Archive for December, 2011

December 26, 2011

More lessons learned about work comp and the ADAAA.

I recently took a doctor’s deposition in an ADAAA failure to accommodate claim stemming from a workers’ compensation injury. I gleaned two insights from the deposition that can benefit anyone who spends time at the intersection of employment and workers compensation law.

1. Many doctors like nurse case managers: Plaintiff’s lawyers are rightfully skeptical of the role that nurse case managers play in the workers compensation system. However many doctors  find the nurse case manager useful because doctor’s believe that nurse case manager is a fellow medical professional who understands the requirements of the employer’s workplace. Many doctors are uncertain about giving functional limitations for an injured workers and a nurse case manager can make it easier for a doctor to believe that they can safely return a patient to work. Plaintiff’s lawyers should craft questionnaires to doctors and frame their discovery of doctors with an understanding that many doctors view the nurse case manager as a partner rather than an adversary.

2. Employers should look at the medical dictation in addition to a return to work note in making a decision on placing an injured worker back in the workplace. The fact is that injured workers feel pressure from the employers, family and self to return to work before they are ready. Sometimes doctors will accommodate those requests with a full release to work in the form of a return to work note.  However a review of what the doctor dictated or wrote down during their examination of the injured worker will  sometimes show that the worker who has “no restrictions.” is not fully recovered from their injury.  If an employer assigns an employee a job that they can’t do and there is medical evidence showing that the employee can’t reasonably do that job, the employee has a strong argument that the employer did not make a reasonable accommodation of their disability.

Advertisements