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Brandon, Esq.
Brandon, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 1823
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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We have an employee who may or may not have a pre-existing

Resolved Question:

We have an employee who may or may not have a pre-existing back injury, but recently began asking her immediate supervisor for modifications in her work duties due to experiencing back pain.

1) Would this be considered a worker's compensation injury?
2) If the employee chose to see her own doctor for a pre-existing condition, can we request confirmation from her own doctor that she is capable of meeting the physical job requirements?
2) Can we require the employee to see worker's compensation doctor prior to attempting to provide modified work (when in reality we do not have modified duty)?
3) If she refuses to go seek consult/care from a worker's comp doctor, do we have any legal ground to say that "Since you are not seeking care, then we are assuming you are not injured, in which case, you are expected to complete the job duties as required and if you cannot do so, you can no longer work here."?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Brandon, Esq. replied 1 year ago.

Employment-LawExpert :

I am a licensed professional here to help you with your question. I appreciate your patience while I respond to you. Please remember to only rate my answer when you are 100% satisfied. I strive to provide excellent service, so if there is anything else I can help you with, or if you need additional clarification, please do not hesitate to ask. If you feel the need to click either "Poor Service" or "Bad Service", PLEASE STOP and reply to me via the REPLY TO EXPERT button with the issue you have. I will be happy to continue further and do everything I can to provide you with the service you seek. If you feel that I am unable to do so, please inform me of such and I will be happy to opt out of this question so that another expert may better assist you. Please remember that no attorney client relationship exists between us and anything said between us is not intended as legal advice.\

Employment-LawExpert :

Welcome to the chat


 

Employment-LawExpert :

First, do you have over 50 employees?

Customer:

I received an email saying my questions were answered, but I do not see the answer?

Customer:

No, we have about 25.

Employment-LawExpert :

Please give me a moment to investigate this

Employment-LawExpert :

And make sure another expert has not already answered your question for you

Employment-LawExpert :

It does not appear that another expert has answered this question. Accordingly, I want to answer each of your questions in turn.

Employment-LawExpert :

1. A workers compensation injury is any injury caused at or by employment. Accordingly, if the injury is in fact a pre-existing injury, then your workers compensation insurance will likely deny this persons claim.

Employment-LawExpert :

2. Yes you can. Under the ADA you are required to allow this person to perform their job with reasonable accommodation. You cannot get their medical records, but you are allowed to inquire as to the state of this persons diagnosis.

Employment-LawExpert :

2b) You are allowed to have an IME (independent medical evaluation) by a doctor of your choosing to review her. This is to deny/accept her claim. (do not admit that there is no modified duty)

Employment-LawExpert :

Keep in mind that she is allowed to refute this review and request a second review at your expense

Employment-LawExpert :

I should ask while I continue to respond. Do you have workers compensation insurance on this person?


 

Employment-LawExpert :

Or are you self insured?

Customer:

Yes, we do have worker's compensation.

Customer:

insurance

Employment-LawExpert :

3) If she refuses to go to a doctor as a result of an IME request, then her claim can be denied. However, under the ADA, you cannot refuse that she complete the exam. You can only request that her doctor provide enough information concerning her disability.

Employment-LawExpert :

Your workers compensation insurance should take care of the IME for you.

Employment-LawExpert :

If they deny the claim (likely given the facts you have presented) then you would not have to alter her job duties absent something from her doctor requesting a reasonable accomodation.

Employment-LawExpert :

As to termination, you should be careful. It is against the law to retaliate against someone for filing a workers compensation claim regardless of whether the claim has merit

Employment-LawExpert :

You are required to engage in the interactive process of discussing if she can do the job with a reasonable accommodation. Disability is defined as a medical condition which substantially limits a major life function

Employment-LawExpert :

Here is a website that discusses this further.

Employment-LawExpert :

http://www.infinitec.org/live/citizenship/adadefine.htm

Employment-LawExpert :

This will give you the basics. Here is a much more detailed document that will answer all of your questions, but is much longer

Employment-LawExpert :

http://www.ada.gov/cguide.htm

Employment-LawExpert :

Does all of this make sense? And have I left anything out?

Employment-LawExpert :

Please feel free to ask any follow up questions you may have or ask for additional clarification in anything that I have said

Customer:

In the past, whenever an employee has been given modified duty instructions by the worker's compensation doctor, we have always notified them that there is no available modified duty - there really isn't in our line of work - our folks are dog handlers/walkers - if they cannot bend over or lift/push/pull more than 50lbs, there is no work here for them as all the dog care requires that physical ability. So how can we have no modified work, but still be expected to make 'reasonable accomodation'?

Employment-LawExpert :

The law states that an employer is required to give a reasonable accommodation that does not constitute an "undue hardship" to that employer.

Employment-LawExpert :

Accordingly, if there is no possible job the person can do, or no reasonable accommodation, then you are protected. Thus, you can put the burden on the employee to come up with a reasonable accommodation that would allow them to do the job.

Customer:

What steps are we legally required to take at this point? Directly approach her and say that we are now aware of her back issue and require her to see a worker's comp doctor to evaluate it? Or just ask for info from her personal doctor regarding her ability to complete the job requirements?

Employment-LawExpert :

Let your workers compensation insurance deal with the evaluation of the claim. Accordingly, do not do the first. However, you are allowed to do the second. Then, if there is no reasonable accommodation where she could properly perform the essential functions of your job, you could legally terminate her. Just make sure you have that well documented in writing so as not to open yourself up to a lawsuit regarding discrimination based on a disability, or a lawsuit for retaliation based on filing a workers compensation claim

Employment-LawExpert :

Remember though, that you cannot ask for her medical records. You can only ask for documentation related to her disability. Here is the EEOC guidelines on requiring medical documentation.

Employment-LawExpert :

http://www1.eeoc.gov/eeoc/publications/adahandbook.cfm#medical

Customer:

Ok, thanks for your help - it is much appreciated!

Brandon, Esq., Lawyer
Satisfied Customers: 1823
Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.
Brandon, Esq. and other California Employment Law Specialists are ready to help you
Expert:  Brandon, Esq. replied 1 year ago.
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