Court Questions Decision to Fire Injured Nurse

A hospital fired an injured nurse. Now it faces a disability discrimination complaint.
By: | July 24, 2017 • 4 min read

Is an injured nurse a threat to patient safety? That’s what New Jersey-based Saint Clare’s Health System believed.

The nurse in question came back from workers’ comp and disability leave only to be fired. The hospital admitted that the termination of the nurse was directly related to her disability, stating that she could not perform the essential duties of her job.

Further, the hospital argued, she was a danger to other patients because her injuries could prohibit her from completing tasks.

The court disagreed.

Shouldering the Burden

Registered nurse Maryanne Grande worked for Saint Clare’s for seven years before she suffered her first work-related injury in 2007. While moving a patient, Grande injured her left shoulder, resulting in surgery and three months of physical therapy before returning to work on light duty. Grande returned to regular duty one month later.


In November 2008, Grande reinjured her left shoulder lifting the legs of an overweight patient. She underwent a second surgery and returned to regular duty two months later.

Finally, in 2010, Grande incurred her most recent injury. A patient was attempting to walk around his bed but lost his balance. Grande caught the patient, but feared she had injured her shoulder again.

An MRI showed she’d injured her cervical spine instead. Another surgery and four months of recuperation under her belt, Grande returned to work for two hours before tapping out. She finally returned two weeks later on light duty.

In August of 2008, Saint Clare’s human resources department led a hospital-wide job system analyses for various nursing positions.

The analysis helped the hospital determine what frequency with which job duties were performed and which tasks were essential to each position. For RNs like Grande, an essential task was frequently lifting 50 pounds from waist to chest.

Though cleared to light duty work in July 2010, Grande was informed by the hospital that she would need to undergo a physical test set up by Saint Clare’s. Grande reported to Kinematic Consultants, Inc. (KCI), for a functional capacity evaluation.

KCI determined that Grande “demonstrated maximum effort” and said she could return to work but would need certain accommodations. The report noted that final determination for return to work deferred to her own physician. Grande was re-examined by her doctor, and was cleared to work with certain restrictions, including occasionally lifting items up to 50 pounds instead of frequently lifting that weight and only transferring patients with assistance.

The next day, Saint Clare’s fired Grande.

Back and Forth in Court

Grande filed a two-count complaint against Saint Clare’s: the first for unlawful discrimination based on a disability and the second for unlawful discrimination based on a perceived disability. Saint Clare’s filed for a summary judgment to which Grande filed a cross motion. Summary judgment was given to Saint Clare’s based on Grande’s inability to show she could perform her job in a way that met hospital standards.

Grande brought her case before an appellate division panel that reversed the summary judgment, stating that the case contained several disputable facts that only a jury could resolve. Saint Clare’s appealed.

The case was brought before the New Jersey Supreme Court. There, Saint Clare’s argued that because Grande was on light duty at the time of her discharge, and both her physician and KCI reported that she needed certain accommodations to complete her duties, Grande could not prove she was capable of performing her RN duties as outlined by the hospital.


Additionally, Saint Clare’s held that because the KCI report provided evidence that Grande’s continued employment was hazardous to her own safety, her work performance could jeopardize the safety of other employees and patients.

Grande countered that the hospital admitted to firing her due to a perceived disability—a prime example of discrimination, she said.

The New Jersey Association for Justice and the National Employment Lawyers Association of New Jersey filed amicus briefs with the Supreme Court in support of Grande. They argued that Saint Clare’s discriminated against the nurse, improperly assumed that Grande would incur another injury and believed that Saint Clare’s should not have carte blanche to decide the essential functions of a nurse’s job.

The Final Word

Under New Jersey law, employers are prohibited from terminating a disabled employee because of their disability. In this case, the court found that Grande presented a viable discrimination claim.

“When terminating a disabled employee because of an inability to abide by [safety] standards, an employer must prove that its standards relate to the employee’s duties and that no reasonable accommodation exists that will allow the employee to continue in her position,” wrote an associate justice.

The court ruled in favor of Grande, allowing for the nurse to take her trial to court.

Cite: Maryanne Grande, RN, v. Saint Clare’s Health System

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Report: Marine

Crewless Ships Raise Questions

Is a remote operator legally a master? New technology confounds old terms.
By: | March 5, 2018 • 6 min read

For many developers, the accelerating development of remote-controlled and autonomous ships represents what could be the dawn of a new era. For underwriters and brokers, however, such vessels could represent the end of thousands of years of maritime law and risk management.

Rod Johnson, director of marine risk management, RSA Global Risk

While crewless vessels have yet to breach commercial service, there are active testing programs. Most brokers and underwriters expect small-scale commercial operations to be feasible in a few years, but that outlook only considers technical feasibility. How such operations will be insured remains unclear.

“I have been giving this a great deal of thought, this sits on my desk every day,” said Rod Johnson, director of marine risk management, RSA Global Risk, a major UK underwriter. Johnson sits on the loss-prevention committee of the International Union of Maritime Insurers.

“The agreed uncertainty that underpins marine insurance is falling away, but we are pretending that it isn’t. The contractual framework is being made less relevant all the time.”

