Text Box: CURRENT EVENTS, ARTICLES, AND SUMMARIES OF RECENT CASES AND LEGISLATION IN THE AREAS OF WORKERS’ COMPENSATION, LIABILITY, INSURANCE, AND EMPLOYMENT LAW

2005

JULY
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   Any worker’s compensation claimant who has an injury that develops into a “serious health condition” is qualified for leave under the Family Medical Leave Act (FMLA).  Under the FMLA, a serious health condition is defined as a condition that substantially impairs a major life func-tion (such as walking, sleeping, dressing, etc.).  The importance of notifying an em-ployer that a workers’ compensation injury may be covered by the FMLA is that the FMLA entitles an employee to 12 weeks of leave, in most cases with a guarantee that the employee’s job will be available upon return.

   FMLA leave and workers’ compensation leave can run concurrently, provided that

Practice Pointer

The Merging of FMLA and Workers’ Compensation

by Erica A. Weber

 

 

the employee is properly notified.  If a claimant is covered by the FMLA and is returned to work within the 12 week pe-riod, the employer generally must return the claimant to the same position. 

   However, if the claimant has been absent for 13 weeks or more for a work related injury, then the employer can replace the claimant and need only return the claimant to work if a same or substantially similar position is available. 

   Please note, the intersection of these laws is a quagmire of potential employment claims, so Human Resources and an attor-ney should be consulted prior to taking any action regarding any claimant’s employment.

Padilla-Roldan v. Allstate, W.C. 4-579-973 (ICAO, June 30, 2005):  Employer leased a parking lot in which the employer permitted, but did not require, employees to use.  During an unpaid break, Claimant was eating lunch on the tailgate of a co-worker’s truck in the parking lot.  The co-worker accelerated out of a parking space with Claimant on the tailgate.  Claimant fell from the truck and died.

   ALJ Friend found Claimant’s death arose out of and in the course of employment.  ALJ Friend found the parking lot was part of the employer’s “premises” and the death was causally related to the employment because it occurred while the Claimant was ministering to his “personal needs.”

   The Industrial Claim Appeals Office affirmed and found the employer was fully aware that employees used the parking lot to eat lunch, and made this option more desirable by approving the presence of a “lunch wagon” in the parking lot.  This evidence supported the finding of a sufficient nexus between the employment and Claimant’s death.

   The course of employment test does not require Claimant to be engaged in work or on the clock if the Claimant’s activity is a normal “incident” of employment. 

   Injuries sustained on the employer’s premises while eating lunch are com-pensable under the “personal comfort doc-trine” because the employee is at a place he might reasonably be, within the time limits of the employment, and engaged in an activity reasonably incident to the work. 

 

Death in Parking Lot on Employer “Premises” Found Compensable

Ray v. ICAO, 04CA2261 (Ct. App., July 14, 2005):  Claimant sustained an admitted head injury in a work-related car accident.  Claimant was terminated three months later and told he could continue his employer’s health insurance pursuant to COBRA by paying $602.75 per month.   

   Claimant chose not to pay for coverage, but argued his average weekly wage (AWW) should include the cost of health insurance under COBRA.

   The Colorado Court of Appeals (CA) held that a Claimant’s cost of continuing an employer’s health insurance must be included in the AWW, regardless of whether or not Claimant has paid for con-tinuing health insurance.

   In interpreting C.R.S. 8-40-201(19)(b),

the CA held the statute does not require Claimant to actually continue health insur-ance for the cost to be included in the AWW.  

   The CA held the express statutory lan-guage does not require proof that the Claimant actually purchased continuing coverage in order to increase the AWW by the cost of the coverage.  

   However, the CA previously interpreted C.R.S. 8-40-201(19)(b) in a conflicting opinion in Midboe v. ICAO,  (Ct. App. 2003) and held AWW included the health insurance cost only when Claimant “continued” the employer’s coverage at his own cost.  Therefore, Respondents are not compelled to follow Ray v. ICAO pending review by the Colorado Supreme Court.

 

 

 

 

 

  

AWW To Include Cost of Health Insurance