Disability Law

Eighth Circuit: Employer Must Pay for Time Employee Missed From Work to Attend WC Medical Appointment

By David A. McCranie, Esq.

Howser v. ABB, Inc., a 3/27/2008 decision from the federal Eighth Circuit Court of Appeals involving the Fair Labor Standards Act ("FLSA"), illustrates again how workers' compensation issues sometimes become intertwined with other employment laws.  (The FLSA requires covered employers to pay a minimum hourly wage and overtime pay in certain circumstances to covered employees). 

Cynthia Howser was injured in an on-the-job accident while working for ABB, Inc., in Missouri.  ABB, through its workers' compensation claims administrator, Gallagher Bassett, accepted the compensability of the accident under Missouri law.  Howser required extensive medical care but was able to continue working following her accident.  Eventually, Gallagher Bassett  scheduled a medical appointment for Howser, but the appointment was scheduled to occur during her working hours, forcing her to miss time from work.  The purpose of the appointment, according to Gallagher Bassett, was to re-evaluate her work-related injuries. 

ABB offered to compensate Howser for the time she missed from work to attend the appointment but told her that it would deduct the hours missed from her accrued paid leave benefits.  Howser declined the offer and opted instead to take an unpaid excused absence so she would not lose any of her accrued leave benefits.  Because she did so, she was never compensated for the 3.8 hours of time she missed to attend the appointment. 

Howser eventually filed suit against ABB under the FLSA in the Federal District Court for the Western District of Missouri, claiming that she should have been paid for the 3.8 hours she missed from work.  The district court agreed and granted summary judgment in her favor.  On appeal to the Eighth Circuit Court of Appeals, ABB argued, among other things, that it shouldn't have to pay because it was Gallagher Bassett, not ABB, which had scheduled the appointment for Howser.

But the Eighth Circuit disagreed and affirmed summary judgment for Howser.  In so doing, the court cited 29 C.F.R.§785.43, which says that "[t]ime spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when he is working constitutes hours worked" (emphasis added).  And although the court agreed that it was Gallagher Bassett which actually scheduled the appointment, the court concluded that Gallagher was acting as ABB's agent. 

So what's the big deal about 3.8 hours' worth of wages?  Probably not much, but the FLSA also contains an attorney's fee provision for successful plaintiffs.  I suspect that the attorney's fees owed to Howser's attorney will far exceed any amounts owed to Howser herself.

Full post as published by Florida Workers’ Compensation Law Blog on May 12, 2008 (boomark / email).