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Two significant cases

Illinois Supreme Court: fired worker still due Workers’ Comp

In some cases, managers view Workers’ Compensation as an opportunity to get rid of marginal or troublesome employees. As we have said before, a Workers’ Compensation claim is not the place to deal with a problem employee. This is like walking in quicksand – there is a host of laws that employees can choose from to sue you, including wrongful termination, disability discrimination and retaliation.

Performance problems should be documented and disciplinary action taken separate from the Workers’ Compensation claim, consistent with company policies.

Yet what about the worker who has returned to work and not fully recovered from his injury? How does this affect workers’ compensation benefits?

A recent decision by the Illinois Supreme Court in Interstate Scaffolding v. Workers' Compensation Commission is significant. The case raised the question of whether an injured worker, fired for reasons unrelated to the injury, can continue to receive benefits. The court determined that the answer is yes.

"For the reasons stated above, we hold that an employer's obligation to pay Temporary Total Disability (TTD) benefits to an injured employee does not cease because the employee had been discharged - whether or not the discharge was for "cause."  When an injured employee has been discharged by his employer, the determinative inquiry for deciding entitlement to TTD benefits remains, as always, whether the claimant's condition has stabilized. If the injured employee is able to show that he continues to be temporarily totally disabled as a result of his work-related injury, the employee is entitled to TTD benefits."

When an employee returns to work, employers can fire for cause, unrelated to the injury. However, it’s important to recognize that this not appear as subtle retaliation for filing a claim and that the claim costs can continue.

Functional Capacity Evaluation lawful for safety concerns

Under the Americans with Disabilities Act (ADA), employers have reason to be cautious about demanding a functional capacity evaluation (FCE). A recent ruling by the 6th U.S. Circuit Court of Appeals found that when legitimate safety concerns exist the demand for an exam was lawful and could not be the basis of a claim for disability discrimination.

In James v. Goodyear Tire & Rubber Co., the court ruled that Goodyear had a valid reason to demand the FCE of James who suffered from progressive multiple sclerosis. Goodyear had received several reports from coworkers and union representatives concerning James’ safety. While James opted for medical retirement with disability benefits rather than submitting to the FCE, James sued claiming violations of the ADA as a result of the company’s request that he undergo a functional capacity evaluation, and alleged that the test was an adverse employment action.

Goodyear sought a ‘direct threat assessment’ to determine the potential for harm and the imminence of such harm. The 6th Circuit affirmed the dismissal of James’ lawsuit and held that “a valid [functional capacity evaluation] demand cannot constitute an adverse employment action under the Americans with Disabilities Act.”