5-3-2021; IL WC Trip and fall denial in IL WC may hang on a “shoe-string;" by Michael Palmer; How Much Do U.S. Employers Have to "Teach" FMLA Rights and more

Synopsis: Trip and fall denial while leaving work in IL WC may hang on a “shoe-string”! Research and writing by Michael Palmer, J.D., KCB&A’s most recent addition.

Editor’s Comment: In their solid ruling, the IL WC Commission delineates the subtle differences which may trigger compensability vs. denial in fall-down cases.

In Weston v. Illinois State Department of Children & Family Services, Petitioner was going to her employer’s orientation program and instructed to park in the lot in front of the building or in the alternative, a second lot nearby. The claimant parked in the lot in front of the building.

When leaving for her lunch break, she was walking on the city sidewalk between the building and the parking lot when a decorative shoelace from her own boot became caught in an uneven crack in the walkway. She fell and suffered a torn meniscus, collateral ligament sprain, and a ruptured Baker’s cyst. These are injuries that might typically lead to compensability.

The Arbitrator found the Petitioner failed to prove the accident arose out of and in the course of employment, noting she failed to prove the employer owned, controlled or operated the parking lot or walkway in question. Further, the risk of getting a decorative boot lace from one’s own choice of footwear caught in the sidewalk was a personal risk. The IL WC Commission panel affirmed.

Their analysis indicated control of the parking lot, walkway and premises remains an element of the legal analysis here, but such facts aside, in assessing slip & falls, the employer should always examine whether the employee’s risk of accident was at all personal. This claim indicates if an employee is injured due to a personal risk, even a “wardrobe malfunction”, the claim may be defeated/denied as a non-work-related risk.

If you need a copy of the decision, send a reply. This article was researched and written by Michael Palmer, J.D. who just joined the defense team at KCB&A. You can reach Mike at mpalmer@keefe-law.com.

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Synopsis: Do U.S. Employers Have to “Teach” FMLA to Your Workers Who Suffer Work Injuries?

Editor’s comment: Recently, the 11th Circuit Federal Court of Appeals considered an employer's failure to notify an employee of simultaneous FMLA rights when the worker suffered injury and received workers' compensation benefits.

When faced with a similar case, the 10th Federal Circuit also considered this issue, but would it follow the other Circuit's lead?

The facts are simple. An employee experienced an elbow injury at work and met with the employer’s human resources folks to discuss workers' compensation rights. Although the worker was simultaneously eligible to take unpaid leave under the Family and Medical Leave Act, it appears the human resources team did not advise about such concurrent eligibility.

Following the injury, the worker's doctors initially placed restrictions on work, which the employer accommodated. Later, when the doctors cleared the employee to return to full duty, the company notified the worker that it was terminating employment. It appears this may have been due to the employer not having work for both the injured employee and other similarly situated workers, too.

The employee sued in Federal Court, claiming the company sort of “violated” the worker’s FMLA rights. At trial, a jury concluded the company violated the FMLA by somehow interfering with the worker's right to take FMLA leave. However, the jury also decided the violation wasn't willful and the company would have terminated the electrician regardless of FMLA eligibility. Thus, to some extent, the jury ruled in the company's favor, after considering all the evidence.

At trial, a company representative reported if an employee suffered an injury that was covered under workers' compensation, the company would hold back the FMLA leave and not run both FMLA and WC concurrently because the company felt the workers' compensation claim adequately covered or protected the employee. It doesn’t appear the employer advised their workers of that position. I don’t agree with this employer’s handling of concurrent FMLA and WC rights—if you want to know details, send a reply.

Following the verdict, the employee appealed to the 10th Circuit, alleging the jury's finding contradicted the evidence at trial. The employee asserted the evidence indicated the company willfully interfered with FMLA rights by not fully disclosing what the employer was doing.

The Court noted to show a willful violation of the FMLA, an employee must demonstrate the employer knew or showed reckless disregard for whether its conduct was prohibited by the FMLA.

As an aside by me, I am not aware of a “full disclosure” provision in either FMLA or workers’ compensation.

Did the company willfully interfere with this Worker's FMLA rights?

There are two possible answers:

• Yes. The company purposefully did not provide the worker with FMLA notice when the employee experienced a medical condition which would cause lost time due to an injury that occurred at work.

• No. While failing to let the electrician fully know about his FMLA rights, the employer might have been negligent, but the worker didn't show “reckless disregard” by his former employer.

If you chose B, you agreed with the court in Skerce v. Torgeson Electric Company, which upheld the jury's decision in the company's favor. According to the 10th Circuit, the failure to let the worker know about the FMLA was “mere negligence or an unreasonable determination of its obligations under the FMLA.”

The federal court also highlighted either the company or the workers' compensation insurer paid the worker benefits during the time they were unable to work. Additionally, the 10th Circuit noted that regardless of the requirements of FMLA, when the worker recovered, the company did not have work available for the worker and would have terminated this employee anyway.

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