December 1996

Vol.1 – No.5

How the ADA Affects Workers’ Comp

  • Q. If a worker is eligible for workers’ comp, does this mean he automatically has a “disability” for purposes of the Americans with Disabilities Act (ADA)?
  • A. No. Many injuries that qualify for worker’s comp are not serious enough to make someone “disabled” for purposes of filing an ADA claim. Injured workers are “disabled” under the ADA only if their injury makes them “substantially limited in a major life activity” such as working, walking or breathing.

However, the ADA also covers workers whose company perceives them as disabled. Therefore, even if a worker isn’t injured seriously enough to be “disabled”, he might still be covered if his employer discriminates against him because of his impairment, such as by refusing to let him come back to work.

  • Q. Can a job applicant be asked if he has filed workers’ comp claims in the past?
  • A. No. However, after a company has made a job offer, it can ask for limited information about past on-the-job injuries, so long as it has a legitimate need for the information and asks the same questions of all new employees in similar jobs.
  • Q. Can a worker sue under the ADA if he is fired from taking leave after filing a comp claim?
  • A. Maybe. The worker would have to show that he is “disabled” and that being given short-term leave would be a “reasonable accommodation”.
  • Q. Can a company give a medical exam to a worker who files a comp claim?
  • A. Yes. A company can require a medical exam or ask questions about an on-the-job injury to find out what benefits the worker should get or determine if he is healthy enough to return to work.

However, if a company asks for more information than it needs to process a comp claim, or forces a worker to her many exams or repeatedly answer the same questions, this may be “disability-based harassment” under the ADA.

  • Q. Can a company refuse to hire because the applicant has filed comp claims in the past, or because hiring this applicant will result in higher comp costs?
  • A. No. However, a company can refuse to hire people who are so likely to injure themselves that they pose a “direct threat” to the workplace.

Hot Sites

The New York State Consumer Protection Board (www.consumer.state.ny.us) has a downloadable consumer complaint form.

The Consumer Information Catalog (www.pueblo.gsa.gov) has over 253 publications from 40 governmental agencies.

Kenneth Vercammen Esq. of New Jersey (www.njlaws.com) has consumer, estate planning and personal injury information.

Senior citizens, their families, attorneys, social workers and financial planners can access information about elder law, Medicare, Medicaid, estate planning, trusts and rights of the elderly and disabled at the Senior Law home page (www.seniorlaw.com).

What’s New in Debtor/Creditor Law?

The Fair Debt Collection Practices Act: The following two decisions are contrary to decisions reported in Volume 1, No. 3 of the Legal Survival Newsletter. Debt collectors who collect bad checks written by consumers for goods or services intended for household or personal use, are covered by the Fair Debt Collections Practices Act (Federal Trade Commission Staff Interpretation). Debt collectors who communicate with Louisiana debtors must be properly licensed by the state. An unlicensed collector who attempts to collect a debt is threatening to take action it cannot legally take in violation of the FDCPA (U.S. District Court for the Middle District of Louisiana). For further information, order “Highlights of the Fair Debt Collection Practices Act” pamphlet.

Creditors may write directly to bankruptcy debtors seeking reaffirmation agreements if the letters do not contain a threat of immediate action by the creditor and are non-coercive (U.S. Circuit Court of Appeals Sevenths Circuit).

Even though a note provided for attorneys fees, a bank cannot collect them from a guarantor because the guarantee referred only to collection of “charges and costs” upon default (Loudoun County Circuit Court, Virginia)

What’s New in Divorce/Family Law?

Workers’ comp. divided at divorce. A workers’ compensation award can be divided at divorce even though part of it was intended to compensate the husband for future lost wages after the divorce. The award constitutes “marital property” because the claim accrued during the marriage of the parties (Illinois Supreme Court).

Civil suits for domestic violence. Victims of domestic violence are instituting civil actions in the following situations:

  • Assault or battery by a present or former spouse or partner.
  • The abuser recklessly or intentionally caused the partner or someone else (child, parent or other relative) to suffer emotional distress.
  • The abuser has confined or falsely imprisoned the partner against his or her will.
  • The survivors of the victim have a case against the abuser for wrongful death.
  • The abuser has raped the victim.
  • The abuser has stalked the spouse or partner resulting in intrusion on seclusion, trespass, tortious interference with the contractual relations and infliction of emotional distress.
  • The victim is subjected to the intentional sexual transmission of a disease or condition such as herpes or HIV.
  • The abuser has taken, sold or destroyed the partner’s property without permission.
  • The abuser seeks to financially isolate the spouse or partner by interfering with his or her job, bank accounts, investments or other finances.
  • Employers may be held liable for an injury suffered by an employee at the hands of a domestic partner who enters the office or factory.

State and federal law have been used as a grounds for these lawsuits. The law varies from state-to-state. The Federal “Violence Against Women Act”, is being used to bring civil rights suits against the other spouse by victims of sexual harassment at work, rape, child sex abuse, stalking and “gay-bashing” attacks. Under the act, the victim can recover unlimited compensatory and punitive damages and attorneys fees.

What’s New in Estate Planning Law?

