Award of permanent total disability in workers comp could still allow finding of disability discrimination

A California appellate court recently upheld a $1.5m disability discrimination verdict against the City of Los Angeles for discharging a police officer from a light duty position after being found to be 100 percent disabled for the purposes of workers compensation. Though this may seem counter-intiutive to a lay person it makes sense if you know how workers compensation and disability discrimination statutes operate. I believe a similar verdict would be possible in Nebraska.

In short, total disability in workers compensation is a measure of how a person’s limitations effect them in the general labor market, while disability discrimination claims hinge on whether the employers made a reasonable attempt to accommodate their employees disability. Because there are two different tests it logically follows that there could be workers who are permanently and totally disabled for work comp purposes but can be accommodated under a disability discrimination statute.

One definition of total disability in under Nebraska workers compensation law can be found in Money v. Tyrell Flowers, 275 Neb. 602, 748 N.W. 2d 49 (2008) which states that total is disability is:

“(The) Probably dependability in which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of  a particular employer or friends, temporary good luck or, the superhuman efforts of the claimant to rise above crippling handicaps.”

The court probably should have added a phrase along the lines of “despite the efforts of employees union to keep him or her gainfully employed” in to the above phrase as it was likely the efforts of the officer’s union that ensured light duty employment.

In the California case, the City of Los Angeles was penalized for not going through an interactive process to determine whether the employee could continue to work for the LAPD. Another key to the ruling was the the California court held that the LAPD had to do an analysis of whether they could accommodate the employee in the light-duty job rather than the full-duty job.


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