State News

One of the challenges for employers is determining when a fitness-for-duty examination can be required and when it cannot be.  This issue sometimes flows from a workers’ compensation case following a long period of absence but also emerges in other situations unrelated to workers’ compensation.  In Margaret Wright v. Illinois Department of Children and Family Services,798 F.3d 513 (7^th Cir. 2015), the issue arose from conduct that the employer thought was grossly inadequate. 

Margaret Wright worked as a caseworker at the Peoria Illinois Field Office for 25 years.  In 2005 she became the caseworker for CPL, a 10-year-old ward of the Department, who resided at the Rice Child and Family Center.  Following an incident at Rice, Dr. Costa interviewed CPL and determined that Wright had caused CPL to go into a frenzy because she told CPL that there were four foster families available to her in spite of the fact that CPL was not yet on the foster-care list due to her emotional problems.  CPL then refused to take her medications and said she no longer had to listen to anyone because she was leaving Rice.  CPL incited a riot in her unit during which children threw and broke furniture and attempted to attack the staff.

Dr. Costa concluded that Wright’s conduct posed a risk to CPL.  He issued a medical order preventing Wright from having further contact with CPL and the Department removed Wright from the case. Wright filed a grievance and issues arose regarding Wright’s conduct over the years.  Costa backed up his recommendations with a letter stating that he felt Wright’s mental health needed to be assessed.  Rather than issue a reprimand, the Department chose to require the mental status examination, asserting that Ms. Wright had a history of defiance to all levels of management; she had been verbally abusive in the past and had an abrasive manner with foster parents.   Wright refused to attend the fitness examination and filed a grievance.  Eventually, she agreed to go to the examination but refused to answer the doctor’s questions.  Instead she questioned the doctor on why an evaluation was ordered of her in the first place.

Wright was suspended and took vacation time. During the period of suspension, she contacted the State Employees’ Retirement System to determine the impact that quitting or being discharged would have on her pension.  She learned that she was eligible to retire with a reduced pension.  She then submitted her retirement effective September 30, 2007. After she retired, Wright sued her former employer for violating her rights under the ADA and for constructively discharging her. 

After two lengthy trials, the case proceeded to the Seventh Circuit Court of Appeals. The Court first referred to EEOC Guidance stating that an examination is job-related and consistent with business necessity when an employer has a reasonable belief based on objective evidence that a medical condition will impair an employee’s ability to perform essential job functions or that the employee will pose a threat due to a medical condition.  It said that fitness exams can be justified when an employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties, but it is not enough that an employee’s behavior is annoying or inefficient. 

The Court decided against the Department in this case.  “In our view, the district court correctly determined that the evidence submitted at trial was insufficient to establish, as a matter of law, that requiring Ms. Wright to undergo a fitness-for-duty evaluation was consistent with business necessity. The Court focused heavily on the different way in which Wright was treated from other employees who were required to attend fitness examinations.  In those other cases, the employees were placed on desk duty pending the examination.  In this case, when Wright was instructed on June 4, 2007 to attend a fitness examination, she was not placed on desk duty.  In fact, she was assigned a new case which turned out to be a sensitive one.  One department employee testified that it did seem contradictory to assign a new and sensitive case to someone whose mental status was being questioned.

The Court concluded, “The evidence presented at trial supports a finding that the Department did not believe that Ms. Wright posed a safety risk to the children with whom she worked and, instead, that it considered her competent to continue working with approximately two dozen children. Given this evidence, a reasonable jury could determine that Ms. Wright’s fitness-for-duty examination was not, in fact, consistent with business necessity.”

The case is important because it shows how courts will evaluate whether an employer has met the job-related and consistent with business necessity standard.  The court will look at how the employer treated the employee in question during the time of the fitness examination and in relation to how other employees have been treated when required to attend fitness examinations. Since the basis for the examination of Wright was an alleged direct threat of harm to others, it made no sense that Wright continued to handle her cases and got a new and sensitive case to work on. While Wright prevailed on this aspect of her case, she lost her constructive discharge claim because the Court believed that she retired in the end mainly because she found out that early retirement was available to her, not because of the conduct of the Department.

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 John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com. 

The Appeals Panel has set a very high bar for relief from a benefit dispute agreement. A day before
a CCH, the claimant and the carrier, both represented by attorneys, entered a benefit dispute
agreement to resolve extent of injury, disability, and bona fide offer of employment issues. An
earlier CCH had already been continued to allow time for an RME to take place. The RME had
occurred, but subpoenas for medical records were still outstanding. After the benefit dispute
agreement was finalized, the carrier received the subpoenaed medical records that revealed extensive
preexisting conditions that had not been disclosed by the claimant.
The carrier sought relief from the benefit dispute agreement based on the claimant’s fraud in lying
to the DD and RME doctor regarding his prior history of injury. The Hearing Officer agreed, and
found that newly-discovered evidence constituted good cause for relieving the carrier from the
effects of the benefit dispute agreement. The RME doctor testified that she would have reached a
very different conclusion had she reviewed the records showing extensive preexisting injury.
The Appeals Panel disagreed and reversed the Hearing Officer. The Appeals Panel held that the
evidence was not “newly-discovered,” because the carrier knew that there were additional medical
records before entering the benefit dispute agreement. That is, the carrier had subpoenaed records
before entering the agreement, and thus, the carrier was aware that there was additional evidence
in existence. The Appeals Panel did not address the claimant’s fraud in lying to the DD and RME
doctors, but noted that the carrier’s allegation of fraud was also based on the “newly-discovered
evidence,” and was apparently excused by the carrier’s lack of diligence in obtaining those records.
Appeal No. 151634, decided October 6, 2015.

