Up North--June-July 2012

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June-July 2012

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

THIS MONTH'S TOPICS:

Recent EEOC settlement again reminds employers to have flexibility in medical leave policies and return to work
When was the last time workstation ergonomics were evaluated?
Prohibited Act must be cause of injury to bar benefits

Recent EEOC settlement again reminds employers to have flexibility in medical leave policies and return to work

In a press release issued June 25, the Equal Employment Opportunity Commission (EEOC) announced a settlement with United Road Towing, Inc., an Illinois towing company. The $380,000 settlement for the 13 claimants resolved the EEOC's disability discrimination lawsuit against the towing company, in which the EEOC alleged that the towing company had failed to provide reasonable accommodation to employees taking medical leave to help facilitate their return to work. Instead, the EEOC alleged that the towing company terminated those employees at the end of their leave. In addition to the monetary relief, the towing company was required to implement a reasonable accommodations policy and provide training on the Americans With Disabilities Act (ADA) for the company's management personnel.

This settlement confirms the EEOC's continuing interest in pursuing employers that do not have flexible leave policies with return to work options. Returning injured workers to work as quickly as possible following a work injury not only decreases the future exposure of the claim, but also helps to protect an employer from potential disability discrimination suits. Early and flexible return to work options, such as modified or light duty programs, also benefit the employer by getting them back to a productive status sooner rather than later.

When was the last time workstation ergonomics were evaluated?

Proper workstation ergonomics assist in reducing and managing exposure to risk factors that are thought to contribute to musculoskeletal injury and/or fatigue. SFM Mutual Insurance Company has prepared a helpful information sheet concerning ergonomic workstation education. Ergonomics for employees who sit as well as stand at their workstation are discussed. Generally, an ergonomic workstation assessment should include:

Desk and chair: Desk and chair adjustments help with good postural alignment.
Workstation tools and equipment: Items such as the keyboard, mouse, and telephone should be placed so as not to cause excessive overreaching. Elbow should rest comfortably at an employee's side when keying and mousing.
Telephone: Telephone use should not include "cradling" the telephone handset between the shoulder and ear. Hands-free options are helpful.
Computer monitors and document holders: Monitors and document holders should be placed in a way that allows an employee to have neutral head and neck posture.
Static positioning: Frequent changes of position, movement and/or stretching are helpful to maintain energy, form and productivity.

Sometimes an employee may complain that he is uncomfortable at his workstation, or suggest that she has been experiencing back pain from a new chair or workstation setup, for example. Employers should keep in mind that they do not create liability or create a work injury by acknowledging and responding timely to these concerns—rather, a timely and productive response to any work environment concerns may lower the probability of or significance of any such injury occurring in the future.

After an initial workstation assessment has been performed, though, an employer should periodically revisit the employee's work area. Sometimes, an employee slides back into bad postural habits, or perhaps a monitor or chair was replaced since the initial assessment, and adjustments were not made to accommodate slightly different heights or dimensions of new equipment.

Prohibited Act must be cause of injury to bar benefits

Last fall, Up North published an article on the prohibited act defense under the Minnesota Workers' Compensation Act. A recent Minnesota Workers' Compensation Court of Appeals decision declined to apply that defense to a claim where the employee was injured after allegedly abandoning his truck and trailer, and consuming alcohol while on a layover, in violation of the employer's safety policies. With respect to both alleged safety violations and claimed prohibited acts, the Court found that the employee's injury was not caused by these violations, and therefore the performance of these prohibited acts did not prevent the employee from receiving workers' compensation benefits.

In Shirkey v. J & R Schugel Trucking, Inc., slip op. (W.C.C.A. May 10, 2012), the employee was an over-the-road truck driver. The policy manual he acknowledged included the following statement:

"Trailers, loaded or empty, may not be dropped/left unattended without written permission." The manual also discussed conduct that could lead to discipline, up to and including termination, such as "[p]ossession or consumption of alcoholic beverage while on company property, using company equipment, or traveling for work."

The employee had parked for a layover at an Indiana truck stop. He asked the truck stop where he could watch a football game, and was directed to a location about a mile away. The employee walked to the location to watch the game, and left his truck at the truck stop, returning to the truck stop later that same day.

As he watched the football game at the bar/restaurant, the employee ate a meal and drank four to five alcoholic beverages. He walked back to the truck stop afterward, and the Court explained how he fell and injured himself as follows:

On his way back, the employee walked through fields and woods, and, at one point, stopped in the woods and sat for an hour and a half waiting for it to get dark and watching for deer. Once it got dark, the employee walked from the woods toward the truck stop. At approximately 8:00 p.m., the employee arrived to within five hundred to six hundred yards of the truck stop. The employee testified that a truck with bright lights approached him, slowed to a crawl, and then accelerated causing him to jump back. The employee testified he fell off the road into a ditch hitting the base of his spine. The employer stipulated the employee fell into a culvert or stepped off the road into a ditch.

The person driving the truck referenced by the employee was the individual who called 911 to report the employee's fall. The approaching truck driver stated in his 911 call that the employee appeared to be dazed or drunk, and was staggering or perhaps tripped and lost his footing. When the first responders arrived, the Sheriff's Deputy spoke with the employee who told him his truck had broken down at the truck stop and he went for a drink because he was tired of waiting. The deputy noted that the employee smelled of alcohol with glossy, red eyes and slurred speech. In the deputy's opinion, the employee was intoxicated. The doctor at the emergency room diagnosed the employee's neck and back injury without assessing intoxication. In his examination, he noted the employee's eyes were normal, while the R.N. at the emergency room noted that the employee appeared intoxicated.

The employer appealed the compensation judge's award of benefits to the employee, asserting that the employer had expressly prohibited certain acts that resulted in his injury. The Court found that the employee's act of leaving the truck and trailer for several hours was not the act or cause of the injury to the employee. In order to deny an employee workers' compensation benefits based on the prohibited act defense, the performance of the prohibited act by the employee must be the cause of the employee's injury. The Court also noted that the purpose of the policy prohibiting employees from leaving their equipment unsecured was to protect the equipment, not to protect the employee. Therefore, violation of that rule was not an act unreasonably dangerous to the employee.

As for the second alleged prohibited act, the employee's consumption of alcohol, the Court did not find that the compensation judge's decision to award benefits was clearly erroneous, and therefore the decision was affirmed. The compensation judge did not find the evidence supported a conclusion that the intoxication caused the injury. The judge instead found that it was the employee losing his footing that caused him to fall of the road. The judge noted that the deputy did not perform any tests for intoxication at the scene, and found persuasive the approaching driver's observations of the employee losing his footing in light of the significant slope of the road into the ditch with a narrow shoulder. While the evidence was somewhat conflicting, and different inferences could be drawn, it is within the province of the compensation judge to make that decision and choose between the conflicting inferences.

As a side note, the decision indicated the employee had been terminated shortly following this incident. Employers should keep in mind that while they may discipline the employee's behavior or performance—e.g. the violation of an expressly stated safety procedure or company policy—they may not discipline or punish the occurrence of the work injury itself. Discipline because an injury occurred, as opposed to disciplining the potential behavior that caused the injury, could lead to a retaliation or discrimination claim.

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.