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Workers’ compensation claims often lead to complex disability discrimination law suits, and the recent New Jersey Supreme Court case of Grande v. Saint Clare’s Health System (A-67-15) (July 12, 2017) provides a good example of this. The case concerned the termination of a registered nurse by the hospital following a series of work-related injuries involving the nurse.
Maryanne Grande was employed by St. Clare’s from 2000 to July 2010. Her job tending to stroke victims involved maintaining charts, administering medications, providing general care, assisting patients with daily living activities such as washing, bathing, dressing, walking, repositioning patients in bed, and guarding them against falls.
In August 2008, St. Clare’s performed a job system analysis for various nursing positions, resulting in a description of the frequency that nurses performed certain tasks. In the year prior to the job analysis, Grande injured her left shoulder while repositioning a patient in bed. This led to surgery with a three month recovery period at home before returning on a light-duty basis, followed by full duty status in a month.
In May 2008, Grande was repositioning a patient in bed and felt pain in her right shoulder this time. An MRI showed no serious abnormality. But in November 2008, Grande reinjured her left shoulder again while lifting the legs of a 300-pound patient. She underwent a second surgery and returned to full duty approximately six months after the accident.
In February 2010, Grande was caring for an overweight patient. The patient began to fall, and Grande grabbed the patient’s shoulders from behind, injuring her neck. She had surgery on her neck and was out of work four months. On her first day back to work, she left after four hours due to pain. Two weeks later she returned to full-time, light-duty work.
In early July 2010, Grande’s physician, Dr. Joel Spielman, cleared her to return to full-duty work, but the hospital required her to attend an FCE. The FCE professionals understood that her job required her to push, pull and lift from waist to chest frequently (34-66% of the time). She was able to perform these functions occasionally (1-33% of the time). The report documented “mild residual functional issues” but concluded that “it is improbable that this will significantly affect job performance ability.” Given the recent neck surgery, the FCE report suggested that Grande be permitted changes in activities during periods of prolonged or repetitive neck movements. Finally, the report suggested that Grande “seek appropriate assistance with heavier physical activities such as patient transfers, guarding ambulatory patients or handling loads” greater than 50 pounds. She was cleared for medium category work (occasional lift and work up to 50 pounds). The FCE report also deferred to Grande’s treating physician, Dr. Spielman.
Dr. Spielman took contradictory positions in the case. As noted above, his first note approved full-duty return to work before any FCE was done. On July 21, 2010, following the FCE, Dr. Spielman approved Grande to return to work with restrictions as outlined in the FCE. He advised that Grande needed permanent restrictions of lifting up to 50 pounds occasionally and should transfer patients with assistance only.
The hospital proceeded to terminate Grande’s employment because the hospital concluded that she could not perform the essential functions safely. Grande then saw Dr. Spielman again, and this time Dr. Spielman pivoted back to his original note, stating that Grande had no restrictions any longer. St. Clare’s had already terminated Grande and refused to rehire her. The Court ignored Dr. Spielman’s last note because it was issued after Grande had been fired.
Grande sued alleging discrimination based on disability under the New Jersey Law Against Discrimination. The trial court granted St. Clare’s motion for summary judgement. A divided Appellate Division panel reversed. The New Jersey Supreme Court ultimately agreed with the Appellate Division. The Court examined the two main reasons that the hospital terminated Grande. First, the hospital argued that Grande had chronic and excessive absenteeism. In the prior three years, Grande had been out of work for about a year. But the Supreme Court noted that there were issues of fact whether Grande’s absences were sufficiently “chronic and excessive.”
The second reason advanced by St. Clare’s was that the FCE supported its position that Grande could not safely perform the essential job functions. The Court rejected this as well, stating that there was no consistent understanding of the essential job functions. The 2008 St. Clare’s Job Analysis showed that RNs must lift fifty pounds from waist to chest frequently (34% to 66% of the day). It also reflected that there was no activity that is performed at a frequency greater than 66% of the time.
The Court examined the FCE results carefully. It became apparent to the Court that there was an inconsistency between the 2008 Job Analysis and the testing standards of the FCE. The 2008 Job Analysis required lifting 50 pounds from waist to chest frequently. The FCE understood that a nurse must lift 20 pounds constantly, 67% to 100% of the time. There was no requirement for constant lifting in the Job Analysis. Additionally, the FCE understood that there was an occasional requirement of lifting of up to 100 pounds, which did not appear in the Job Analysis at all. In essence, the FCE assumed almost constant lifting, and sometimes at much higher weights, than the 2008 Job Analysis. The FCE referred to a job analysis received from the hospital, but it did not appear to be the 2008 Job Analysis. For her part, Grande said both the 2008 Job Analysis and the FCE criteria were wrong: she contended that the actual physical aspects of her job were less onerous and that she could do the job.
The Supreme Court also noted that the FCE cautioned that the results “may be compatible with mild residual functional issues,” but “it is improbable that this will significantly affect job performance ability.” This language did not support the termination of Grande at all. The FCE deferred to Dr. Spielman, who wrote his second report incorporating the conclusions of the FCE. In essence, Dr. Spielman embraced the FCE recommendations.
Finally, the Court noted that the hospital was concerned about Grande’s potential to injure patients. She had never actually injured any patient when she was injured on the job previously, and the FCE report only recommended that Grande be assisted in lifting more than 50 pounds, notwithstanding that she was able to lift over 100 pounds during testing. St. Clare’s produced no expert indicating that there was a material risk of harm to herself or patients if she returned to work.
The Supreme Court affirmed the dismissal of summary judgment for the hospital and remanded the case for trial. The case is of great importance because the use of FCEs is widespread in New Jersey in helping employers determine whether to return employees to work following work injuries or non-work medical conditions. The issue in this case arises quite often, namely a disagreement over the essential job functions. In this case the hospital did have a good job analysis, but somehow that requirements in the 2008 Job Analysis did not coincide with the requirements of the FCE. Further, the hospital seemed to have reached too far in concluding from the FCE that the employee could not do her job.
What should employers and FCE companies do when an employee disagrees with the essential functions? One idea is to have a document that clearly records the essential functions which has been signed off by the employer and the employee. Getting all parties on the same page would eliminate the main objection in countless situations over what is and what is not an essential job function. FCEs are extremely helpful because they provide scientific data on what an employee can physically do, but if the test does not replicate the job duties, then the test if invalid. More time should be put into confirming the essential functions and then confirming with the employee that he or she agrees with those functions. Creating a sound list of essential functions is critical, and there are companies who can visit work sites and document the essential functions.
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 email@example.com.