“Emoticons” (the little happy and sad faces made of punctuation) and “emojis” (a picture version
of emoticons) that we use in text messages and Facebook posts from time to time, are now being
used as evidence in court. Does something make you happy or sad? This could be relevant to
determining if you’re liable under the law.
In the criminal context, a Kentucky woman was accused of harming her child and attempted to show
that she loved her child (and thus could not be guilty) by showing the jury tweets about her child’s
condition with a crying face emoji. In the civil litigation context, use of emoji has been used to
show intent in contract disputes. A “:P” was a successful defense in a defamation suit to show that
the comments were clearly a joke.
Courts in various jurisdictions have allowed introduction of emojis as evidence. However, just
because emojis are admissible does not mean they necessarily prove anything. Remember the
Kentucky mother? She’s now sending her crying faces from a jail cell.

Effective February 1, 2016, Fentanyl transdermal patches and MS-Contin will have their status
changed to “N.” Beginning February 1, 2016, prescriptions for either of these drugs will require
preauthorization.

Many companies in Texas elect to opt out of workers’ compensation. Oklahoma recently allowed
companies to do the same, and both South Carolina and Tennessee are considering similar statutory
changes. A Dallas attorney, along with a coalition of executives from some of the country’s biggest
employers, is campaigning for similar changes in a dozen states.
An investigation by NPR and ProPublica found that the employee benefit plans of the opting-out
employers lower worker benefits, with little to no oversight. Gone is the lifetime medical care
promised by the workers’ compensation system. Many injuries that are covered under workers’
compensation, such as infections and carpal tunnel syndrome, would receive no benefits under the
employee benefit plans. Under these plans, employers are able to direct medical care by selecting
the treating doctor, and in some cases, accompany the injured worker to all treatment appointments.
Reporting deadlines can be shortened to as little as end-of-shift or 24 hours, versus the 30-day
reporting window under workers’ compensation.
If any of this sounds familiar, it should; this is the broken system that worker’s compensation was
created to fix.

The Division of Workers Compensation has brought on a few new Hearing Officers. Travis Dupree
has joined the Midland Field Office, and will be covering Abiline and San Angelo as well. Mr.
Dupree is a 2007 graduate of the Mississippi College School of Law and has been licensed to
practice law in Texas since November of 2008. Amanda Barlow has joined the Dallas and Fort
Worth Field Offices. Ms. Burgess earned her J.D. in 2007 from Texas Wesleyan University. Three
new Hearing Officers will be joining the Houston West Field Office and assisting with the
Beaumont Field Office. Robin Burgess, a 2004 graduate of the City University of New York School
of Law, has been licensed in Texas since April of 2012. Early Moye finished law school in 1987
at the University of Houston. Francisca Okonkwo attended Texas Southern University and comes
to the Division from the Texas Attorney General.

A Houston area practitioner, Dr. Rezik Saqer, has been charged with operating illegal pill mills. Dr.
Saqer runs two pain management clinics in the Houston area. One of Dr. Saqer’s patients was
charged with intoxication manslaughter for a fatal crash that killed a family of four in Montgomery
County, Texas. An investigation into the crash, where oxycodone and valium were found, led
investigators to Dr. Saqer.
When searching Dr. Saqer’s clinic, Integra Medical Clinic, they found illegal quantities of opiates.
Investigators also found evidence that he would pre-sign prescriptions and treatment notes, allowing
his patients to be seen by unlicensed individuals. Dr. Saqer’s license to practice medicine has been
suspended due to this continued practice, on the basis that it poses a risk to public welfare.

The Division is accepting comment through November 9th on proposed Rule changes to Labor Code
Section 408.103 from the 84th legislature. Now, to be eligible for the higher (75%) rate of TIBs
during the first 26 weeks, a worker’s wages must be below $10.00 per hour instead of the current
$8.50. The proposed changes to Rules 129.3 and 129.11 implement this statutory change. The
amended rules will apply to injuries on or after September 1, 2015.

In a ruling that many might find counterintuitive, a New Jersey court has ruled that an adult dancer
is an employee of the establishment where she danced, and not an independent contractor, for
purposes of workers’ compensation. The court found that the establishment had the right to exercise
control over the injured worker. Despite the fact that the injured worker was free to set her own
schedule and worked solely for tips, she “was not free to come and go as she pleased” once her shift
began, and she “was required to perform both pole and couch dances.”

A controversial deal between the Travis County District Attorney’s Office and Texas Mutual
Insurance Company has been suspended. Going back to at least 2000, Texas Mutual has paid the
DA’s office to prosecute “crimes committed against the company,” such as fraud. Under the
arrangement, investigators directly employed by Texas Mutual gather information and provide a
referral to the DA. The controversy surrounds the fact that only crimes committed against Texas
Mutual, and not all insurers, are being pursued. In 2014, payments from Texas Mutual to the DA’s
office totaled $430,000.