Florida Appeals Court Upholds Decision to Award Permanent and Total Disability Benefits to Undocumented Worker

As a promised follow-up to my post of March 24, 2011 regarding the treatment of undocumented immigrants through the various workers’ compensation systems in the United States, another decision, this time from Florida, has been released that will further inform the debate.

In HDV Constructions Systems, Inc., et al., v Aragon, 2011 WL 2535337, released on June 28, 2011, the District Court of Appeals of Florida, First District, upheld the decision of the Judge of Compensation Claims (JCC) which found that employer, HDV Constructions Systems, Inc. (HDV), was precluded from using the claimant’s undocumented status in an attempt to defeat the claimant’s application for permanent total disability (PTD) benefits.
The case arose out of a serious injury sustained by Mr. Aragon while doing framing work for HDV. He fell from a height of 30 feet, sustaining complex fractures to his left foot and forearm. These injuries resulted in permanent restriction to sedentary work only, which prohibited the claimant from doing any of his pre-injury occupations. In addition, his lack of an education, a drivers license, an understanding of English, transferable skills and proper work documentation further inhibited his ability to obtain light employment. Mr. Aragon thereafter filed a claim for PTD benefits. HDV and its insurance carrier denied PTD benefits on the basis that Mr. Aragon was only unemployable because of his undocumented status.
On appeal, the JCC, citing to Cenvill Development Corp. v. Candelo, 478 So.2d 1168, found that HDV knew or should have known that Mr. Aragon was without the legal right to work in the United States. Further, notwithstanding this knowledge, HDV hired and continued to unlawfully employ Mr. Aragon until he was injured in a significant workplace accident. Therefore, HDV was precluded from using the claimant’s undocumented status in an attempt to defeat the claimant’s application for PTD benefits. The Court of Appeals affirmed.
One facet of the decision by the Florida Appeals Court is its firm restatement of the basic principle that an entity that knowingly employs unlawful labor should not be able to shirk the costs of the injuries it creates and shift the cost to the taxpaying public, thereby placing it in an unfairly superior financial position to those employers who operate lawfully. No doubt this principle will be the subject of much debate when legislators at the state level consider this topic in the weeks and months to come.



Can You Hear Me Now? Verizon Agrees to Pay $20 Million to Settle Disability Discrimination Lawsuit

The Equal Employment Opportunity Commission (EEOC) provided warning. In August 2010, the Director of the EEOC’s New York District Office stated, “The unfortunate reality is that too many companies discriminate against persons with disabilities by strictly applying blanket leave policies.”  Numerous EEOC investigators I spoke to indicated that disability discrimination is an EEOC priority. Apparently, not every employer got the message, so the EEOC is sending a louder message.  
On July 6, 2011, the EEOC issued a press release stating that Verizon agreed to pay $20 million to resolve a disability discrimination class action filed by the EEOC. The lawsuit alleged that Verizon unlawfully denied reasonable accommodations to hundreds of employees and disciplined or fired them pursuant to its “no fault” attendance policy. Essentially, Verizon refused to make exceptions to its attendance policies for individuals with disabilities. This settlement is the largest disability settlement in a single lawsuit in EEOC history.
The EEOC’s General Counsel stated, “Hopefully this nationwide decree will further public awareness of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.” The Director of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio, added, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.” 
These comments highlight an employer’s duty under the ADA. Employers cannot simply apply blanket leave policies to an employee who may qualify as disabled. With the enactment of the Americans with Disabilities Amendment Act, it is much easier for an employee to qualify as disabled, which imposes upon an employer a duty to explore reasonable accommodations.
Your leave policies cannot be applied in a vacuum. They must take into account whether an individual may qualify for a disability. The EEOC is focusing particularly on return to work policies. For example, an employer may have a policy requiring an employee to return to work within a certain amount of time of exhausting FMLA leave. Such policies are permitted; however, problems occur when employers terminate an employee pursuant to such a policy and that employee qualifies as disabled. As the EEOC noted, it considers unpaid leave a reasonable accommodation.

Contact: Jon Secrest


Supreme Court of Ohio Ruling: Courts Hearing Workers' Compensation Appeals Can Consider Evidence on Any Theory of Causation for a Medical Condition That Already Has Been Addressed Administratively

In a decision released on July 7, 2011, the Supreme Court of Ohio ruled 6-1 that because aggravation of a preexisting medical condition is a type of causation, it is not a separate condition or distinct injury as defined by R.C. 4123.01, and a claimant can present evidence on any theory of causation for a medical condition that already has been addressed administratively.

