Recent Developments from Around the States

Plaintiff Weber was an aircraft mechanic for UPS. Under California law, UPS was required to have its employees undergo periodic hearing tests. Between 1989 and 1999, Weber received hearing tests as a condition of his employment to determine whether the noise to which he was exposed on the job had adversely affected his hearing. Weber relied on UPS to properly conduct and evaluate his hearing tests, to advise him of any hearing loss, and to inform him if any further medical evaluation was necessary. At some point, the tests indicated abnormalities in Weber's hearing, and indicated he was losing his hearing as a result of a growing brain tumor. UPS failed to have the hearing tests analyzed by a qualified professional, and failed to recognize the abnormality in Weber's hearing tests showing the need for further evaluation. Weber was not notified until April 2000, when he received a letter indicating he should seek a medical evaluation. Ultimately, Weber was diagnosed with a brain tumor, and because of the delay in diagnosis, the tumor had become enlarged, resulting in more draconian measures to remove it. Weber claimed that UPS failed to discover, diagnose, or inform him of a significant hearing abnormality that was a symptom of a growing brain tumor, whose subsequent treatment resulted in permanent disability and injury.

The California Supreme Court noted that UPS was required to provide these annual hearing examinations to certain classes of employees due to the inherent health hazard of their jobs. In administering hearing tests, UPS undertook to diagnose a work-related standard threshold shift had occurred. Ultimately, the court held that the alleged negligent administration of the hearing tests and the resulting injury to Weber grew out of and were incidental to Weber's employment with UPS. As a result, his exclusive remedy was under the California Workers' Compensation Act.

Failure to Exhaust Internal Complaint Procedures Fatal to Public Policy Claim

The California Court of Appeals recently held that an employee was required to exhaust administrative remedies prior to bringing a wrongful discharge action. Palmer v. Regents of Univ. of California, 2003 WL 1824835 (Cal. Ct. App. Apr. 8, 2003).

Plaintiff Palmer worked for 21 years as a clinical laboratory technologist on one of the University of California campuses. In early 1997, the department announced a restructuring, and Palmer was chosen for layoff. She was offered a temporary position, and told she would be on a priority list for rehire. Palmer filed an action claiming she had been terminated in violation of public policy, because she had reported alleged abuses, including failure to comply with state regulations. The trial court granted summary judgment in favor of the university, on the grounds that Palmer had failed to follow internal grievance procedures.

On appeal, the Court of Appeals affirmed. It held that failure to exhaust administrative remedies precluded any subsequent private civil action. In doing so, the court enabled the affirmative defense of exhaustion of administrative remedies to apply in situations even without a statutory or contractual requirement for exhaustion.

MICHIGAN

Depression Resulting from Discipline for Sexual Harassment Not Covered

The Michigan Supreme Court recently held that an individual disciplined for sexual harassment was not eligible for worker compensation benefits for his subsequent depression. Daniel v. Department of Corrections, 658 N.W.2d 144 (Mich. 2003).

In 1995, plaintiff Daniel, a probation officer, was accused of sexually harassing a female defense attorney. Subsequently, three other female attorneys made similar accusations. Daniel's supervisor conducted an investigation, and recommended that a disciplinary conference be held. Daniel was disciplined for two counts, and was suspended for 10 days without pay. After his return to work, Daniel became depressed and took a leave of absence. He sought workers' compensation benefits based upon a mental disability arising from the disciplinary proceedings. A workers' compensation appeals panel reversed an initial award of benefits, and the state appeals court reversed, ruling that Daniel's actions were not intentional and willful misconduct, and that he was entitled to benefits.

The Michigan Supreme Court reversed. The section of the Michigan Workers Compensation Act at issue provided that 'if the employee is injured by reason of his intentional and willful [sic] misconduct, he shall not receive compensation under the provisions of this act.' The court held that the fact that Daniel's depression occurred after he was disciplined for sexual harassment was not a bar to finding that he could not receive benefits because the sexual harassment was the trigger of the discipline. Further, the court held that the record amply supported a finding that plaintiff's misconduct was voluntary.

MONTANA

Job-Related Injuries and Occupational Diseases Must Be Treated Equally

The Montana Supreme Court has ruled that workers' compensation rules must treat occupational diseases the same as job-related injuries. To do otherwise is unconstitutional, the court said. Stavenjord v. Montana State Fund, 2003 WL 1798988 (Mont. Apr. 1, 2003).

