Carpal Tunnel Syndrome May Be a Disability under the ADA

Since the passage of the ADA Amendments Act in 2008, courts have seen an increasing number of ADA discrimination claims against employers stemming from run-of-the-mill workers’ compensation claims.

The United States District Court’s holding in Gibbs v. ADS Alliance Data Systems, Inc., 2011 WL 3205779 (D. Kansas), drives home the point that many claimants with work-related injuries will now find coverage under the ADA. The plaintiff, Olivia Gibbs, was employed by ADS Alliance Data Systems, Inc. and CVS. Ms. Gibbs was injured while working for CVS. A nerve conduction study following her injury revealed carpal tunnel syndrome, which her doctor attributed to the repetitive nature of Ms. Gibbs’ sales and service representative position at Alliance. Ms. Gibbs then filed for workers’ compensation benefits.

Ms. Gibbs underwent carpal tunnel surgery on her right wrist in December 2008. She returned to work nine days later with restrictions that permitted her to work only with her left hand. Despite the work restrictions and a light duty assignment, Ms. Gibbs’ production numbers were not reduced and she was forced to use her right hand to keep up. As a result, Ms. Gibbs wrote a letter to her human resources manager requesting a different light duty assignment. Evidence in the record revealed that Alliance was frustrated with Ms. Gibbs’ requests for accommodation, and that her supervisor told her that the company was “losing money” on her.

In December 2009, Ms. Gibbs informed Alliance that she needed to have carpal tunnel surgery on her left wrist. The surgery took place and Ms. Gibbs was returned to full duty by her doctor on January 8, 2009. The following day, the Alliance HR manager observed Ms. Gibbs soliciting other employees to purchase Avon products. Ms. Gibbs denied the allegation; however, she was promptly terminated based on a violation of the company’s Solicitation and Distribution Policy.

Ms. Gibbs filed suit against Alliance and alleged that her firing violated the ADA. She claimed that Alliance terminated her based on her disability, i.e., bilateral carpal tunnel syndrome, and that her termination was in retaliation for her engaging in protected activity under the ADA. Alliance moved for summary judgment on both claims.

In rejecting Alliance’s motion for summary judgment, the court began by noting:

[t]he ADA Amendments Act of 2008 (ADAAA) has ”lowered the bar” on the disability inquiry. … While an ADA plaintiff must still show that he or she has a physical or mental impairment that substantially limits a major life activity, 42 U.S.C. § 12102(1)(A), the ADAAA has ”significantly expanded” the terms within that definition in favor of broad coverage. … “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis” and … the “primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.”

The district court therefore held that, “After examining the evidence in the record bearing on this issue (certainly there is some evidence that plaintiff’s condition affected her ability to perform manual tasks), and keeping in mind that this inquiry is not meant to be ‘extensive’ or demanding, the court concludes that genuine issues of material fact exist as to whether plaintiff’s carpal tunnel syndrome constitutes a disability within the meaning of the ADA.”

The court rejected Alliance’s argument that its solicitation policy provided a legitimate, non-discriminatory reason to terminate Ms. Gibbs. “Defendant’s solicitation policy, on its face, does not contemplate termination for a violation of the policy; it states that an employee who violates this policy ‘may’ be subject to counseling.” The court noted that the decision to terminate Ms. Gibbs rather than counsel her casts doubt on reason for her termination.

The court also denied summary judgment on Ms. Gibbs’ retaliation claim. It commented, “the timing of the decision to terminate plaintiff’s employment – just 4 weeks after plaintiff requested an accommodation based on her condition – is sufficient to create genuine issues of material fact as to whether defendant’s proffered reason for terminating plaintiff’s employment was pretextual.”

This is certainly a case worth following. As developments arise, Roetzel & Andress will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our employment services attorneys.   

Contact: Alexander J. Kipp

216.820.4204

akipp@ralaw.com

EEOC Determines that Discrimination Laws Protect Transgender Employees

On April 23, the EEOC issued an opinion determining “that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based…on sex,’ and such discrimination therefore violates Title VII.” In this case, a woman claimed she was denied a contractor job with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) after the agency learned she underwent a procedure to change her gender from man to woman. The woman originally applied for the position as a man and was informed she was virtually guaranteed the job. After the ATF learned of her procedure, it informed her that funding for her position had been cut. She later learned the ATF hired someone else for the job.

The EEOC’s decision should not be a surprise as federal courts have recognized that transgender employees are protected from discrimination by Title VII. On December 6, 2011, the 11^th Circuit Court of Appeals determined that the termination of an employee based on her non-conformity with gender stereotypes constituted unlawful discrimination. In that case, the employee was born a male but identified as a female. The employee was diagnosed with Gender Identity Disorder.

The decisions of both the EEOC and the 11^th Circuit involved government employees; however, the clear indication from the EEOC and the courts is that the same analysis will be applied to employees of private companies. Title VII, like most state statutes, does not specifically designate transgender employees as a protected class, but the EEOC and courts determined that discrimination against transgender employees is a form of sex discrimination. The EEOC and federal court decisions are likely to impact claims brought under state law because most state courts have determined that federal court decisions interpreting Title VII are applicable to claims brought under state law. It should be noted that 16 states and the District of Columbia currently have laws prohibiting discrimination based on gender identity.  

