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August 28, 2011

Return to Work Decisions on a Worker’s Comp Claim

Summary:

The evaluation employers must make regarding an employe's potential return to work under the workers' compensation system is fundamentally different from the reasonable accommodation analysis mandated by the Fair Employment and Housing Act (FEHA). A precedent-setting decision in Cuiellette v. City of Los Angeles reinforces that even when a workers' compensation claim is managed and resolved perfectly, employers may still be at risk for a discrimination lawsuit when they fail to follow the separate Fair Employment and Housing Act process requirements.

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Such Decisions Are Entirely Separate From Your Reasonable Accommodation Process Under Disability Discrimination Laws

The evaluation employers must make regarding an employee’s potential return to work under the workers’ compensation system is fundamentally different from the reasonable accommodation analysis mandated by the Fair Employment and Housing Act (FEHA). A precedent-setting decision in Cuiellette v. City of Los Angeles reinforces that even when a workers’ compensation claim is managed and resolved perfectly, employers may still be at risk for a discrimination lawsuit when they fail to follow the separate Fair Employment and Housing Act process requirements.

A Los Angeles Police Department officer was injured and placed on disability leave. His workers’ compensation claim was resolved with 100% disability rating. He later expressed interest in returning to the police department to work in fugitive warrants unit, where he was uniquely qualified by prior experience. His treating physician wrote that he could perform “permanent light duty — administrative work only.”

The note did not specify any restrictions. The City assigned him to the court or renditions desk in the fugitive warrants unit. At that time, the City had an “informal” policy and practice of allowing sworn officers to perform “light duty” assignments that did not involve several of the essential functions of a peace officer. The City decided to send him home when a workers’ compensation claims examiner advised that the Los Angeles Police Department could not reasonably accommodate an officer who was designated through workers’ compensation as “100% disabled.”

He sued under the Fair Employment and Housing Act, alleging failure to engage in a good faith interactive process and failure to reasonably accommodate.

Initially, a judge threw his claim out on summary judgment, but the appeals court overturned because the 100% total permanent disability rating was not, as a matter of law, a legitimate nondiscriminatory reason for the adverse employment action. A jury then awarded him $1,571,500.

On an appeal following the verdict, the appellate court again ruled that the 100% disability rating did not absolve the City from its Fair Employment and Housing Act obligations. The Court concluded: “The testimony that no one could recall placing an officer with a 100% disability on ‘light duty’ is beside the point because workers’ compensation and the FEHA require separate inquiries. For the Fair Employment and Housing Act, the question is whether (his) medical restrictions prevented him from performing the essential functions of the position that he held or that he desired to fill. In this case, plaintiff proved that he could.”

Accordingly, the City should have evaluated whether he could perform the essential job functions of the position in the fugitive warrants division (desk job), and not his duties as a police officer.

The Cuiellette case underscores yet again the importance of adopting and consistently enforcing a Structured Return to Work Program The objectives of a structured program are typically to return employees with temporary work restrictions as soon as possible to a transitional assignment that is within their medical restrictions. Transitional work assignments are typically temporary assignments that assist the employee in returning to work from an industrial injury or illness at a level they are physically capable of performing until they have reached maximum medical improvement. Workers released to full duty can return to their regular job. If there are permanent work restrictions, employers must conduct an interactive process with that employee to evaluate whether those restrictions can be reasonably accommodated on a longer term basis.

California case law is quite clear that a structured transitional work program, when carefully crafted and consistently enforced, protects against a temporary light duty assignment being converted to permanent modified duty job. By spelling out the terms and conditions of the structured program in writing, it removes ambiguities about the employer’s expectations, establishes specific timelines for follow up and avoids the potential that the worker will remain in a transitional position long enough to argue that it is permanent. It is especially helpful to periodically review the effectiveness of the transitional assignment when changed circumstances occur such as adjustments to the worker’s restrictions, changes to the mix of essential and marginal job functions, or ongoing business needs.

Employers that don’t enact and enforce a structured program (or who informally provide light duty to certain employees) risk converting temporary fixes into a permanent accommodation. As the Cuiellette case now makes clear, the principles and practices for a structured return to work program can — and should — be applied to employees with both temporary and more long term (even permanent) work restrictions.

Authors
Stu Baron collaborated with Patricia S. Eyres in writing this article. Patti Eyres is the Employment Law Partner for Stuart Baron & Associates and CEO/Publisher of Proactive Law Press, LLC.

This article is an excerpt from the July 2011 edition of From The Hotline published by Stuart Baron & Associates and Workers’ Compensation Claims Control. It is used with permission under the copyright of Stuart Baron & Associates.

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About the Author

Stu Baron is a nationally recognized expert on managing workers’ compensation claims. He is both President of Workers’ Compensation Claims Control and a principal in the law firm of Stuart Baron & Associates. Stu has been heavily involved in advocacy in Sacramento. He is quoted frequently by major workers’ compensation and trade journals.

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