June 26, 2007

Unsuitable Modified Duty, Wrongful Termination and Attorneys with Cash

On September 10, 2001, just one day before this country's sense of security collapsed along with the World Trade Center towers, a smaller world collapsed around Anthony Boyle, an employee of the Weyerhauser Company in New Jersey. A 600 pound bale of waxy cardboard material fell from a conveyer belt. Boyle used his back to prop it up. He suffered two herniated discs in the accident.

Then Weyerhauser tried to do the right thing. Or did they? They sent Boyle to their doctor, who prescribed some strong medication (presumably narcotics) and released him for light duty. What happened next is a little unclear, as the two available press reports (available here and here) are not consistent. It appears that the light duty work involved operating a sweeper, which had no power steering and stressed Boyle's arms and shoulders, thus aggravating the injury to his lower back. In addition, in order to operate equipment, Boyle had to forego use of the narcotics prescribed by the company doctor. He tried to rely on aspirin to manage the excrutiating pain.

In too much pain to comfortably operate the sweeper, I'm guessing that from time to time Boyle continued to take the prescribed narcotics. At some point, he failed a company drug test. He was terminated for violating substance abuse policy.

Boyle sued for wrongful termination. A Camden jury recently awarded him $606,000, including $86,000 for lost wages, $70,000 for emotional distress and $450,000 in punitive damages. Clearly, the jury did not buy Weyerhauser's approach to modified duty: knowing that Boyle was in a lot of pain, they put him in a position that aggravated the injury and at the same time prevented him from taking prescribed medication for that pain. Their mistake was in requiring him to operate equipment in his modified duty position. A more reasonable accommodation would have involved Boyle doing lighter tasks that did not require the operation of equipment. If such a position were not available, the company should have allowed Boyle to collect indemnity until his back improved to the point where narcotics were no longer needed.

A Word to the Wealthy
Boyle is probably satisfied with the work of his attorney, Daniel Zonies. The attorney made a good case and secured a pretty substantial payment. But a word of caution to Mr. Boyle. If he googles his attorney's name, he will find Mr. Zonies in some pretty dubious company. He is listed among the New jersey attorneys who were disciplined in 2003. Zonies's problem? The Office of Attorney Ethics reprimanded him for failing to safeguard client funds, failing to deliver funds properly to clients and third parties and for record keeping violations (page 57). Zonies was ordered to submit quarterly reconciliations of his trust account for two years; unfortunately for Boyle, the order expired in 2005. Boyle, currently the manager of a hardware department for Home Depot, might be better off managing the money himself.

| 1 Comment

1 Comment

Thanks for an interesting post. This highlights the need to provide the treating physician with a detailed job description and ensure that duties the employee can safely perform are specifically listed on your return-to-work slips. Just a scribbled note from an MD can really get you into expensive trouble.

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This page contains a single entry by Jon Coppelman published on June 26, 2007 10:42 AM.

News roundup: health care reform, nursing safety, blog discoveries, retaliation, falls & more was the previous entry in this blog.

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