On the road again

In this edition of In the Trenches, Acme learns that worker's comp can be a real pain in the back.

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Two types of drivers worked at Acme’s manufacturing plant. The so-called road drivers picked up materials and delivered products at distances greater than 100 miles from the plant and across state lines, as necessary. The city drivers, on the other hand, performed the same function but within 100 miles of the plant. The city drivers also worked at Acme’s dock, loading and unloading trucked freight using a forklift to pick up and deliver loads within the plant.

As a road driver, Jenny Sayquah often sat behind the wheel for six or more hours each day. On one trip, her truck was unable to avoid a particularly rough patch on the shoulder of an interstate highway. The jostling injured her back. A few miles down the road, she suddenly experienced severe back pain and a tingling numbness in one leg. The intensity of the symptoms was sufficient to cause her to pull off the highway and go online to locate the nearest hospital emergency room.

The physicians there diagnosed several disc problems and a spinal fissure. Jenny filed a worker’s comp claim that was granted. The worker’s comp case manager documented that the loss is compensable. Acme didn’t object and classified Jenny as off work due to work-related injury.

Jenny and others must realize that company policies aren’t in place to hinder employees, but to be fair to all.

Four months later, Acme sent Jenny to an independent physician who disagreed with the previous diagnosis and recommended that she return to work without limitation or restriction. Her worker’s comp benefits were terminated and she returned to work, where she stayed for about two years, receiving safe driver awards and positive performance evaluations.

Jenny asked to be switched to a city-driver job, a request that Acme granted. When she started having difficulty getting out of bed each morning, bending over and operating a forklift for an entire shift, she requested a switch back to road driver. Acme denied the move, citing procedures that require an employee to be in the new position for at least one year before being switched again, Jenny’s failure to submit the proper paperwork for the change and that no doctor had placed her on medical restriction.

Jenny was in pain. Shortly thereafter, she received her first reprimand for working too slowly because of it. Jenny’s doctor said Jenny had disc problems and recommended she be put on leave and return later to perform limited work. The doctor also recommended that Acme provide her with a vehicle having special accommodations, freedom from dock work and limited working hours.

Acme requested Jenny provide clarification regarding the special accommodations. Discussions broke down when Acme’s doctor disagreed with Jenny’s doctor’s diagnosis. The case soon followed the same legalistic path so many of Acme cases have traveled in previous months.

How could this situation have been avoided? How does one evaluate differing medical opinions? Should there be a dollar limit on the cost of the special accommodations a worker requires? Is an employer capable of assessing how much pain an injured worker is experiencing?

An academician says:

Sounds like this is a great lawyer case, on which I’m not qualified to pass an expert decision. However, let me make a couple of points. As to the question of whether the employer is capable of assessing pain? The answer is no; that’s really a medical question and should be referred to the medical experts. But what if the medical experts disagree, which isn’t unusual in a case such as this? One way to resolve this problem is to use an Agreed Medical Evaluator, someone approved by both parties, and both parties agree to abide by the AME’s decision. But note there are a couple of conditions here – both parties have to agree on the AME and also have to agree to abide by the AME’s decision. Often the parties won’t accept these conditions and the case will probably end up in court (and the court will probably appoint their own medical evaluator).

Could this have been avoided? Good question. I wonder whether Acme was forcing Jenny to stay in a job that was injurious to her health because of their transfer policy. This, in my mind, violates the “reasonable accommodation” provision in the Americans with Disabilities Act, which would require Acme to make accommodations for the disability and which might include her transfer to the road driver or another position. However, we’re now in a spat between doctors, which complicates the matter. Although we’re not privy to what the doc’s disagreement is all about, I’d be inclined to find the “reasonable accommodation” for Jenny and settle the matter quickly. But again, I don’t pretend to have expertise in cases such as these.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

Back injuries might well be the most vexatious in the entire spectrum of work-related injuries. Nevertheless, Acme seems to have dropped the ball in a couple of respects.

First, if Jenny asked to transfer back to the road driver position but didn’t submit any medical substantiation that she needed the job change for a medical reason, Acme was well within its rights in adhering to its normal policy of not transferring employees who have been in a position for less than a year. Acme also was within its rights in giving Jenny a warning for working too slowly. An employer is entitled to hold every employee to the appropriate performance standards.

But once Jenny’s doctor indicated she needed a leave and then modified duty, Acme had a duty to place her on Family and Medical Leave because of her serious health condition. After the leave, Acme also would have an obligation to reasonably accommodate Jenny and her back condition so long as the accommodation didn’t pose an undue hardship to the company.

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