Contact: Jon Secrest

614.723.2029

jsecrest@ralaw.com

DOJ Sues Jacksonville for Using Written Tests to Determine Fire Department Promotions

On April 23, following a two-year investigation of employee promotions in the Jacksonville, Florida fire department, the United States Department of Justice (DOJ) filed a lawsuit against the city, claiming that its use of written tests are "not job related for the positions in question" and that the tests have "resulted in a disparate impact upon black candidates." According to the DOJ, because African-Americans pass these tests at a lower rate and generally score lower on them, African-Americans have been promoted less often than white employees, and that, in effect, the city is using the tests to disqualify certain people.

Roetzel partner Denise L. Wheeler discussed the suit last week in a radio interview with 970 WFLA on its "AM Tampa Bay" program. Ms. Wheeler said that central to the challenges is test content. "Is the test really appropriate for the skills that you need as a firefighter or supervisor?"

You can listen to Ms. Wheeler's entire interview here: http://www.970wfla.com/player/?mid=22042123.

Contact: Denise L. Wheeler

239.338.4259

dwheeler@ralaw.com

Authorization of Diagnostic Testing Does Not Support the Continued Payment of Temporary Total Disability Compensation

In State ex rel. Huffman v. Industrial Commission, 2012-Ohio-1609, the claimant argued that he was entitled to the extension of temporary total disability (TTD) compensation based upon the authorization by the Industrial Commission of Ohio of diagnostic testing recommended by the claimant’s physicians to further medically treat him for an injury in an allowed claim. At the time of this authorization, the Ohio Bureau of Workers’ Compensation (BWC) was requesting that the claimant be declared to have reached maximum medical improvement under the allowed conditions at that time. The claimant argued that termination of TTD compensation would be premature in light of this authorization,  and that he was entitled to continued TTD compensation during the course of this testing.

The Tenth District Court of Appeals disagreed with the claimant’s rationale, citing State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm., 2003-Ohio-2259, where the claimant was entitled  to the continued payment of TTD compensation only if the claimant’s allowed conditions had not reached maximum medical improvement. The Tenth District Court of Appeals relied upon the Industrial Commission’s finding that the claimant in this case had reached maximum improvement for the allowed conditions. State ex rel. Jackson Tube Serv., Inc. v. Indus. Comm. does not support the continued payment of TTD compensation under these circumstances. Also, the court held that if the testing showed the existence of new medical conditions, the payment of TTD compensation during the process of the testing to determine these conditions would not be permitted as these conditions would not yet be allowed in the claim.

It has been the common practice before the Industrial Commission of Ohio that if any additional medical treatment is authorized  the termination of TTD is not indicated. State ex rel. Jackson Tube Servs., v. Indus. Comm. instructs the Ohio BWC and Industrial Commission of Ohio that only treatment of the allowed conditions supports the payment of TTD so long as the claimant has not been declared to have reached maximum medical improvement for these conditions.

Contact: Brian A. Tarian

614.723.2028

btarian@ralaw.com

A Cautionary Note to All Employers: Be Sure to Pay Your Workers' Compensation Premiums

A judge in Cuyahoga County, Ohio recently ordered Gray Container, a 55-gallon drum manufacturer, to discontinue its operations for repeatedly refusing to maintain workers' compensation coverage. The injunction against Gray Container, requested by the Ohio Bureau of Workers' Compensation (BWC), was filed to protect the company's current employees. Gray Container has appealed the ruling to the Eighth District Court of Appeals.

"This case is ultimately about fairness – fairness to the employees who deserve protection in the case of workplace injury and fairness to the 250,000 other Ohio businesses who have to pick up the tab when a worker for an uninsured company is injured," said BWC Administrator/CEO Steve Buehrer. "In this instance, Gray Container ignored repeated efforts by our staff to find a workable solution, even as multiple claims were filed by its workers."

According to the BWC, Gray Container allowed its policy to lapse in September 2006 and, despite repeated attempts by the BWC to assist the company to maintain coverage, it failed to protect its employees. During that time, 22 claims, one of which was a death claim, were filed, and Gray Container now owes the BWC almost $700,000. Ohio law ensures benefits for the injured workers even if the employer is without coverage.

The company's owner, Anthony Gray, previously pled no contest to felony failure to comply with workers' compensation laws. Gray was sentenced to one year of probation, 80 hours of community service, and a 90-day suspended jail sentence. He further agreed to make a lump sum payment, make monthly payments, and continue to report payroll and pay premiums in a timely manner. Gray failed to meet any of these arrangements.

This is a situation rarely seen since the overwhelming majority of employers pay their workers' compensation premiums on time as required. Hats off to the Ohio BWC for pursuing this entirely warranted action against a company that clearly put its own interests ahead of both its employees and its responsibility to other employers in Ohio that participate in the state fund.

