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Owner Of Restaurant Who Left Home Earlier Than Usual For Meeting Was Not Covered In Accident On Way To Work

Since the legislative change in 1979 to substitute a premises rule for the going-and-coming rule, there have been many attempts to expand the “special mission” exception. The general rule is that only injuries on employer-owned or maintained premises are covered. One big exception involves injuries that emanate from the performance of special missions. That latest attempt to prove a special mission comes from Delle Donne v. Shiki Japanese Steakhouse of Middletown, A-1919-10T1 (App. Div. 2011).

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Disclosure By Employer Of Medical Information That Was Voluntarily Offered By Employee Does Not Violate ADA

Many employers struggle with situations that develop when an employee voluntarily reveals certain confidential medical information. In Watson v. C.R. England, Inc., 2011 U.S. App. LEXIS 8971, (10 th Cir. 2011), the plaintiff worked as a truck driver for C.R. England. In the course of his employment, he informed C.R. England’s Human Resources Director that he was HIV positive. He conveyed this information not in the context of any post-offer medical examination but because he thought another driver had already advised the company of this medical information.

Problems developed a few months after Watson had been working for the company. He decided to become a driver-trainer for the company and completed a five-day “Train-the Trainer” course in February 2003. The HR Director called Watson into her office to express concerns about his ability to become a trainer in light of his HIV-positive status. Several meetings occurred with legal counsel and eventually an idea was proposed that Watson would disclose his HIV-positive status to potential trainees. Watson agreed to use a form that could be given to potential trainees in which the trainees would acknowledge that they were fully informed of his HIV status.

On February 11, 2003 Watson began his first training assignment. Before he left, he requested “home time” beginning February 16, 2003. That request was denied because Watson had not given two weeks’ notice. On February 12, 2003 Watson and his trainee were dispatched on their first drive together to deliver a load to Omaha, Nebraska.

After they delivered the load, they were sent to pick up a second load in Omaha, but the second load was canceled. They were then assigned to pick up another load, but that too was canceled. The company then advised Watson and his trainee to pick up the first previously canceled load. Watson was stressed about these cancellation occurrences and demanded immediate “home time” stating that he could not wait the two-week notice period. The request was once again refused, whereupon Watson refused to pick up the previously canceled load and said he was “deadheading” (driving an empty truck) to his family home in Florida. His employment was shortly thereafter terminated.

Watson filed a charge with the EEOC stating that C.R. England discriminated against him and retaliated against him due to his illness. The EEOC issued a determination in Watson’s favor, leading to the present law suit. Watson argued that the company violated ADA § 102(d), 42 U.S.C. § 12112(d) because he disclosed medical information. The Court of Appeals rejected this argument.

On its face, § 102(d) does not apply to or protect information that is voluntarily disclosed by an employee unless it is elicited during an authorized employment-related medical examination or inquiry. . . In sum, if an employer disclosed medical information that was voluntarily offered by an employee – outside of the context of an authorized employment-related medical examination or inquiry – then the employer is not subject to liability under § 102(d).

The court held that since the disclosure of HIV status came directly from Watson to the HR Director and not as part of any sort of examination or inquiry, the information was not protected by the ADA.

Plaintiff also argued that the company discriminated against him by requiring potential trainees to sign an HIV-acknowledgement form before training would take place. The court held that C.R. England did not deny Watson the opportunity to be a trainer, demote him, or reassign him. It disagreed with the position of the EEOC that requiring the use of the form in itself was an adverse action. The court ruled that plaintiff did not prove that the use of the acknowledgement form had any meaningful impact on Watson’s employment opportunities. “Even though some might frown upon C.R. England’s actions in effectively allowing trainees to decline to work with Mr. Watson because he has HIV, ‘not every perceived indignity will rise to the level of an adverse employment action.'”

The case is important because it draws a clear distinction between the use of medical information obtained as part of a medical examination or inquiry and the use of medical information voluntarily disclosed by an employee outside of any such examination

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Company Manager Did Not Violate ADA’s Confidentiality Provisions In Telling Prospective Employer About Former Employee’s Health Condition

Company Manager Did Not Violate ADA’s Confidentiality Provisions In Telling Prospective Employer About Former Employee’s Health Condition

Sometimes the cases with the most simple fact patterns make the best ones to understand bright lines in the law. The case of EEOC v. Thrivent Financial for Lutherans, 2011 U.S.Dist. LEXI S 64042 (D. Wisc. 2011) provides some clear guidance on what employers can and cannot say about the health of employees. In this case, it was a comment about a former employee that was the principal issue.

