State News : New Jersey

One of the most difficult issues for employers to deal with is the work injury which leaves an employee with lasting difficulties in performing job duties.  Employers encounter this frequently with occupational claims such as carpal tunnel or epicondylitis where the employer settles the compensable workers’ compensation claim and then places the employee back in the same job that caused the medical problem, sometimes with reasonable accommodations and sometimes not.

An interesting case on this theme is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado, 906 F.3d 900 (10^th Cir. 2018).  In that case, the plaintiff was a health inspector for the County and broke her right arm on the job, leading to two surgeries.  To compensate for her injury, she used makeshift devices for lifting, moving, and opening objects.  She even learned how to write using her non-dominant hand.  Inspections took her much longer than before, and she got fewer done in a day.

Plaintiff received a poor performance evaluation in March 2012 for a variety of reasons, partly because she was behind in her work.  She met with supervisors and HR to discuss job modifications.  Her workers’ compensation doctor prepared a report setting forth her job restrictions.  The County decided to offer her a part-time office job.  Plaintiff did not like the work.  She was paid the same as she had been making pre-injury by a combination of workers’ compensation benefits and salary.

Plaintiff returned to her workers’ compensation physician on June 6, 2012, and the doctor set permanent restrictions.  She met again with HR and supervisors.  Plaintiff suggested various accommodations, including piecing together various job functions from several jobs into one job.  All of her requests were rejected.  There was a dispute over whether the County asked her to submit a letter of resignation or not, but plaintiff did submit one effective June 29, 2012.  She wrote, “After a final evaluation with the physician and meeting with management it is apparent I am no longer able to perform the duties in my job description.”

The County disputed some of the allegations in the ensuing law suit.  The County said that plaintiff had been complaining about pain she was suffering in doing her job in March 2012 even before she saw her workers’ compensation doctor.  The County said it considered first reducing her time in the field on tasks which caused her pain.  Ultimately the County proposed the part-time office job.  The County also claimed that plaintiff requested a new position be created for her, which the County refused to do.  The County witnesses said they were rather surprised when plaintiff submitted the letter of resignation because they considered that they were still deep in the interactive process.

In plaintiff’s law suit, she alleged that the County violated the ADA because if failed to reasonably accommodate her disability and failed to engage in the interactive process.  The jury found that the County should prevail because plaintiff had not proven that she was discharged from employment or suffered other adverse action.  The jury accepted the County’s position that placing plaintiff in a temporary half-time office job with full pay supplemented by workers’ compensation was reasonable, noting that plaintiff agreed with the change; further, the County took no adverse action against plaintiff because she voluntarily resigned.

The plaintiff argued that all failures to accommodate are adverse employment actions.  Plaintiff’s counsel cited some case law for the proposition that an adverse employment action occurs when an employer refuses to make reasonable accommodations.  The Tenth Circuit Court of Appeals disagreed:

In this case the County argued to the jury that Plaintiff suffered no adverse employment action because it did not do anything negative to her.  Because of her physical limitations, it had given her a part-time office job with the same pay (when workers’-compensation benefits are included).  When she asked for the County to create a new position for her, it denied her request but, according to testimony it presented, it did not fire her or make any other changes in her employment status.  And County employees testified that they were planning to continue to look for ways to accommodate her.  We are not willing to say in these circumstances that an employer’s failure to immediately accommodate a request by a disabled employee is in itself an adverse employment action.

The case illustrates how difficult it is for an employer to deal with the problem that arises when an employee has a work-related condition that makes it difficult to perform essential job functions.  This employer did not do an FCE or perform a fitness-for-duty examination with analysis of the job functions.  That is often very helpful in similar situations.  But the employer in this case did try to make a reasonable accommodation for months.  The fact that damaged the plaintiff’s case the most in this case was her writing of the resignation letter when the requested accommodation of a new position was not granted by the employer.  That ended the interactive process summarily, and the general rule is that the party who ends the interactive process is the one that most often loses the law suit.

On December 18, 2018, a petition for rehearing en banc was granted in this matter, so we may be hearing more on this case in the near future.

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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.