Sister sues brother for interfering with her inheritance. A sister who lost her inheritance because of her brother’s actions can sue for interference with an inheritance where she cannot obtain adequate relief from the will contest. The sister sued her brother for talking their mother into making a new will and leaving him the bulk of her estate (Indiana Court of Appeals).

What’s New in Health Law?

Health care fraud. The Kennedy-Cassaubaum Act establishes a new felony relating to health care fraud. It will now be unlawful for any person who knowingly and willfully executes or attempts to execute a “scheme or devise” to defraud any health care benefit program or to obtain any of the money or property owned by or under the custody or control of any health care benefit program in connection with the delivery of or payment for health care benefits or services. Also, one of the new violations includes a claim for reimbursement based on a service code that the person knows or “should know” will result in a greater payment than the code “the person knows or should know” is applicable to the item or service actually provided. This provision also makes it unlawful to submit Medicare or Medicaid claims for a pattern of medical or other items or services that a person knows or should know are not medically necessary. Another new offense concerns “remuneration” offered or paid to beneficiaries in order to influence a person to order or receive from a particular provider or practitioner an item or service covered by Medicare or Medicaid. The penalty applies only to the provider, not the beneficiary, although a beneficiary who accepts illegal remuneration arguably could be charged as an accessory. “Remuneration” includes waiving deductibles and co-payments in some circumstances.

What’s New in Landlord/Tenant Law?

Insurance covers housing discrimination. Liability insurance will cover a real estate management company which was sued under the Fair Housing Act. The policy covered “bodily injury”, which was defined as including “mental anguish or mental injury”. The court ruled that the racial discrimination caused emotional distress and was not an “intentional act” excluded by the policy (U.S. Court of Appeals, Seventh Circuit).

Lead paint covered by liability insurance. Most courts have held that the “pollution exclusion” bars coverage of lead paint injury lawsuits by tenants against landlords. However, the U.S. Court of Appeals for the Second Circuit held that an apartment complex which was sued after a child ingested lead paint is covered by its business liability policy despite an exclusion for “the discharge, dispersal, seepage, migration, release or escape of pollutants”. This court also held that a similar policy covered a landlord against a lawsuit by a tenant who suffered carbon monoxide poisoning and as a result of a defective heating system. A painting contractor who was sued after a child ingested lead paint is covered under a standard business liability policy even though the policy contained a “pollution exclusion”. The court held that this exclusion was limited to environmental pollution (New Hampshire Supreme Court). Maryland and Massachusetts have had similar decisions.

What’s New in Personal Injury Law?

Workers’ comp for secondhand smoke. Employees in New York, California, Florida, Kansas, Massachusetts, New Mexico and Wisconsin have qualified for workers’ comp for lung cancer, emphysema, asthma and chronic bronchitis caused by secondhand smoke. Awards have been made in the following situations: Flight attendants for bronchial conditions, pleurisy and allergies from exposure to passengers smoking. A waiter suffered a heart attack after working in a smoky bar. A hospital worker died of lung cancer. Office worker hospitalized for severe asthma attack and lung infection. Prison workers breathing problems exacerbated. Engineer with allergy to tobacco smoke collapsed after being transferred to an office where half the employees smoked. Budget analysis developed multiple chemical sensitivity from exposure to pipe tobacco. City officer worker treated for bronchial asthma aggravated by working in a poorly-ventilated office. Accountant fired for absenteeism due to ailments. The Action on Smoking and Health has an outline of the medical studies and reports that have addressed the health risks of secondhand smoke. Call 202-659-4310 or visit http://www.ash.org.

What’s New in Real Estate Law?

Vacationers get squatter’s rights. Adverse possession claims (squatters rights) are obtained where there is clear and convincing evidence that the claimant actually used the land like an owner for at least ten years. The claimants actually occupied a cottage for only one month a year for vacations. The cottage was on a small piece of land that was part of a once-booming vacation resort. The parcel had clearly defined borders. All surrounding properties had become barren and vandalized. However, the claimants’ property retained utilities, was posted and was boarded-up against vandalism except during the vacation month for ten years. The New York Court of Appeals ruled that the exercise of adverse ownership need be not more than as appropriate to the character of the particular property. For further information, see “Don’t Loose Your Property to a Squatter” in “The Upstart Small Business Legal Guide” by Robert Friedman.

What’s New in Small Business Law?

Online capital access. Small business owners indicated at the 1995 White House Conference on Small Business that access to capital was among their top concerns. The Angel Capital Electronic Network (ACE-NET) was designed by the U.S. Small Business Administration’s office of advocacy to provide a link between private investors and small companies looking for $250,000 to $5 million in investment capital. ACE-NET acts solely as a listing service for small corporate stock offerings. It is not a matching services and does not act as an advisor, broker or dealer of securities. The network operators plan to develop videos and educational materials aimed at helping small businesses become more investment-savvy. Information can be found at the SBA’s website (www.sba.org).

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

  • To communicate with you in plain language that is easy to understand.
  • To promptly return your telephone calls.
  • To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
  • To have your case personally handled by an attorney.
  • To keep you informed of the progress of your case at all times.
  • To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
  • To not handle your case in an “assembly line” fashion.
  • To accommodate the needs of you and your family during the handling of your case.
  • To vigorously protect your legal rights.
  • To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the Western New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.

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