Recent Developments from Around the States

Foster sued his employer after he was terminated for failing a drug test. He had been required to provide a urine sample and signed a consent form that limited the release of the results to his employer. No authorization to re-release the test results was provided. After he failed the test, Foster's employer telephoned his house and told his 15-year-old stepson that Foster had failed the drug test, and that his employment was being terminated. As a result, Foster's entire family was aware of the drug test results. Foster argued that as a matter of public policy, the employer had a duty to maintain the confidentiality of the drug test in his medical records. There is a Georgia statute that provides that a “patient's” clinical records are not public and may not be released except under circumstances set forth in those provisions. However, the term “patient” is defined as persons seeking treatment for alcoholism, drug addition or mental illness.

The Georgia Court of Appeals decided that Foster was a not a “patient” because he was not seeking medical treatment when he provided the urine sample. Consequently, he had no right to complain about the release of the drug test results under the state law requiring confidentiality of medical records.

MINNESOTA

An employee was required to refund unemployment compensation benefits of over $6000 after the Minnesota Court of Appeals held that her failure to report to her supervisor was a form of misconduct. Lindsay v. White Earth Land Recovery Project, 2003 WL 22290406 (Minn. Ct. App. Oct. 7).

Cindy Lindsay was employed by White Earth Land Recovery Project (White Earth) as an administrative assistant. After she saw a newspaper advertisement announcing a vacant administrative assistant job at the company, she became upset, and called her supervisor to see if she was being fired. Her supervisor denied that she was being dismissed, and asked her to come to work to discuss the situation. She refused to do so, and instead sought medical care for depression.

Lindsay's absence was excused by her physician for several months, until she met with a senior representative of White Earth. This individual instructed her to discuss her concerns with her supervisor, and told her White Earth would accept no further medical excuses. Lindsay refused to return to work to talk with her supervisor, and was subsequently discharged. She was initially awarded benefits, on the theory that her absences were related to a mental illness, but this decision was reversed in the end, and she was directed to repay the State the amount of $6235. On appeal, the agency decision was affirmed by the Minnesota Court of Appeals. The court ruled that her refusal to return to work was a form of misconduct because her unwillingness to meet with her supervisor was deliberate and not accidental, and because it disregarded standards of behavior reasonably established by White Earth.

NORTH CAROLINA

No Workers' Compensation for Fibromyalgia

The North Carolina Court of Appeals has held that a workers' compensation claimant failed to carry her burden of proving that fibromyalgia is an occupational disease. James v. Perdue Farms, Inc., 2003 WL 22288159 (N.C. App. Oct. 7).

Pamela James was employed by Perdue Farms, Inc. (Perdue) in various jobs, each of which required her to use her hands to perform repetitive motions. After 5 or 6 years of work, James began to experience pain in her hands, and later in her neck, shoulder, and arms. The pain continued, and after approximately 10 years, she began a medical leave of absence, never returning to work.

This case presented the issue of whether James could obtain workers' compensation on the theory that her condition, described as fibromyalgia, was an occupational disease. In North Carolina, there is a three-part test to determine whether a condition is compensable. First, there must be proof that the condition is characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged. Second, the condition must not be an ordinary disease of life to which the public generally is equally exposed. And third, there must be proof of a causal connection between the disease and the claimant's employment.

Here, James did offer proof of causation, through testimony of a physician, a neurologist who examined her. However, she did not meet her burden of proving that her employment exposed her to an increased risk of developing fibromyalgia, so the decision of the North Carolina Industrial Relations Commission, denying her claim, was affirmed by the Court of Appeals.

Injury by Accident Required to Recover Workers' Compensation

The North Carolina Court of Appeals has ruled that a psychological reaction to an argument with a supervisor is not an “injury by accident,” and was compensable under the workers' compensation laws because the argument was expected and ordinary. Knight v. Abbott Laboratories, 2003 WL 22288002 (N.C. App. Oct. 7).

Knight was employed by Abbott Laboratories for approximately 14 years when she and a less senior co-worker requested the same vacation day. The co-worker was granted the requested vacation day, and Knight subsequently confronted her supervisor. The discussion escalated into an argument resulting in Knight returning to her work station in tears. As a result of this confrontation, Knight alleged that she broke out in hives, sought medical attention and was diagnosed with post-traumatic stress disorder and recurrent major depression, rendering her totally disabled.