Defining Autonomous Vessels

Two types of crewless vessels are being contemplated. First up is a drone with no one on board but actively controlled by a human at a remote command post on land or even on another vessel.

While some debate whether the controllers of drone aircrafts are pilots or operators, the very real question yet to be addressed is if a vessel controller is legally a “master” under maritime law.


The other type of crewless vessel would be completely autonomous, with the onboard systems making decisions about navigation, weather and operations.

Advocates tout the benefits of larger cargo capacity without crew spaces, including radically different hull designs without decks people can walk on. Doubters note a crew can fix things at sea while a ship cannot.

Rolls-Royce is one of the major proponents and designers. The company tested a remote-controlled tug in Copenhagen in June 2017.

“We think the initial early adopters will be vessels operating on fixed routes within coastal waters under the jurisdiction of flag states,” the company said.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.”

Once autonomous ships are a reality, “the entire current legal framework for maritime law and insurance is done,” said Johnson. “The master has not been replaced; he is just gone. Commodity ships (bulk carriers) would be most amenable to that technology. I’m not overly bothered by fully automated ships, but I am extremely bothered by heavily automated ones.”

He cited two risks specifically: hacking and fire.

“We expect to see the first autonomous vessel in commercial operation by the end of the decade. Further out, around 2025, we expect autonomous vessels to operate further from shore — perhaps coastal cargo ships. For ocean-going vessels to be autonomous, it will require a change in international regulations, so this will take longer.” — Rolls-Royce Holdings study

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty, asked an even more existential question: “From an insurance standpoint, are we even still talking about a vessel as it is under law? Starting with the legal framework, the duty of a flag state is ‘manning of ships.’ What about the duty to render assistance? There cannot be insurance coverage of an illegal contract.”

Several sources noted that the technological development of crewless ships, while impressive, seems to be a solution in search of a problem. There is no known need in the market; no shippers, operators, owners or mariners advocate that crewless ships will solve their problems.

Kinsey takes umbrage at the suggestion that promotional material on crewless vessels cherry picks his company’s data, which found 75 percent to 90 percent of marine losses are caused by human error.


“Removing the humans from the vessels does not eliminate the human error. It just moves the human error from the helm to the coder. The reports on development by the companies with a vested interest [in crewless vessels] tend to read a lot like advertisements. The pressure for this is not coming from the end users.”

To be sure, Kinsey is a proponent of automation and technology when applied prudently, believing automation can make strides in areas of the supply chains. Much of the talk about automation is trying to bury the serious shortage of qualified crews. It also overshadows the very real potential for blockchain technology to overhaul the backend of marine insurance.

As a marine surveyor, Kinsey said he can go down to the wharf, inspect cranes, vessels and securements, and supervise loading and unloading — but he can’t inspect computer code or cyber security.

New Times, New Risks

In all fairness, insurance language has changed since the 17th century, especially as technology races ahead in the 21st.

“If you read any hull form, it’s practically Shakespearean,” said Stephen J. Harris, senior vice president of marine protection UK, Marsh. “The language is no longer fit for purpose. Our concern specifically to this topic is that the antiquated language talks about crew being on board. If they are not on board, do they still legally count as crew?”

Harris further questioned, “Under hull insurance, and provided that the ship owner has acted diligently, cover is extended to negligence of the master or crew. Does that still apply if the captain is not on board but sitting at a desk in an office?”

Andrew Kinsey, senior marine risk consultant, Allianz Global Corporate & Specialty

Several sources noted that a few international organizations, notably the Comite Maritime International and the International Maritime Organization, “have been very active in asking the legal profession around the world about their thoughts. The interpretations vary greatly. The legal complications of crewless vessels are actually more complicated than the technology.”

For example, if the operational, insurance and regulatory entities in two countries agree on the voyage of a crewless vessel across the ocean, a mishap or storm could drive the vessel into port or on shore of a third country that does not recognize those agreements.

“What worries insurers is legal uncertainty,” said Harris.

“If an operator did everything fine but a system went down, then most likely the designer would be responsible. But even if a designer explicitly accepted responsibility, what matters would be the flag state’s law in international waters and the local state’s law in territorial waters.


“We see the way ahead for this technology as local and short-sea operations. The law has to catch up with the technology, and it is showing no signs of doing so.”

Thomas M. Boudreau, head of specialty insurance, The Hartford, suggested that remote ferry operations could be the most appropriate use: “They travel fixed routes, all within one country’s waters.”

There could also be environmental and operational benefits from using battery power rather than conventional fuels.

“In terms of underwriting, the burden would shift to the manufacturer and designer of the operating systems,” Boudreau added.

It may just be, he suggested, that crewless ships are merely replacing old risks with new ones. Crews can deal with small repairs, fires or leaks at sea, but small conditions such as those can go unchecked and endanger the whole ship and cargo.

“The cyber risk is also concerning. The vessel may be safe from physical piracy, but what about hacking?” &

Gregory DL Morris is an independent business journalist based in New York with 25 years’ experience in industry, energy, finance and transportation. He can be reached at [email protected]