On the road again

June 2, 2010
In this edition of In the Trenches, Acme learns that worker's comp can be a real pain in the back.

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.


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
[email protected]

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.

One of the accommodations mentioned appears to be a costly one: a specially equipped vehicle. These are the most difficult questions under the Americans with Disabilities Act — how much money must an employer spend on special equipment to accommodate a disabled employee? One factor that goes into this analysis is the size of the employer.

Two of the other accommodations, limited working hours and no dock work, pose issues of another sort. How disruptive would these accommodations be to Acme? Are other employees available to do the dock work Jenny otherwise would do, absent her back condition, and to accomplish her work during the hours she didn’t work? These are issues that need to be explored to determine if Acme is required to grant Jenny the requested accommodation. But Acme at least had a duty to place Jenny on leave and to explore the accommodation issues with her when she was released to return to work.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
[email protected]

A plant engineer says:

This situation could have been avoided if Jenny would have just stayed on her existing job. Everything was going just fine after her first injury and she had almost two years of positive performance evaluations to prove it. When Jenny asked to move, she should have been aware of the company policy requiring an employee to be in a new position for a year before asking for a switch. Jenny also should have known that the job she requested was more physically demanding than her current position. Jenny and others must realize that company policies aren’t in place to hinder employees, but to be fair to all. When she moves out of a position and another person fills that position, would Acme be “right” to move someone out to allow Jenny back in? That really isn’t fair to the employee working in Jenny's old job. If a position is open in Jenny's old job, then shame on Acme for not letting Jenny back into her old position.

Different medical opinions are always difficult to evaluate. Companies and individuals seek medical opinions from medical professionals and opinions are what they get. As much as engineers, lawyers and educators vary in their respective fields, so will medical professionals. The employer and employee are left to sort it out. Then, another professional is sought out for their legal opinion. If the opinion isn’t satisfactory, then the opinion of a judge or jury is sought. Can anyone win? Acme honored Jenny's request to move to the city-driver job. Jenny should show the same honor by not expecting Acme to pay the cost for Jenny's bad decision to move to the more physically demanding job of city driver. Of course, any decision we make today that turns out bad for us can’t be our fault. Someone else must pay the cost or suffer the consequences for our decisions. When Jenny took the job as a city driver, she wasn’t on any medical restrictions

Why should Acme pay for or bear the cost for modifications to equipment or job tasks for someone who was healthy when they took the job and didn’t have an injury on that job?

There should be a dollar limit on any special accommodations a worker requires. We must learn that there are certain things that certain individuals can’t do. To expect companies to bear the cost to allow them to isn’t reasonable.

Jeffrey L. Strasser
Bacova Guild
(540) 863-2656
[email protected]

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