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Calling In “Sick” Is Not Enough To Invoke The FMLA

Employers are somewhat behind the eight ball in the FMLA because the employee need not specifically invoke the “FMLA” in order to obtain protection under the law. Nor does the employee have to give detailed information about health; rather, the employer has to consider whether the FMLA applies based on what the employee says is the reason for absence. What if the employee only says “I’m out today because I am sick?” If that happens, the lesson in Collins v. NTN-Bower Corporation, 272 F.3d 1006 (7 th Cir. 2001) is that this is not enough to trigger FMLA protection.

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Appellate Division Allows Medical Reimbursement Claim To Proceed In Civil Court While Comp Case Is Pending

Legal actions for reimbursement by medical providers have become very common in the New Jersey Division of Workers’ Compensation. Now they are even more complex following the decision in The Valley Hospital v. LQ Management LLC, A-0831-10T1 (App. Div. August 8, 2011).

The facts are straightforward. An employee of LQ Management, LLC, was treated for work-related back injuries at Valley Hospital. The hospital billed $65,549 for its services and submitted the bill to Zurich American Insurance Company, which was the workers’ compensation carrier for LQ Management. Zurich utilized a claim administrator to review the bill, and the claim administrator issued an explanation of benefits stating that Zurich was paying the bill under the hospital’s contract with FOCUS – Aetna Workers’ Comp Access, LLC. Zurich paid $24,743, less than half the bill.

Valley Hospital sued in civil court alleging breach of contract. It said that under the terms of the Aetna contract, the hospital was entitled to 80% of its billed charges based on preferred provider rates. That would have been $52,456. LQ moved to dismiss the complaint, contending that this was a workers’ compensation issue and belonged in workers’ compensation court. Further, LQ noted that there was a pending workers’ compensation claim and argued that the question of payment of this bill must be transferred to workers’ compensation court.

On the face of it, LQ’s argument had appeal because of the decision in Univ. of Mass. Mem’l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334 (2004). In that case the New Jersey Supreme Court held that “while an employee’s claim for a work-related injury is pending in the Division, a medical provider’s action for unpaid services must be transferred from the Law Division to the Division of Workers’ Compensation.” Obviously it would be better for LQ to defend only one action and to have that action vested in the Division of Workers’ Compensation.

In this case, however, the Appellate Division found a reason to distinguish the rule in Christodoulou. It said that the Christodoulou case involved a claim against a patient/employee for payment or against the workers’ compensation carrier. In this case the “complaint states a common law contract claim against the insurance carrier under the alleged Aetna contract, as well as a common law claim of unjust enrichment related to that contract and its discounted rates.” As such, the court held, “Plaintiff’s claim under such a contract, however, is not a matter pertaining to compensable benefits under the Workers’ Compensation Act.”

This distinction is an unusual one and contrasts with most workers’ compensation medical provider claims where the only issue is whether the medical services were reasonable and necessary. Those cases are claims against employees or against the appropriate workers’ compensation carrier for reimbursement. This case involved more issues of contract law and as such the court was emphatic that the Division of Workers’ Compensation was not empowered to resolve contractual disputes. For this reason, the civil action was permitted to continue even while the petitioner pursued the workers’ compensation matter. The decision illustrates an important exception to the general rule that medical reimbursement claims should be transferred to pending workers’ compensation claims in the Division. When the issue is interpretation of a contract, that issue belongs in civil court according to this decision.

Visit John H. Geaney’s Blog page at NJworkerscompblog.com

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Capehart Scatchard Lawyers Recognized As Super Lawyers

News Release

Capehart Scatchard Lawyers Recognized As Super Lawyers

Mt. Laurel, NJ – – Capehart Scatchard is pleased to announce that the following shareholders have recently been named “Super Lawyers” as voted by their peers and facilitated by Law & Politics and New Jersey Monthly: Peter S. Bejsiuk; John K. Fiorilla, John H. Geaney, and Robert J. Hagerty.

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New Jersey Rules Per Quod Claims Are Not Lienable

Newsletter

New Jersey Rules Per Quod Claims Are Not Lienable

In an important decision affecting the rights of employers in New Jersey, the Appellate Division ruled that a per quod claim is not lienable in Weir v. Market Transition Facility, 318 N.J.Super. 427 (App.Div. 1999). Before discussing the details of this case, it is important to understand the basic principles of liens and reimbursement rights in New Jersey.

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