Plaintiff Stavenjord contracted an occupational disease, epicondylitis, while working for a ranch in April 1998. The disease required surgery on both of her elbows, and resulted in a 12% impairment rating. Under the Montana Workers' Compensation Act, plaintiff would have been entitled to $27,027 in permanent partial disability benefits. In contrast, the Montana Occupational Disease Act limited her benefits to $10,000. Plaintiff filed a petition with the Workers' Compensation Court, claiming that the Occupational Disease Act violated her right to equal protection of the law by limiting her to less compensation than she would be entitled to for the same degree of disability under the Workers' Compensation Act. The Workers Compensation Court determined that the plaintiff was entitled to permanent partial disability benefits of $27,027.

The Montana Supreme Court affirmed. It noted that the difference between workers whose benefits were provided for under the Workers' Compensation Act and under the Occupational Disease Act was merely the number of work shifts over which their work-related affliction was sustained. The court held that the workers were similarly situated because regardless of the number of days over which their condition occurred or the mechanism which caused their affliction, they were both physically impaired as a result of work-related activity, and both in need of wage supplement benefits to compensate for the impairment to their earning capacity. Ultimately, the court held that limiting benefits to $10,000 violated the Equal Protection Clause of the Montana Constitution.

Plaintiff Palmer worked for 21 years as a clinical laboratory technologist on one of the University of California campuses. In early 1997, the department announced a restructuring, and Palmer was chosen for layoff. She was offered a temporary position, and told she would be on a priority list for rehire. Palmer filed an action claiming she had been terminated in violation of public policy, because she had reported alleged abuses, including failure to comply with state regulations. The trial court granted summary judgment in favor of the university, on the grounds that Palmer had failed to follow internal grievance procedures.

On appeal, the Court of Appeals affirmed. It held that failure to exhaust administrative remedies precluded any subsequent private civil action. In doing so, the court enabled the affirmative defense of exhaustion of administrative remedies to apply in situations even without a statutory or contractual requirement for exhaustion.The Michigan Supreme Court recently held that an individual disciplined for sexual harassment was not eligible for workers' compensation benefits for his subsequent depression. Daniel v. Department of Corrections, 658 N.W.2d 144 (Mich. 2003).

In 1995, plaintiff Daniel, a probation officer, was accused of sexually harassing a female defense attorney. Subsequently, three other female attorneys made similar accusations. Daniel's supervisor conducted an investigation, and recommended that a disciplinary conference be held. Daniel was disciplined for two counts, and was suspended for 10 days without pay. After his return to work, Daniel became depressed and took a leave of absence. He sought workers' compensation benefits based upon a mental disability arising from the disciplinary proceedings. A workers' compensation appeals panel reversed an initial award of benefits, and the state appeals court reversed, ruling that Daniel's actions were not intentional and willful misconduct, and that he was entitled to benefits.

The Michigan Supreme Court reversed. The section of the Michigan Workers Compensation Act at issue provided that 'if the employee is injured by reason of his intentional and willful [sic] misconduct, he shall not receive compensation under the provisions of this act.' The court held that the fact that Daniel's depression occurred after he was disciplined for sexual harassment was not a bar to finding that he could not receive benefits because the sexual harassment was the trigger of the discipline. Further, the court held that the record amply supported a finding that plaintiff's misconduct was voluntary. The Montana Supreme Court has ruled that workers' compensation rules must treat occupational diseases the same as job-related injuries. To do otherwise is unconstitutional, the court said. Stavenjord v. Montana State Fund, 2003 WL 1798988 (Mont. Apr. 1, 2003).

Plaintiff Stavenjord contracted an occupational disease, epicondylitis, while working for a ranch in April 1998. The disease required surgery on both of her elbows, and resulted in a 12% impairment rating. Under the Montana Workers' Compensation Act, plaintiff would have been entitled to $27,027 in permanent partial disability benefits. In contrast, the Montana Occupational Disease Act limited her benefits to $10,000. Plaintiff filed a petition with the Workers' Compensation Court, claiming that the Occupational Disease Act violated her right to equal protection of the law by limiting her to less compensation than she would be entitled to for the same degree of disability under the Workers' Compensation Act. The Workers Compensation Court determined that the plaintiff was entitled to permanent partial disability benefits of $27,027.

The Montana Supreme Court affirmed. It noted that the difference between workers whose benefits were provided for under the Workers' Compensation Act and under the Occupational Disease Act was merely the number of work shifts over which their work-related affliction was sustained. The court held that the workers were similarly situated because regardless of the number of days over which their condition occurred or the mechanism which caused their affliction, they were both physically impaired as a result of work-related activity, and both in need of wage supplement benefits to compensate for the impairment to their earning capacity. Ultimately, the court held that limiting benefits to $10,000 violated the Equal Protection Clause of the Montana Constitution.

