View From the Bench

Workers’ Comp Docket

Significant workers' comp legal decisions from around the country.
By: | March 9, 2015

Temporary Impairment Is a Disability Under Certain Conditions

Martinez v. University Medical Center, No. 2:13-CV-00003-APG-VCF (D. Nev. 01/26/15)

Ruling: The U.S. District Court, District of Nevada denied summary judgment to a medical center on an injured worker’s claims under the Americans with Disabilities Act. The court held that a jury could find that his work-related injuries, although temporary, amounted to ADA-covered disabilities.

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What it means: The ADA Amendments Act provided that an impairment lasting or expected to last six months or less is “transitory.” If the impairment is transitory and minor, it will not likely be considered a disability under the ADAAA.

However, even when an impairment is temporary, it could be a disability if evidence shows that it caused a substantial limitation in a major life activity. Such was the case here, where a worker’s claims advanced even though his impairment was expected to last under six months.

Summary: Questions about whether a warehouse technician’s temporary limitations following an on-the-job injury were substantial within the meaning of the ADA helped the technician defy summary judgment on his disability discrimination claims. According to the court, the employer medical center’s defenses were not enough to keep the technician’s claims from advancing to a jury.

The case arose when the technician experienced a hernia and disk protrusion while lifting boxes in the warehouse. As a result, he was placed on temporary modified duty with no lifting over 10 pounds, no repetitive bending, and no climbing. Although the injury was considered temporary and not lasting more than six months, the court explained that this was not the end of the story.

“A person with an impairment that substantially limits a major life activity … [has a disability] even if the impairment is ‘transitory and minor’ (defined as last six months or less),” the court explained.

The court further explained that a reasonable jury could determine that the technician was subjected to an adverse employment action when he was suspended and transferred following his alleged refusal to perform work. The medical center contended that the technician was on leave for most of the time he was suspended and that the suspension had to do with his failure to show up at a new assignment. The court held that the factual questions did not lend themselves to resolution on summary judgment.

Injured Mill Worker Not Entitled to Assistant as Accommodation

Wilkerson v. Boomerang Tube LLC, No. 1:12-CV-198 (E.D. Tex. 10/14/14)

Ruling: The U.S. District Court, Eastern District of Texas granted in part and denied in part summary judgment to a manufacturer on a worker’s claims under the Americans with Disabilities Act. While the court found insufficient evidence to support the worker’s failure to accommodate claims, there was enough in the record to push his ADA retaliation claims forward.

What it means: The ADA does not require an employer to promote an employee as an accommodation, reassign the employee to an occupied position, create a new position, eliminate essential functions of a job, or assign existing employees or hire new employees to perform abandoned essential functions of a position. In this case, a worker’s suggestions that his employer transfer him to a new position or assign an assistant to help him work did not meet the reasonableness standards in the court’s view. Additionally, an employee does not have to establish his status as a qualified individual to allege an ADA retaliation claim.

Summary: Requests to have work removed from his job or be provided with someone’s assistance to do his job deflated a mill worker’s failure to accommodate claims against a manufacturer under the ADA. Nonetheless, his ADA retaliation claims went forward because the only counter argument the manufacturer raised was that the worker was not qualified for his position, which is not a basis for defeating a retaliation assertion. Thus, the worker, who experienced several on-the-job injuries that resulted in work limitations, advanced past summary judgment.

The case arose when the worker reported that his medical restrictions, which required him not to use his right hand, prevented him from performing several tasks assigned to him. After an exchange with his supervisor in which the worker said that he did not feel safe or comfortable doing mopping or sweeping work, the worker was terminated, prompting his ADA lawsuit.

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The court held that none of the worker’s proposed accommodations, which included having a trainee assist him, having his job restructured so that he could “wipe down walls and fixtures,” and giving him a new position, would allow him to perform the essential functions of his job and also be reasonable.