The case, Starkey v. Builders FirstSource Ohio Valley, L.L.C., 2011-Ohio-3278, arose out of injuries Joseph Starkey suffered to his left hip while working as a service technician for Builders FirstSource Ohio Valley (Builders). Starkey was awarded workers’ compensation benefits for a number of medical conditions arising from the accident. He later applied for benefits based on the additional condition of “degenerative osteoarthritis of the left hip.”

The Industrial Commission granted the requested additional condition. Builders appealed the decision to the Hamilton County Court of Common Pleas. During the court proceedings, medical experts for both parties testified that in their opinion Starkey had arthritis in his hip before the workplace accident, but that the accident aggravated the condition. Builders moved to dismiss the case, arguing that in common pleas court a claimant may seek to participate in the workers’ compensation fund only for those conditions addressed in the administrative order. The court granted Builders’ motion. Starkey appealed, and the 1st District Court of Appeals reversed the trial court and reinstated Starkey’s benefit. Builders then appealed to the Supreme Court of Ohio.

Justice Judith Ann Lanzinger, for the majority, wrote:

The ultimate question in a workers’ compensation appeal is the claimant’s right to participate in the fund for an injury received in the course of, and arising out of, the claimant’s employment. As long as the injury has a causal connection – whether direct or aggravated – to the claimant’s employment, the claimant is entitled to benefits.

We therefore agree with the [appellate] courts that have held that a claimant is not required to advance a specific theory of causation at the administrative level if he or she wishes to use that theory in the trial court, because R.C. 4123.512 allows for introduction of new evidence provided that it relates to the same medical condition or injury.

This decision will obviously alter the approach and the preparation needed for employers to successfully defend workers’ compensation claims. Specifically, reviewing physicians will now need to be queried regarding any and all potential theories of causation. Of note is that this claim arose under the previous “symptomatic aggravation” standard. The majority did not address how such cases can and should proceed under the current “substantial aggravation” standard, given the heightened level of evidence required, although such difficulties were alluded to in the dissent by Justice O’Donnell.

Roetzel & Andress will continue to provide further information and guidance to assist you as developments arise. If you should have any questions, please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.



How Much Notice Must a Union Provide to Workers Before Spending Dues on Political Expenses?

The United States Supreme Court has granted review of a Ninth Circuit union fee decision that will consider:
  1. whether a state may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and an opportunity to object to the fees; and
  2. whether continued public employment may be conditioned on the payment of union fees for purposes of financing political expenditures for ballot measures.  
In Knox v. Service Employees Int’l Union, Local 1000, a suit was filed by non-union California state workers against the Service Employees International Union (SEIU), the bargaining agent for state employees. California state employees who opt not to join the union are still required by state law and the collective bargaining agreement to pay a “fair share fee” to cover the cost of union representation on their behalf. However, the union is required to send the non-union employees a yearly notice explaining the basis for the fee assessment (known as a Hudson notice).

The Hudson notice is meant to provide non-union employees with notice of the fee assessment and percentage allocated to the union’s non-representational functions for activities such as political lobbying. The notice is also meant to provide an opportunity for employees to challenge the use of those fees, and o request their fees be reduced proportionally based on the amount spent for any non-representational activities.

In Knox, the SEIU properly issued its annual Hudson notice. However, the SEIU subsequently adopted a temporary mid-year fee increase for expenses not related to the union’s representation costs, but rather for a “Political Fight Back Fund” for use in opposing “anti-union” ballot propositions. The SEIU charged non-union workers, who originally objected to non-representational fees, 56.35% of the total assessment. This represented the percentage set forth in the SEIU’s original Hudson notice as the calculation related to the union’s representational function. The union did not issue a second Hudson notice, which prompted the non-union employees to file suit alleging a violation of their constitutional rights.

The non-union employees contend that the union’s subsequent assessment of the mid-year fee increase without a second notice violated its requirement to provide them with an explanation of the fee as well as an opportunity to challenge it. The trial court agreed.

The Ninth Circuit, in a divided opinion reversing the lower court and favoring the SEIU, concluded that a second notice was not required because the original notice could not be expected to provide an exact calculation of union expenditures, but only a reasonable prediction, like the one provided in the original Hudson notice. The non-union employees appealed, and the Supreme Court has agreed to hear the case, which will also include a review of whether continued public employment may be conditioned on the payment of union fees for purposes of financing political expenditures for ballot measures.