Up North--July-August 2010

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July-August 2010

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

Basketball injury on unpaid lunch break not compensable
What is permanent partial disability?
Extended leave of absence may be reasonable accommodation under the ADA

Basketball injury on unpaid lunch break not compensable

A basic premise of the Minnesota Workers' Compensation Act is that an injury must "arise out of and in the course of" employment. The term "arising out of" requires the injury to arise out of the nature, conditions, obligations or incidents of employment. The term "in the course of" requires the injury to occur during the time, place and circumstances of employment, referring to when, where and how the employer requires the employee as part of the employment activity.

In an April 30, 2010 decision from the Minnesota Workers' Compensation Court of Appeals, an employee was denied compensation for an injury sustained while playing basketball during an unpaid lunch break. At the hearing, the Compensation Judge awarded compensation and found the self-insured employer liable for the injury, but on appeal by the employer, the Workers' Compensation Court of Appeals reversed the decision, and denied compensation to the employee. See Van Buren v. City of Willmar, No. WC09-5012 (W.C.C.A. April 30, 2010).

The employee typically worked a shift from 7:00 a.m. to 3:30 p.m. and did not punch a clock. He had an unpaid lunch break for half an hour, and shared his lunch break with other employees. A lunch room was provided in one of the employer's buildings, but the employees were not required to use the lunch room or remain on the premises during their unpaid lunch break. A basketball hoop was on the premises, and sometimes employees casually played or shot hoops during their break. The employer did not sponsor a team, the basketball activity was not part of a formal mandatory wellness program, and there was not a basketball schedule during the lunch break. During one of the employee's unpaid lunch breaks, he suffered an injury while playing basketball. The employer denied the injury, asserting it did not occur during the course of his employment.

The employee argued the injury fell within the scope of the "personal comfort doctrine" which finds an employee's injury may be within the course of his employment even though not performing usual work duties, because the injury occurred while employee was performing acts of personal comfort or convenience, such as falling in a parking lot while returning from a car in the parking lot to retrieve an item from the employee's car, or an injury that occurred as an employee was getting a cup of coffee while working from a home office. Typically, there is only slight deviation from work activities.

In the Van Buren case, the Court of Appeals found that the circumstances of the basketball injury stretched the personal comfort doctrine too far, and that playing basketball for 10 to 20 minutes during lunch was not an act "necessary to life, comfort or convenience while at work," which is typically required for application of the personal comfort doctrine. The Court noted that if the basketball injury was compensable under these circumstances, similar cases could be found compensable when an employee was injured while participating in a noon yoga class.

The Court did observe that even if the employee had been injured while voluntarily participating in a more formalized basketball activity, organized by the employer, the Workers' Compensation Act would expressly exclude coverage, under Minn. Stat. sec. 176.021:

Subd. 9 Employer responsibility for wellness programs. Injuries incurred while participating in voluntary recreational programs sponsored by the employer, including health promotion programs, athletic events, parties, and picnics, do not arise out of and in the course of the employment even though the employer pays some or all of the cost of the program. This exclusion does not apply in the event that the injured employee was ordered or assigned by the employer to participate in the program.

Given the more informal nature of this basketball activity, the Court found it an even less compelling case in which to impose liability.

What is permanent partial disability?

Permanent partial disability (PPD) benefits compensate injured employees for functional impairment. The criteria for rating and awarding PPD benefits has changed with some of the more significant revisions to the Minnesota Workers' Compensation Act, including the statutory amendments in 1983, 1992 and 1995. Generally, when evaluating PPD benefit entitlement for an employee, the existence or scope and extent of work restrictions is irrelevant to the PPD rating. Rather, the Minnesota Rules outline a PPD schedule in Part 5223 that provide a percentage rating for various categories of impairment and injury. That percentage is then multiplied by a dollar amount which is set forth in another schedule in Minn. Stat. sec. 176.101, subd. 2a.

Example (simplified for purposes of illustration): The employee injures her low back and undergoes a single-level fusion, and continues to have radicular pain with objective clinical findings. 12 percent PPD based on the seven percent rating in subp. 4, C plus the five percent additional rating for the fusion procedure.

5223.0390, Subp. 4, C. Radicular pain or radicular paresthesia, with or without lumbar pain syndrome, with persistent objective clinical findings confined to the region of the lumbar spine, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part: (1) single vertebral level, seven percent.

5223.0390, Subp. 5. Fusion.
A. Fusion, as defined in part 5223.0310, subpart 29, at one level performed as part or all of the surgical treatment of a lumbar pain or radicular pain syndrome, add five percent to the otherwise appropriate category in subpart 3 or 4.

Different rules apply when multiple injuries or body parts are rated, and when the injury may involve apportionment of a PPD rating between a pre-existing and post-injury condition, or apportionment among multiple injury dates.

The 12 percent PPD rating translates to $9,000 in PPD benefits for the employee. PPD benefits typically are paid following termination of temporary total disability benefits. PPD benefits may be paid concurrently with temporary partial disability benefits.

Extended leave of absence may be reasonable accommodation under the ADA

A recent lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) reminds employers to consider an extended leave of absence for qualified employees with disabilities who may require additional time off work as a reasonable accommodation. In a press release issued Aug. 11, 2010, the EEOC indicated that it filed a lawsuit against Princeton HealthCare System for not granting exceptions to its Family Medical Leave Act (FMLA) and medical leave policies. The EEOC claimed that Princeton terminated employees who did not qualify for FMLA leave if they did not return to work within seven days, and refused to extend leave beyond the 12-week FMLA leave, for ADA-protected employees who required reasonable accommodations. The EEOC noted that a leave of absence is one form of reasonable accommodation, and a reasonable accommodation must be provided to employees with disabilities unless the accommodation would result in an undue hardship to the employer.

This lawsuit appears to continue the EEOC's theme this year of pursuing employers who do not provide for flexibility in the administration of their leave and disability policies. It is an important illustration for employers of injured employees to study. An employee injured on the job may or may not qualify for FMLA leave, and may or may qualify as an individual with a disability under the Americans With Disabilities Act (ADA). Before termination, an employer should consult with its employment and/or workers' compensation attorneys, to assist in determining whether the injured employee has FMLA and/or ADA rights and protections. Because of the newly expanded concept of "disability" under the ADA, employers should consider always performing a reasonable accommodation analysis before taking any adverse employment action against the injured employee. Employers increasingly need to err on the side of caution in arbitrarily terminating injured employees, simply because the employee has been off work for a certain period of time.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.