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Alphonso Myers worked as a security guard and was injured in that position. He applied for and received social security disability benefits. In his application, he advised the Social Security Administration that he was in pain all the time during the period of his application, he could only stand for twenty minutes and could only walk for 10 to 15 minutes. He said sometimes his pain was so severe that he needed to remain at home and lie down. Since 2005 he was unable to lift more than 10 pounds.
While Myers was applying for social security disability benefits, he was also applying or a job withKnight Protective Service for a position as an armed security guard. As part of the post-offer process, Myers indicated he had no relevant disabilities. A supervisor noticed that Myers seemed to be in pain on the job. Myers admitted that he had undergone neck and back surgeries and had recurrent pain. The supervisor became concerned that Myers was not fit for the job of a security guard because someone might grab his weapon or even take him hostage. Myers was told that the company wanted him to pass a fitness examination.
For reasons that are unclear, the company never set up the fitness examination, and Myers felt that he was effectively terminated by the company. He sued under theADA and claimed that he was discriminated against based on disability. The trial court rejected his suit, and Myers appealed. The U.S. Court of Appeals, 10th Circuit, affirmed the dismissal of the law suit.
First, the court said Myers was not able to show that he was qualified for the position that he sought atKnight Protective Service. “As he acknowledged in his written application with Knight, the essential functions of his job as an armed security guard required him to engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.”
The court emphasized that Myers represented to the Social Security Administration that he was in pain frequently and could often only stand for 20 minutes. “When a plaintiff makes seemingly inconsistent statements like those before us he must offer a ‘sufficient explanation’ for the apparent contradiction.” The court made clear that every plaintiff should have an opportunity to explain apparently contradictory statements on a social security application under the case ofCleveland v. Policy Mgmt. Sys. Corp., 526U.S. 795, 805 (AD Cases 941) (1999). But in this case Myers was unable to reconcile his statements to the Social Security Administration with his assertions in court that he could do his job. In fact, there was no dispute that since 2005 Myers had been unable to lift more than 10 pounds.
The lessons from this case are worth remembering. First, there is great value in post-offer medical examinations. Fitness-for-duty examinations are also invaluable, but the mistake the company made in this case was not setting up the examination. Secondly, employers who face workers’ compensation or disability discrimination suits should always pursue the records of any social security application. In the workers’ compensation context, employers who may be confronted with fitness issues should always read the claimant’s statements to the various IME physicians as well as the statements that the claimant makes in court regarding limitations in work or non-work activities. Sometimes claimants make statements in workers’ compensation court or to IME physicians that suggest that the job is continuing to injure them or that they cannot perform the duties of the job safely. All too often this information does not get to the insured.
This case can be found at Myers v. Knight Protective Serv., Inc., U.S. Court of Appeals, Tenth Circuit, No 12-6056 (December 22, 2014).
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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.