Archive for October, 2011

October 2, 2011

Interactive process key to ADAAA compliance.

Under the Americans with Disabilities Act Amendments Act of 2009 an employee is considered disabled if they have a condition that substantially limits them from doing a type of work. A majority of workers compensation claimants will fall into this category. Once disability is established employers have a duty to engage in an interactive process to see if a reasonable accommodation can be made to keep the worker employed.

 

Employers often put employees in light and restricted duty jobs as a way to reduce workers compensation costs. Often times employers, doctors and insurers through nurse case managers work together to determine if an employee can go back to work. The problem with this arrangement is that employees are often kept out of that discussion. Some employers/insurers believe that an employee’s description of their disability is not relevant. This misconception can lead to legal problems under the Nebraska Workers Compensation Act and under the ADAAA

 

Under the Nebraska Workers Compensation Act an employee is free to testify to the extent of their own disability once causation of the injury is established. Luehring v. Tibbs, 235Neb. 883, 457 N.W. 2d 815 (1990). The practical effect of this rule is that the court will disregard doctor-given restrictions, even those attained by an FCE, if they find the claimant’s description of their disability to be credible. Credibility is crucial not just for client’s but for medical providers as well. Insurers and employers might save money through the aggressive use of nurse case managers and occupational medical clinics on the front end of the claim. But employers/insurers may face push back from the court if they believe the injured worker was treated unfairly by their medical providers and employer.

 

Permanent disability also raises ADAAA compliance issues. Under Nebraska law disability for workers compensation purposes“(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.” Money v. Tyrell Flowers, 275 Neb. 602, 748 N.W. 2d 49 (2008). ADAAA reasonable accommodation is limited to a single employer, so it could follow that an employee who is permanently and totally disabled for workers compensation purposes can still have a disability discrimination claim if the employer does not attempt to make an accommodation. That is exactly what happened in. Cuillette v. City of Los Angeles __ Cal.Rptr.3d __, 194 Cal.App.4th 757 (2011) In Cuillette a Los Angeles police officer who had been accommodated in a desk job was let go after he was found to be permanently and totally disabled.  Despite the fact that Culliette was able to do the desk job, he was terminated on the advice of the city’s workers compensation carrier who stated that since plaintiff was permanently and totally disabled that he was unable to work. Cuillette was awarded $1.5 million by aCalifornia jury.Nebraska juries are normally less generous to plaintiff’s, but even here failure by workers compensation insurers to take the ADAAA into account could be costly.

Advertisements