October 19, 2009

Not Exactly a Rush to Judgment

Kris Indergard used to work on the railroad. Then she hurt her knee (partly work related), had surgery and was out of work for over a year. Her doctor established "permanent" restrictions. Indergard wanted to return to work, so Georgia Pacific sent her for a physical capacity exam (PCE). The PCE provider observed Kris's actual job, which the employer stated required lifting up to 60 pounds. Sixty pounds exceeded the restrictions established by the treating doctor, so the employer refused to take her back.

Half a year later, Kris's doctor lifted the "permanent" restrictions. ("Miracle recoveries" - a subject in themselves - are beyond the scope of today's blog.) So Kris had another PCE, this time including a complete medical workup. Her lifting ability was tested, along with job simulations. Not surprisingly, Kris was out of shape - she had been out of work nearly two years - so her aerobic capacity was limited. She could not complete a 60 pound lift. As a result, Georgia Pacific terminated her.

Indergard sued, claiming that the employer misrepresented the essential functions of the job: she believed that the lifting requirement was exaggerated; hence, the PCE was improper and discriminatory.

Her case boiled down to a technicality: was the PCE a medical exam? If yes, the exam "must be job related and consistent with business necessity." If not, the PCE was exempt from this requirement.

The prior court determined that the PCE was not a medical exam and issued a summary judgment for the employer.

Big Picture, Little Picture, No Picture
Indergard appealed, noting that the PCE included a check of her blood pressure, her aerobic capacity and a detailed medical history. In other words, it was not simply a test of her physical capacities. The U.S. Court of Appeals, 9th Circuit in Oregon, determined that the PCE was indeed a medical exam. They over-ruled the summary judgment and remanded the case back to district court.

What is fascinating in all the legal arguments is what is missing: the issue of "reasonable accommodation." Indergard challenges her employer's contention that the job requires lifting of 60 pounds. How often is this lifting required? Are there any available lifting aids? Are other people available to help? Is lifting 60 pounds truly an "essential" job function?

Indergard's victory isbased upon a technicality: the PCE was in fact a medical exam, because medical issues were included. (It's difficult to imagine any test for physical capacities that would not include at least some medical issues.) We can only hope that the lower court focuses on the big picture: Indegard's ability to perform the essential job functions, with or without accommodation. It's hard to believe that this case has dragged on for six years. It began with a rush to judgment and ends with an agonizingly slow parsing of technicalities. Indergard wants her job back. Sounds simple enough, but with the wheels of justice churning along, it is doubtful that such an outcome will ever take place.

| 1 Comment

1 Comment

Seems the employer could have made a good faith effort to accomodate work restrictions. This goes a long way!

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About this Entry

This page contains a single entry by Jon Coppelman published on October 19, 2009 10:47 AM.

Health Wonk Review; also, the crazed chimp case and workers comp was the previous entry in this blog.

Inferno: Combustible dust explosion at Imperial Sugar - video report is the next entry in this blog.

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