May 1, 2017; The Odd Intersection of ADA and WC; WCRI Stat-Rate Confirms IL WC and Other States WC Costs Are Dropping; Happy Anniversary!! and more

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Synopsis: How ADA and Workers’ Comp Interact and Sometimes Oddly Intertwine.

 

Editor’s comment: At the suggestion of one of our readers, I want to provide some thoughts on this federal ADA or Americans with Disabilities Act and typically state-run work comp concepts. Sometimes they work in unison and harmony, sometimes the results are odd.

 

The purpose of Title I of the Americans with Disabilities Act (ADA) was to prevent U.S. employers from discriminating against current or prospective employees based on disability. The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, by President George H.W. Bush and has been in place with a couple of ruffles for about 27 years.

 

On the other hand, state workers’ compensation laws were intended to provide a mechanism for the prompt and fair resolution or litigation of employee claims against their employers for occupational injuries and diseases.

 

The ADA and Workers’ Compensation laws generally coincide to provide somewhat different protections and benefits. However, when an employee seeks relief under both sets of laws, various complications can arise. To address these issues, the United States Equal Employment Opportunity Commission (EEOC) regularly issues their so-called “Enforcement Guidance” on the ADA and how they feel it may impact workers’ compensation laws.

 

Work-Related Injuries/Disease May Not Represent an ADA “Disability”

 

An “injured” employee eligible for Workers’ Compensation benefits is not necessarily “disabled” for the purposes of ADA protection. Under the ADA a “disability” may be one of three things:

  • A physical or mental impairment that substantially limits a major life activity;
  • A record of such an impairment; or
  • Being regarded as having such an impairment.

 

In other words, a worker who suffers a work-related injury or impairment might be entitled to receive Workers’ Compensation benefits but the injury or illness may not rise to the level of “substantially limiting a major life activity,” and therefore may not qualify for ADA protection.

 

A Work Injury or Disease May Become “Regarded as” a Disability

 

Suppose an employee suffers a spinal injury on the job. If the injury is temporary and does not substantially limit a major life activity, it would not also be an ADA disability. However, if the employer refuses to let the injured employee return to his position at work, the employer may have effectively “regarded” the employee as “having such an impairment,” or disability, potentially bringing the injury within the ADA definition. In such a case, the employer’s refusal to allow the employee to return to his job may violate the ADA.

 

Thus, although an applicable workers’ compensation statute may not require the employer to require the injured employee to return to work, the ADA might. Accordingly, the employer’s treatment of the injured employee could create liability against the employer based on both a workers’ compensation claim and the federal ADA.

 

Making Careful Pre-Hiring Inquiries Which Fulfill Both Workers’ Comp Laws and the ADA

 

Since the ADA was passed in 1990, the EEOC and the courts have attempted to clarify the interaction between work comp and the ADA. In 1996, the EEOC issued a set of “guidelines” to describe several questions and answers about the relationship between the two sets of laws.

 

When hiring new workers, an employer might wish to ask applicants whether they already have existing occupational injuries or workers’ comp claims in an effort to be mindful of future or potential workers’ comp claims. However, such questions might conflict with the ADA’s prohibition on discriminating against prospective employees due to a disability. The EEOC guidelines state an employer may make some Workers’ Compensation-type inquiries of applicants that will also satisfy the ADA, provided some requirements are met.

 

Post-Offer Workers’ Compensation related inquiries must be:

  • Asked after a conditional offer of employment is made but can be asked before actual employment has begun; and
  • Asked of all entering workers of the same job category.

 

If these requirements are met, the employer may inquire about prior workers’ comp claims or work-related injuries or may require medical exams to obtain information about the existence or nature of the prior work injury.

 

Unions Typically Hate ADA and May Try to Refuse/Block Reasonable Accommodation for Their Members

 

In Illinois workers’ comp, we have seen union representatives write letters “To Whom It May Concern” outlining their unusual position that all of their union members have to fully recover from any injury or illness to be returned to work at a union position. Unions stewards and leadership will literally work to block anyone from returning a union worker where they have any permanent restrictions. We typically see this done in an effort to guarantee expensive wage loss differential claims where a worker might be able to return to a union job in a permanent light duty capacity, as ADA contemplates.

 

The odd or unusual part of a union taking such a position is the idea of blocking a worker from returning to union labors due to a restriction is ADA is designed to force employers to do what the unions are trying to block! The reason I characterize this situation as unusual is the employee could care less about what ADA wants—the federal statute is disregarded and enforcement is tentatively blocked to allow the employee to cash in on six- and seven-figure settlements.

 

Refusal to Bring Government Workers Back to Available Light Work is Almost Criminal From The Perspective of Taxpayers

 

One shocking aspect of ADA occurs in the government sector where police, firefighters, prison guards and other workers suffer serious or life-changing injuries or illnesses that might make it difficult for the admittedly injured worker to return to their former position. In such settings, we don’t typically see ADA being used or followed to have the State of Illinois, county, municipality or other government bring the police officer, firefighter or other worker back to a sedentary or light position when such positions regularly open up.  

