Federal Court ruling suggests that every disabling Workers’ Compensation claim should trigger ADA interactive process

Krishna Balasubramani | Sather Byerly and Holloway, Oregon and Washington Employment Law, Workers Compensation, Longshore, and OSHA Defense AttorneysBy: Krishna Balasubramani

Judge Michael Simon issued a decision in Dunlap v. Liberty Natural Products, Inc. (April 20, 2015) addressing the overlap between the ADA and a Workers’ Compensation claim. The Defendant employer received a Notice of Closure that “classified Plaintiff’s claim as disabling under Oregon workers’ compensation law.” He ruled “a reasonable jury could find that “Defendant was ‘on notice’ of Plaintiff’s need for accommodation due to her disability, triggering Defendant’s duty to engage in the interactive process.” The court reaffirmed that the employee is not required to specifically mention the ADA or the phrase “reasonable accommodation.” The jury found for Plaintiff and awarded $70,000 in non-economic damages and $13,200 back pay.

The underlying workers’ compensation claim appears like many other claims. Plaintiff was a shipping clerk with a repetitive use claim for bilateral epicondylitis. She was provided temporary light duty work. Her claim was closed and she requested reinstatement. She had permanent limitations.

Plaintiff presented evidence that she was able to perform the essential functions of the job without limitation. She produced evidence that the essential job function was moving boxes and that lifting boxes was not necessarily the essential job function. After plaintiff provided a medical release to her employer, “no one from [the employer] interacted with her to determine the pounds of force necessary to push or pull an item in the shipping department.” At trial plaintiff presented evidence of a scissor lift and other assistive devices that could have helped her perform her job.

Finally, the court noted plaintiff was not responsible for the breakdown in the interactive process and that the employer representative testified “he never spoke with Plaintiff about performance issues and that he made the decision to discharge Plaintiff without even speaking to her.”

There are several lessons to be learned:

  1. In every Workers’ Compensation Claim in which an employee does NOT return to regular work, the employer should engage in the interactive process;
  2. The interactive process necessarily involves the employee;
  3. The employer’s obligation is ongoing and the employer should NOT rush to terminating employment based on an inability to perform the job at injury or other available and suitable work;
  4. Consider writing to the employee throughout the interactive process so that the employer’s willingness to engage in the interactive process and its genuine interest in having the employee return to work is clear. {Note: this can be powerful evidence at trial}

Please contact me at kbalas@sbhlegal.com or any of the attorneys at Sather, Byerly & Holloway if you have questions about this case or if we can help you through his process.