A workers' compensation commissioner held that Knight did not sustain an “injury by accident” arising out of the course of her employment and was not entitled to workers' compensation benefits. The North Carolina Court of Appeals affirmed the decision, reasoning that under North Carolina law, entitlement to compensation is only for an “injury by accident,” not simply an injury. The appellate court concluded that this was not an “injury by accident” because Knight initiated the contact with her manager, both parties raised their voices and participated in the argument, disagreements between employees and their supervisors are common, and the confrontation “did not constitute an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.” Consequently Knight did not suffer a compensable “injury by accident.”

SOUTH CAROLINA

Injury During Personal Break Not Compensable under Workers' Compensation

The Supreme Court of South Carolina has ruled that an employee injured by an accidental shooting, on break, is not entitled to workers' compensation benefits. Dukes v. Rural Metro Court, 2003 WL 22328135 (S.C. Oct. 13).

During a paid break, paramedic Richard Dukes and a co-worker went outside to smoke. The co-worker retrieved a gun from her car for Dukes to examine. Upon returning the gun to its owner, Dukes was accidentally shot in the upper thigh. He sought workers' compensation, which was denied by the workers' compensation commissioner on the theory the injury did not arise out of his employment.

South Carolina law has recognized a “personal comfort doctrine” including water breaks, and bathroom and smoking breaks. Such breaks are regarded as necessary to the life, comfort and convenience of the employee, but are not necessarily acts of service that are beneficial to the employer. When an accident occurs during such a break, it may be compensable, under South Carolina law.

This decision limited application of the “personal comfort doctrine” by holding that only accidents that are reasonably connected to the actual personal break actually arise out of the course of employment. In overturning the lower court, the South Carolina Supreme Court distinguished between expected accidents during a break, such as one involving a lighted cigarette during a smoke break, and incidents that were not anticipated or that reasonable minds could not fathom would occur during a break. Because an injury must be one arising out of and in the course of employment in order to be compensable, the court found that a shooting accident was not in the course of employment, because the gun was not naturally found on the employer's premises and was in no way connected to the employer's business.

This month's Recent Developments from Around the States was written by John P. McAdams, Leslie Schultz-Kin and Penelope A. Dix. McAdams is a partner in the Labor and Employment Law Group of Carlton Fields in its Tampa, FL, office. Schultz-Kin and Dix are associates in that practice group.

GEORGIA

No Personal Privacy in Employment Drug Testing Results

The Georgia Court of Appeals has held that disclosure of employee drug screening test results does not violate any right to privacy, or otherwise amount to actionable conduct, under Georgia statutes requiring confidentiality of medical records. Foster v. Swinney, 2003 WL 22251614 (Ga. App. Oct. 2).

Foster sued his employer after he was terminated for failing a drug test. He had been required to provide a urine sample and signed a consent form that limited the release of the results to his employer. No authorization to re-release the test results was provided. After he failed the test, Foster's employer telephoned his house and told his 15-year-old stepson that Foster had failed the drug test, and that his employment was being terminated. As a result, Foster's entire family was aware of the drug test results. Foster argued that as a matter of public policy, the employer had a duty to maintain the confidentiality of the drug test in his medical records. There is a Georgia statute that provides that a “patient's” clinical records are not public and may not be released except under circumstances set forth in those provisions. However, the term “patient” is defined as persons seeking treatment for alcoholism, drug addition or mental illness.

The Georgia Court of Appeals decided that Foster was a not a “patient” because he was not seeking medical treatment when he provided the urine sample. Consequently, he had no right to complain about the release of the drug test results under the state law requiring confidentiality of medical records.

MINNESOTA

An employee was required to refund unemployment compensation benefits of over $6000 after the Minnesota Court of Appeals held that her failure to report to her supervisor was a form of misconduct. Lindsay v. White Earth Land Recovery Project, 2003 WL 22290406 (Minn. Ct. App. Oct. 7).

Cindy Lindsay was employed by White Earth Land Recovery Project (White Earth) as an administrative assistant. After she saw a newspaper advertisement announcing a vacant administrative assistant job at the company, she became upset, and called her supervisor to see if she was being fired. Her supervisor denied that she was being dismissed, and asked her to come to work to discuss the situation. She refused to do so, and instead sought medical care for depression.

Lindsay's absence was excused by her physician for several months, until she met with a senior representative of White Earth. This individual instructed her to discuss her concerns with her supervisor, and told her White Earth would accept no further medical excuses. Lindsay refused to return to work to talk with her supervisor, and was subsequently discharged. She was initially awarded benefits, on the theory that her absences were related to a mental illness, but this decision was reversed in the end, and she was directed to repay the State the amount of $6235. On appeal, the agency decision was affirmed by the Minnesota Court of Appeals. The court ruled that her refusal to return to work was a form of misconduct because her unwillingness to meet with her supervisor was deliberate and not accidental, and because it disregarded standards of behavior reasonably established by White Earth.