The worker’s retaliation claims advanced because the manufacturer did not present evidence on whether the worker would have been terminated but for his seeking accommodations and filing a workers’ compensation claim.

Ankle Recovery Undermines Worker’s Lawsuit Against Clinic

Chen v. Ochsner Clinic Foundation and Ochsner Clinic, No. 13-5808 (E.D. La. 2014)

Ruling: The U.S. District Court, Eastern District of Louisiana granted summary judgment to a clinic on a worker’s claims under the Americans with Disabilities Act and state law workers’ compensation law. The court held that he could not establish that he had a disability nor could he show that he was subjected to retaliation for workers’ compensation activity.

What it means: While it is true that in enacting the ADA Amendments Act, Congress sought to make it easier to prove a disability, plaintiffs still must show that they are substantially limited in a major life activity. In this case, a worker had recuperated from an on-the-job ankle injury, and he reported that he had no restrictions. Thus, he could not show that he had an ADA-protected disability.

Summary: Reporting that he was able to return to work without restrictions helped end a worker’s ADA claims against his employer clinic. Not filing suit in time prevented him from pursuing workers’ compensation retaliation claims. Thus, the court granted summary judgment to the clinic, explaining that the worker’s claims, which arose after he experienced an on-the-job ankle injury, did not create triable issues.

The court explained that the worker had to show that he was substantially limited in a major life activity but that he was unable to do so after he recuperated from his injury. When he returned to work, his medical record stated that he had minimal discomfort, no swelling, no discoloration, and no instability. This, along with his own report that he had a full range of motion and did not consider himself to be restricted from working, convinced the court that the worker could not show a substantial limitation in a major life activity.

The worker’s claim under state workers’ compensation law was not filed within a year from his termination, prompting the court to dismiss his claims for lack of jurisdiction.

No Obligation to Give Indefinite Leave of Absence to Injured Worker

Dezham v. Macy’s West Stores Inc., et al., No. SACV 13-1864 (C.D. Cal. 01/02/15)

Ruling: The U.S. District Court, Central District of California granted summary judgment to Macy’s on an injured employee’s claims under the Americans with Disabilities Act. The employee did not present enough evidence to create triable questions as to whether Macy’s stated reasons for terminating her were pretext.

What it means: An employee may be able to show that disability discrimination was her employer’s true reason for terminating her with evidence that the employer’s stated reasons were inconsistent or unworthy of credence. In this case, the employee could not show that the employer’s reasons, which related to the employee’s inability to return to work, were not what actually motivated its decision to terminate her.

Summary: After exhausting her allotment of leave under the Family and Medical Leave Act and being granted an extended leave of absence, a Macy’s sales associate could not establish that her termination was based on her physical restrictions stemming from a foot injury experienced after a fall at work. Instead, the court held that there was no evidence of pretext suggesting that Macy’s stated reasons for terminating her — the associate’s doctor’s opinion that he was unable to give a return-to-work date — were not its true reasons. Instead, the court held that Macy’s had no legal obligation to give the associate an indefinite leave of absence. Thus, the court granted summary judgment to Macy’s.

The doctor opined that the associate was “presently total temporary disabled.” Evidence showed that the associate did not return to work and could not return in the foreseeable future. The court explained that to show pretext, the associate would have to prove either that Macy’s explanation was unworthy of credence due to inconsistencies or by showing that unlawful discrimination more likely motivated Macy’s decision.

The associate claimed that Macy’s incorrectly considered a form filled out by the doctor, but this argument did not “demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions” in Macy’s reasons to lead a jury to find them “unworthy of credence.”

Harassment Complaints, Not Workers’ Comp, Lead to Termination

Muoio v. Costco Wholesale Corp., No. 3:13-cv-44 (SRU) (D. Conn. 01/14/15)

Ruling: The U.S. District Court, District of Connecticut granted summary judgment to Costco on a worker’s claims under the Americans with Disabilities Act and state workers’ compensation law. The court found insufficient evidence that Costco failed to accommodate him or subjected him to retaliation after he filed a workers’ compensation claim.