 

As developments arise regarding this case, Roetzel & Andress will provide further information and guidance to assist you. Please contact any of our offices to discuss this matter further with one of our workers’ compensation attorneys.

Contact: Kevin J. Cooper

419.254.5257

kcooper@ralaw.com

D.C. Circuit Rules Statute of Limitations is Six Months for OSHA Recordkeeping Violations

On April 6, 2012, the D.C. Circuit Court of Appeals reversed a longstanding precedent regarding the statute of limitations for violating the Occupational Safety and Health Administration’s (OSHA) recordkeeping requirements. In AKM LLC v. Secretary of Labor, 2012 WL 1142273 (D.C. Cir. Apr. 6, 2012), the court ruled that the statute of limitations for such violations is six months rather than five years.

OSHA requires employers to record information about employees’ work-related injuries in three ways. Employers must (1) prepare an incident report and a separate injury log within seven days of learning that an injury occurred; (2) prepare a year-end summary report, certified by a company executive, of all recordable injuries during the calendar year; and (3) save all of these documents for five years.

In AKM LLC v. Secretary of Labor, OSHA inspected the employer and discovered that it failed to diligently record work-related injuries between 2002 and early 2006. On November 8, 2006, OSHA cited the employer because its incident report forms were incomplete, injuries were not entered in the injury log and year-end reviews were not conducted. The improperly recorded injuries occurred between January 11, 2002 and April 22, 2006.

Because the statute of limitations for an OSHA citation is six months after the occurrence of a violation and the injuries giving rise to the recording failures took place more than six months before OSHA issued the citations, the employer moved to dismiss the citations as untimely. However, the Secretary of Labor argued that the violations were “continuing violations” that prevented the statute of limitations from expiring until the end of the five-year record retention period. All of the employer's recording violations, stretching back to 2002, were therefore still occurring when OSHA’s inspection began on May 10, 2006. The Secretary argued the citations were timely because OSHA issued them two days shy of six months after the inspection date.

The court sided with the employer. It held that the employer's failure to make and review records and the workplace injuries that gave rise to those unmet recording duties were “incidents” and “events” which “occurred.” The six-month statute of limitations for OSHA to cite the employer for not properly recording workplace injuries began to run at that time, not at the end of the five-year record retention period. Therefore, OSHA’s citations were untimely, and the court vacated them.

This decision is a rare piece of good news for the business community in a time where each passing week brings news of increased OSHA enforcement. The court’s decision reverses a longstanding OSHA precedent and is a significant victory for employers.

Contact: Nathan Pangrace

216.615.4825

npangrace@ralaw.com

Drugs, a Rogue Police Officer, and … Permanent Total Disability Compensation

It almost sounds like the plot to a new, hip, cinematic thriller. Possibly Oliver Stone's comeback movie or Quentin Tarantino's long-awaited sequel to "Pulp Fiction." Okay, not quite. But those of us in the workers' compensation field can dream, can't we?

The muse for my blog comes from the hallowed halls of the Ohio Supreme Court. In perusing recent decisions, I came across the case of State ex rel. McNea v. Indus. Comm., Slip Opinion No. 2012-Ohio-1296 (Decided March 29, 2012). If you consider the "raw" facts, it has the true makings of a summer blockbuster. Donald F. McNea, Jr. was a police officer for the city of Parma and was awarded permanent total disability (PTD) compensation in 2004 for injuries that he claimed to have sustained in that capacity. Unbeknownst to the parties involved with this determination, Officer McNea had been under investigation by his own department for selling prescription medications. Of note, he was recorded as having made four sales to confidential informants in 2005, netting $6,200. He was later arrested, indicted, and sentenced to three years in prison after having pled guilty to four felony charges.

Here's the best part: In 2007, the Bureau of Workers' Compensation moved the Industrial Commission (IC) to both terminate further PTD compensation and to declare past PTD compensation overpaid as of August 25, 2004, when payments began(!). (Wow! Who saw that coming? Actually, we all did, but I digress.) The end result of the administrative process was that the IC terminated Mr. McNea's PTD compensation after finding that he had engaged in sustained remunerative employment while receiving those benefits. McNea then filed a complaint in mandamus in the Court of Appeals for Franklin County. From there the case ended up in front of the Ohio Supreme Court.

The question for the court was whether McNea had engaged in "sustained remunerative employment" as the result of his illegal activities, and the court ruled that he had. The court stated that the IC had properly relied on the court's prior decision in State ex rel. Lynch v. Indus. Comm., 116 Ohio St.3d 342, 2007-Ohio-6668, which declared that the illicit sale of drugs could constitute sustained remunerative employment sufficient to terminate PTD. Though the injured worker in Lynch was not a police officer, the basic facts are just as compelling. Mr. Lynch was described in the court's decision as having operated an "ongoing crack-cocaine enterprise" out of his home. With facts like these, it has "prequel" written all over it.

Contact: Christopher R. Debski

330.849.6717

cdebski@ralaw.com