NORTH CAROLINA

No Workers' Compensation for Fibromyalgia

The North Carolina Court of Appeals has held that a workers' compensation claimant failed to carry her burden of proving that fibromyalgia is an occupational disease. James v. Perdue Farms, Inc., 2003 WL 22288159 (N.C. App. Oct. 7).

Pamela James was employed by Perdue Farms, Inc. (Perdue) in various jobs, each of which required her to use her hands to perform repetitive motions. After 5 or 6 years of work, James began to experience pain in her hands, and later in her neck, shoulder, and arms. The pain continued, and after approximately 10 years, she began a medical leave of absence, never returning to work.

This case presented the issue of whether James could obtain workers' compensation on the theory that her condition, described as fibromyalgia, was an occupational disease. In North Carolina, there is a three-part test to determine whether a condition is compensable. First, there must be proof that the condition is characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged. Second, the condition must not be an ordinary disease of life to which the public generally is equally exposed. And third, there must be proof of a causal connection between the disease and the claimant's employment.

Here, James did offer proof of causation, through testimony of a physician, a neurologist who examined her. However, she did not meet her burden of proving that her employment exposed her to an increased risk of developing fibromyalgia, so the decision of the North Carolina Industrial Relations Commission, denying her claim, was affirmed by the Court of Appeals.

Injury by Accident Required to Recover Workers' Compensation

The North Carolina Court of Appeals has ruled that a psychological reaction to an argument with a supervisor is not an “injury by accident,” and was compensable under the workers' compensation laws because the argument was expected and ordinary. Knight v. Abbott Laboratories, 2003 WL 22288002 (N.C. App. Oct. 7).

Knight was employed by Abbott Laboratories for approximately 14 years when she and a less senior co-worker requested the same vacation day. The co-worker was granted the requested vacation day, and Knight subsequently confronted her supervisor. The discussion escalated into an argument resulting in Knight returning to her work station in tears. As a result of this confrontation, Knight alleged that she broke out in hives, sought medical attention and was diagnosed with post-traumatic stress disorder and recurrent major depression, rendering her totally disabled.

A workers' compensation commissioner held that Knight did not sustain an “injury by accident” arising out of the course of her employment and was not entitled to workers' compensation benefits. The North Carolina Court of Appeals affirmed the decision, reasoning that under North Carolina law, entitlement to compensation is only for an “injury by accident,” not simply an injury. The appellate court concluded that this was not an “injury by accident” because Knight initiated the contact with her manager, both parties raised their voices and participated in the argument, disagreements between employees and their supervisors are common, and the confrontation “did not constitute an interruption of the work routine and the introduction thereby of unusual conditions likely to result in unexpected consequences.” Consequently Knight did not suffer a compensable “injury by accident.”

SOUTH CAROLINA

Injury During Personal Break Not Compensable under Workers' Compensation

The Supreme Court of South Carolina has ruled that an employee injured by an accidental shooting, on break, is not entitled to workers' compensation benefits. Dukes v. Rural Metro Court, 2003 WL 22328135 (S.C. Oct. 13).

During a paid break, paramedic Richard Dukes and a co-worker went outside to smoke. The co-worker retrieved a gun from her car for Dukes to examine. Upon returning the gun to its owner, Dukes was accidentally shot in the upper thigh. He sought workers' compensation, which was denied by the workers' compensation commissioner on the theory the injury did not arise out of his employment.

South Carolina law has recognized a “personal comfort doctrine” including water breaks, and bathroom and smoking breaks. Such breaks are regarded as necessary to the life, comfort and convenience of the employee, but are not necessarily acts of service that are beneficial to the employer. When an accident occurs during such a break, it may be compensable, under South Carolina law.

This decision limited application of the “personal comfort doctrine” by holding that only accidents that are reasonably connected to the actual personal break actually arise out of the course of employment. In overturning the lower court, the South Carolina Supreme Court distinguished between expected accidents during a break, such as one involving a lighted cigarette during a smoke break, and incidents that were not anticipated or that reasonable minds could not fathom would occur during a break. Because an injury must be one arising out of and in the course of employment in order to be compensable, the court found that a shooting accident was not in the course of employment, because the gun was not naturally found on the employer's premises and was in no way connected to the employer's business.

This month's Recent Developments from Around the States was written by John P. McAdams, Leslie Schultz-Kin and Penelope A. Dix. McAdams is a partner in the Labor and Employment Law Group of Carlton Fields in its Tampa, FL, office. Schultz-Kin and Dix are associates in that practice group.