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What it means: An employer, like the one in this case, may defeat a failure to accommodate claim under the ADA with evidence that it followed a worker’s doctor’s orders. It is possible for a reasonable jury to find a causal connection between the date when an employee exercises his rights under the workers’ compensation program and when he is terminated if the period of time between the two events is “sufficiently close.” In this case, 10 months was too long a gap to show retaliation, particularly because evidence showed that the worker was temporarily promoted during that time.

Summary: A lack of evidence showing that a Costco worker’s termination had to do with Costco’s failure to accommodate him or his worker’s compensation claims rather than allegations of sexual harassment derailed the worker’s claims under the ADA and state workers’ compensation law. In granting summary judgment to Costco, the court held that Costco accommodated his physical restrictions and did not terminate him until 10 months after he filed his workers’ compensation claim.

The case arose when the worker was terminated following a string of allegations that he made inappropriate remarks to and inappropriately touched female coworkers. Prior to this, the worker experienced an injury on the job where he slipped and fell. His doctor placed lifting limitations on him, and evidence suggested that Costco upheld these restrictions.

“The [worker] has failed to offer any evidence substantiating [his failure to accommodate claim]; he did not miss days of work once he received medical clearance, nor was he assigned to an inferior position,” the court reasoned. “Instead, [his supervisor] accommodated [the worker] by allowing him to remain in his pre-injury position with the restrictions required by his physician.”

The gap in time between when he filed the workers’ compensation claim and when his termination occurred showed that the two were not linked in the court’s eyes. Additionally, during the intervening time, he was asked to serve as a temporary supervisor, which the court found inconsistent with retaliation charges.

“The record indicates that Costco subjected [the worker] to adverse employment actions only after serious allegations of misconduct were made against him,” the court held.

Employer May Be Stuck With Later Start Time After Temporary Accommodation

Vale v. Great Neck Water Pollution Control District, No. 14-cv-4229 (ADS)(SIL) (E.D.N.Y. 01/20/15)

Ruling: The U.S. District Court, Eastern District of New York denied a state agency’s motion to dismiss an employee’s claims under the Americans with Disabilities Act after finding enough in her pleadings to support a plausible failure to accommodate claim.

What it means: A request for an accommodation does not have to have a doctor’s backing to be reasonable, and an employer’s prior practice of granting the accommodation might be enough evidence to convince a jury that it is reasonable. In this case, the court refused to dismiss a case where it was not clear whether the employee had to be at work by 8 a.m. or whether the employer had let her arrive at 8:30 a.m. due to her wrist injury.

Summary: A state agency’s permitting an employee to arrive at work at 8:30 a.m. for a period of time left in unable to argue that coming in at a later time was not a plausible reasonable accommodation argument. Instead, the court held that the employee’s failure to accommodate claims should not be dismissed. It reasoned that she “plausibly alleged that the Defendant acquiesced in the Plaintiff’s prior practice of coming into work at 8:30 a.m.” Thus, it was not implausible that a later start time could be a reasonable accommodation for the employee. Even though the employee’s doctor did not indicate this accommodation in his note to the agency, the court explained that this was not enough to dismiss the employee’s contentions.

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The case arose when the employee experienced a wrist injury outside of work that required her to wear a brace from a year. Her doctor informed the agency that she needed to be on light duty and should not carry certain objects or engage in heavy lifting. She also asked for the later arrival time because she said that her wrist made it more difficult for her to get ready in the morning and slowed down her driving as well. In response, the agency applied its policy requiring employees to report to work by 8 a.m.

The court explained that questions raised by the case eluded dismissal.

“A physician’s imprimatur is not necessary for an accommodation request to be ‘reasonable,’” it reasoned. “Whether an accommodation is ‘reasonable’ is more appropriately determined on summary judgment or by the factfinder at trial.”

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]