 

Instead, the worker is provided a going away party and perhaps a parade when they are awarded substantial workers’ comp benefits for “loss of trade” along with lifetime line of duty disability pensions. On top of this, they are either given personal lifetime health care coverage or in some cases, lifetime family health care coverage. All of these benefits come at a staggeringly high cost to the taxpayers that may run well into the millions for many workers.

 

If you think about it, why do we pension off young men and women in this situation when they could return to numerous other sedentary or light positions using the training and background we have already provided them at high expense? Couldn’t a disabled police officer, firefighter or prison guard be transitioned into administrative work? Doesn’t ADA contemplate our governments should and must do so?

 

Conflict of Workers’ Compensations Laws and the ADA

 

Most workers’ comp laws are generally “no fault” laws and contain provisions which prevent employees from bringing lawsuits against their employer or third parties for occupational injuries. As such, workers’ comp claims are typically the only recourse available to employees for their occupational injuries.

 

Once an “injury” is also considered a “disability,” the federal ADA applies in addition to the workers’ comp statute. It is possible you might need a defense team member from KCB&A to protect you and handle both the state administrative proceeding and a federal EEOC charge or direct state claim for retaliatory discharge. Such claims are not consider “no fault”—the worker has to show you had animus for them in some way in violation of the federal ADA. The disabled employee could enjoy the ADA’s additional protection to be free from job discrimination based on the disability arising from a work accident or exposure.

 

The defense team at KCB&A handles/defends state WC claims, EEOC charges and all sorts of related litigation in state and federal courts. If you need help or direction in handing such claims, please send a reply.

 

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Synopsis: Illinois WC Claim Costs Are Dropping--New WCRI Studies Examine Trends in Claim Costs and Impact of Reforms in 18 State Workers' Compensation Systems

Editor’s comment: The WC claim costs and other metrics of 18 state workers' compensation systems are analyzed in depth in a new series of studies, CompScope™ Benchmarks, 17th Edition, released by the Workers Compensation Research Institute (WCRI).

“The research can help policymakers and other stakeholders identify current cost drivers and emerging trends in a wide variety of workers' compensation system components,” said Ramona Tanabe, WCRI's executive vice president and counsel.

The studies examine trends in workers' compensation medical and indemnity payments in a number of states with significant changes, either through new laws or through court rulings. They also examine how income benefits, medical payments, duration of disability, litigiousness, and benefit delivery expenses changed over time, and they compare how these measures differ from state to state.

The following are sample findings for some of the study states:

  • California: Total costs per claim remained stable between 2010 (claims with experience through March 2013) and 2013 (claims with experience through March 2016), likely reflecting the impact of Senate Bill 863.
  • Florida: Total costs per claim grew moderately from 2010 to 2015, but two 2016 Florida Supreme Court decisions are expected to increase workers' compensation system costs.
  • Illinois: Total costs per claim decreased 6.4 percent since 2010, reflecting the impact of a 30 percent reduction in fee schedule rates for medical services following the 2011 Amendments to the IL WC Act.
  • Indiana: Total costs per claim decreased 4 percent from 2014 to 2015, the result of a nearly 10 percent decrease in medical payments, partly offset by a nearly 5 percent increase in indemnity benefits per claim. Those changes are likely related to provisions of House Enrolled Act 1320, which enacted a hospital fee schedule and increased income benefits paid to injured workers.
  • North Carolina: Total costs per claim remained steady since 2009, a contrast from earlier years, following several fee schedule changes and House Bill 709 in 2011, which focused on income benefits.

CompScope™ Benchmarks, 17th Edition illustrates the performance of 18 state workers' compensation systems over time and how they compare. In addition to the states mentioned above, WCRI is also publishing studies for Georgia, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, New Jersey, Pennsylvania, Texas, Virginia, and Wisconsin. The state studies explore the time from injury to first indemnity payment, the average total cost per claim, the average payment per claim for medical care, and the average payment per claim for indemnity benefits.

For more information on these studies, visit https://www.wcrinet.org/reports/compscope-benchmarks-17th-edition.

The Cambridge-based WCRI is recognized as a leader in providing high-quality, objective information about public policy issues involving workers' compensation systems.

Synopsis: Happy Anniversary!

Editor’s comment: I was sworn in as an IL lawyer on May 1, 1980. 37 years later, I am still fighting the good fight to insure reasonable benefits are provided to injured workers with real injuries while employers pay fair amounts to cover them.

I have been writing this KCB&A Update since the summer of 1992 when it was a three-fold pamphlet that we addressed, stapled and snail-mailed to clients and potential clients. Yes, it has been 25 years! I am fairly sure something like 50,000+ readers have reviewed the KCB&A Update over the decades. I appreciate your thoughts, comments and suggestions.