CALIFORNIA

Brain Tumor Aggravated By Negligent Administration of Hearing Tests

The California Court of Appeal has held that an employer's failure to detect and notify an employee of a standard threshold shift in his hearing, which resulted in aggravation of an existing brain tumor, was an injury arising out of his employment, and workers compensation provided the exclusive remedy. Weber v. United Parcel Service, Inc. , 132 Cal. Rptr.2d 412 (Cal. Ct. App. 2003).

Plaintiff Weber was an aircraft mechanic for UPS. Under California law, UPS was required to have its employees undergo periodic hearing tests. Between 1989 and 1999, Weber received hearing tests as a condition of his employment to determine whether the noise to which he was exposed on the job had adversely affected his hearing. Weber relied on UPS to properly conduct and evaluate his hearing tests, to advise him of any hearing loss, and to inform him if any further medical evaluation was necessary. At some point, the tests indicated abnormalities in Weber's hearing, and indicated he was losing his hearing as a result of a growing brain tumor. UPS failed to have the hearing tests analyzed by a qualified professional, and failed to recognize the abnormality in Weber's hearing tests showing the need for further evaluation. Weber was not notified until April 2000, when he received a letter indicating he should seek a medical evaluation. Ultimately, Weber was diagnosed with a brain tumor, and because of the delay in diagnosis, the tumor had become enlarged, resulting in more draconian measures to remove it. Weber claimed that UPS failed to discover, diagnose, or inform him of a significant hearing abnormality that was a symptom of a growing brain tumor, whose subsequent treatment resulted in permanent disability and injury.

The California Supreme Court noted that UPS was required to provide these annual hearing examinations to certain classes of employees due to the inherent health hazard of their jobs. In administering hearing tests, UPS undertook to diagnose a work-related standard threshold shift had occurred. Ultimately, the court held that the alleged negligent administration of the hearing tests and the resulting injury to Weber grew out of and were incidental to Weber's employment with UPS. As a result, his exclusive remedy was under the California Workers' Compensation Act.

Failure to Exhaust Internal Complaint Procedures Fatal to Public Policy Claim

The California Court of Appeals recently held that an employee was required to exhaust administrative remedies prior to bringing a wrongful discharge action. Palmer v. Regents of Univ. of California, 2003 WL 1824835 (Cal. Ct. App. Apr. 8, 2003).

Plaintiff Palmer worked for 21 years as a clinical laboratory technologist on one of the University of California campuses. In early 1997, the department announced a restructuring, and Palmer was chosen for layoff. She was offered a temporary position, and told she would be on a priority list for rehire. Palmer filed an action claiming she had been terminated in violation of public policy, because she had reported alleged abuses, including failure to comply with state regulations. The trial court granted summary judgment in favor of the university, on the grounds that Palmer had failed to follow internal grievance procedures.

On appeal, the Court of Appeals affirmed. It held that failure to exhaust administrative remedies precluded any subsequent private civil action. In doing so, the court enabled the affirmative defense of exhaustion of administrative remedies to apply in situations even without a statutory or contractual requirement for exhaustion.

MICHIGAN

Depression Resulting from Discipline for Sexual Harassment Not Covered

The Michigan Supreme Court recently held that an individual disciplined for sexual harassment was not eligible for worker compensation benefits for his subsequent depression. Daniel v. Department of Corrections , 658 N.W.2d 144 (Mich. 2003).

In 1995, plaintiff Daniel, a probation officer, was accused of sexually harassing a female defense attorney. Subsequently, three other female attorneys made similar accusations. Daniel's supervisor conducted an investigation, and recommended that a disciplinary conference be held. Daniel was disciplined for two counts, and was suspended for 10 days without pay. After his return to work, Daniel became depressed and took a leave of absence. He sought workers' compensation benefits based upon a mental disability arising from the disciplinary proceedings. A workers' compensation appeals panel reversed an initial award of benefits, and the state appeals court reversed, ruling that Daniel's actions were not intentional and willful misconduct, and that he was entitled to benefits.

The Michigan Supreme Court reversed. The section of the Michigan Workers Compensation Act at issue provided that 'if the employee is injured by reason of his intentional and willful [sic] misconduct, he shall not receive compensation under the provisions of this act.' The court held that the fact that Daniel's depression occurred after he was disciplined for sexual harassment was not a bar to finding that he could not receive benefits because the sexual harassment was the trigger of the discipline. Further, the court held that the record amply supported a finding that plaintiff's misconduct was voluntary.

MONTANA

Job-Related Injuries and Occupational Diseases Must Be Treated Equally

The Montana Supreme Court has ruled that workers' compensation rules must treat occupational diseases the same as job-related injuries. To do otherwise is unconstitutional, the court said. Stavenjord v. Montana State Fund, 2003 WL 1798988 (Mont. Apr. 1, 2003).

