alleged inappropriate behavior. She claimed that the agency retaliated against her for receiving workers’ compensation benefits and also alleged discrimination under the Rehabilitation Act. The 11th U.S. Circuit Court of Appeals sided with the District Court ruling that granted summary judgment to the agency on the worker’s claims.

The worker’s arguments came up short on her workers’ compensation claims because the temporal proximity between her claim and her termination, which occurred in the context of an ongoing investigation and disciplinary process, “constituted no more than a scintilla of evidence.” In the 11th Circuit’s view, the worker did not show that other workers were treated more favorably nor did she rebut the agency’s legitimate reasons behind the termination.

To establish that a termination violated the Rehabilitation Act, an employee must show that her termination occurred “solely by reason of” her disability. In this case, the worker was unable to make this showing because decision-makers reviewed the incident, including video, and decided to terminate her. Even though a decision-maker initially indicated that the worker did nothing wrong, this official changed her mind after reviewing the video. The worker could not show that the agency’s reason for terminating her was pretext because evidence did not show that the agency did not honestly believe that the worker acted inappropriately.

Student’s Accident Not Related to Employment for University

High Point Insurance Co. v. Drexel University, No. A-2030-13T4 (N.J. Super. Ct. App. Div. 04/17/15, unpublished)

Ruling: In an unpublished decision, the New Jersey Superior Court, Appellate Division found that a student’s injuries did not arise out of or in the course of his employment with a university.

What it means: In New Jersey, off-premises workers are entitled to workers’ compensation benefits if they are engaged in authorized services for their employers.

Summary: A Ph.D. student and teaching assistant for Drexel University drove a vehicle that belonged to the university to a site to conduct research for his graduate dissertation. When he was driving the vehicle back to the university, he was injured in a car accident. The student filed for benefits through the automobile insurance carrier of his parents. After paying benefits, the carrier filed a workers’ compensation claim against the university seeking reimbursement of the benefits it paid on the theory that the student was in the course of his employment when the accident occurred. The New Jersey Superior Court, Appellate Division held that the student’s injuries did not arise out of or in the course of his employment.

The carrier argued that the university “entwined” the student’s personal graduate studies and teaching assignments to an extent that traveling for his research fell into his work duties. The court disagreed, finding no connection between the accident and the student’s employment.

The court pointed out that the student’s Ph.D. program did not require that he work as a teaching assistant. He chose to accept the position to offset the cost of the program. He used the university’s vehicle to reach the site for his personal research, not to engage in work as a teaching assistant. The court also noted that the student had no teaching responsibilities the week of the accident because classes were not in session.

Employee Wins Benefits for Injury From Physical Altercation With Coworker

Fairfax County Government v. Monroe, No. 1628-14-4 (Va. Ct. App. 04/14/15, unpublished)

Ruling: In an unpublished decision, the Virginia Court of Appeals held that a biologist was entitled to temporary total disability and medical benefits for injuries she sustained in a physical altercation with a coworker.

What it means: In Virginia, where a worker is injured while fighting with a coworker, the injury arises out of the worker’s employment if the fight was not personal and the worker was not responsible for the fight.

Summary: A wildlife biologist for Fairfax County Government had been concerned and frustrated by a coworker’s lack of communication regarding the biologist’s programs she managed during her absence for a nonwork-related injury to her back. When the biologist returned to work, she was assigned to work in a cubicle across from the coworker. The biologist asked the coworker about a change in the program. The biologist characterized the coworker’s response as “rude” and “dismissive,” and an argument between the biologist and coworker began. The biologist and the coworker both raised their voices and rolled their desk chairs closer to the entrances of their cubicles. The biologist began to ask the coworker why he was “acting like a jerk,” but she stopped asking the question until the coworker encouraged her to continue. The coworker then called her a name. The biologist rolled her chair into the corridor separating the cubicles and her chair became unbalanced. She briefly touched the coworker’s knee with her hand. The coworker pushed her with both hands. The next day, the biologist experienced lower back pain and was diagnosed with a lumbar strain/sprain that aggravated her preexisting back condition. She sought workers’ compensation benefits. The Virginia Court of Appeals held that she was entitled to temporary total disability and medical benefits.

The court concluded that the biologist’s injury arose out of her employment. The evidence showed that the incident was not purely personal. The altercation began when the biologist asked the coworker about a work-related matter. The court concluded that the physical contact stemmed directly from the discussion of a work-related issue. Also, evidence showed that the biologist was not the aggressor in the incident. Her comment that the coworker was “acting like a jerk” could not be viewed as particularly aggressive behavior. Also, her brief and minor contact with the coworker was accidental rather than intentional. The court said that the Workers’ Compensation Commission could reasonably infer that she did not intend to instigate a physical altercation with a coworker who was three times larger than her who also had military and police combat training.

The court rejected the employer’s argument that the biologist’s unprofessional behavior during the altercation with the coworker violated its workplace rules and constituted willful conduct. The biologist attempted to avoid insulting the coworker and only did so with his encouragement. Also, she accidentally touched his knee when she lost her balance. While her conduct was careless and unprofessional, she did not willfully commit misconduct or breach the employer’s rules.