Plaintiff Stavenjord contracted an occupational disease, epicondylitis, while working for a ranch in April 1998. The disease required surgery on both of her elbows, and resulted in a 12% impairment rating. Under the Montana Workers' Compensation Act, plaintiff would have been entitled to $27,027 in permanent partial disability benefits. In contrast, the Montana Occupational Disease Act limited her benefits to $10,000. Plaintiff filed a petition with the Workers' Compensation Court, claiming that the Occupational Disease Act violated her right to equal protection of the law by limiting her to less compensation than she would be entitled to for the same degree of disability under the Workers' Compensation Act. The Workers Compensation Court determined that the plaintiff was entitled to permanent partial disability benefits of $27,027.

The Montana Supreme Court affirmed. It noted that the difference between workers whose benefits were provided for under the Workers' Compensation Act and under the Occupational Disease Act was merely the number of work shifts over which their work-related affliction was sustained. The court held that the workers were similarly situated because regardless of the number of days over which their condition occurred or the mechanism which caused their affliction, they were both physically impaired as a result of work-related activity, and both in need of wage supplement benefits to compensate for the impairment to their earning capacity. Ultimately, the court held that limiting benefits to $10,000 violated the Equal Protection Clause of the Montana Constitution.

Plaintiff Palmer worked for 21 years as a clinical laboratory technologist on one of the University of California campuses. In early 1997, the department announced a restructuring, and Palmer was chosen for layoff. She was offered a temporary position, and told she would be on a priority list for rehire. Palmer filed an action claiming she had been terminated in violation of public policy, because she had reported alleged abuses, including failure to comply with state regulations. The trial court granted summary judgment in favor of the university, on the grounds that Palmer had failed to follow internal grievance procedures.

On appeal, the Court of Appeals affirmed. It held that failure to exhaust administrative remedies precluded any subsequent private civil action. In doing so, the court enabled the affirmative defense of exhaustion of administrative remedies to apply in situations even without a statutory or contractual requirement for exhaustion.The Michigan Supreme Court recently held that an individual disciplined for sexual harassment was not eligible for workers' compensation benefits for his subsequent depression. Daniel v. Department of Corrections, 658 N.W.2d 144 (Mich. 2003).

In 1995, plaintiff Daniel, a probation officer, was accused of sexually harassing a female defense attorney. Subsequently, three other female attorneys made similar accusations. Daniel's supervisor conducted an investigation, and recommended that a disciplinary conference be held. Daniel was disciplined for two counts, and was suspended for 10 days without pay. After his return to work, Daniel became depressed and took a leave of absence. He sought workers' compensation benefits based upon a mental disability arising from the disciplinary proceedings. A workers' compensation appeals panel reversed an initial award of benefits, and the state appeals court reversed, ruling that Daniel's actions were not intentional and willful misconduct, and that he was entitled to benefits.

The Michigan Supreme Court reversed. The section of the Michigan Workers Compensation Act at issue provided that 'if the employee is injured by reason of his intentional and willful [sic] misconduct, he shall not receive compensation under the provisions of this act.' The court held that the fact that Daniel's depression occurred after he was disciplined for sexual harassment was not a bar to finding that he could not receive benefits because the sexual harassment was the trigger of the discipline. Further, the court held that the record amply supported a finding that plaintiff's misconduct was voluntary. The Montana Supreme Court has ruled that workers' compensation rules must treat occupational diseases the same as job-related injuries. To do otherwise is unconstitutional, the court said. Stavenjord v. Montana State Fund, 2003 WL 1798988 (Mont. Apr. 1, 2003).

Plaintiff Stavenjord contracted an occupational disease, epicondylitis, while working for a ranch in April 1998. The disease required surgery on both of her elbows, and resulted in a 12% impairment rating. Under the Montana Workers' Compensation Act, plaintiff would have been entitled to $27,027 in permanent partial disability benefits. In contrast, the Montana Occupational Disease Act limited her benefits to $10,000. Plaintiff filed a petition with the Workers' Compensation Court, claiming that the Occupational Disease Act violated her right to equal protection of the law by limiting her to less compensation than she would be entitled to for the same degree of disability under the Workers' Compensation Act. The Workers Compensation Court determined that the plaintiff was entitled to permanent partial disability benefits of $27,027.

The Montana Supreme Court affirmed. It noted that the difference between workers whose benefits were provided for under the Workers' Compensation Act and under the Occupational Disease Act was merely the number of work shifts over which their work-related affliction was sustained. The court held that the workers were similarly situated because regardless of the number of days over which their condition occurred or the mechanism which caused their affliction, they were both physically impaired as a result of work-related activity, and both in need of wage supplement benefits to compensate for the impairment to their earning capacity. Ultimately, the court held that limiting benefits to $10,000 violated the Equal Protection Clause of the Montana Constitution.