On September 28th the U.S. 9th Circuit Court of Appeals ruled that Georgia-Pacific violated the Americans with Disabilities Act (ADA) for requiring their employees to participate in an over-reaching physical capacity evaluation (PCE) (in Alabama we call them functional capacity evaluations or an FCE) before allowing them to return to work from medical leave.

Kris Indergard worked for Georgia Pacific from 1984 until 2006. In December of 2003 she took medical leave to undergo elective surgery for work related and non work related injures to her knees. She remained on leave until March 2005 and the returned to work on an unrestricted basis. Georgia Pacific policy required her to participate in a PCE before returning to work, as permitted by the Equal Employment Opportunity Commission. Generally, these PCEs are not considered medical examinations. The PCE showed she was not able to meet the physical demands of her previous position and when no other positions were available she was terminated.

Ms. Indergard filed suit claiming that the PCE was overreaching and was actually a medical examination based upon certain procedures that she was required to perform. Under the ADA, an employer can not require a medical exam unless it is shown to be job related and consistent with business needs. The ADA statue promulgates (in part): "A covered entity shall not require a medical examination and shall not make inquires of an employee as to whether such employee is an individual with a disability or as to the or as to the nature of the disability..."

Upon review of the case, the 9th Circuit Court agreed with Ms. Indergard’s position that the PCE went above and beyond what could reasonably required for a returning worker. The case has been remanded for further proceedings.

Practice Pointer: Employers and claims administrators should make sure that any PCE or other return-to-work procedures have been reviewed by their legal department.

Source: http://www.businessinsurance.com/article/20090928/NEWS/909289988

Last Friday, the Supreme Court of the United States reviewed the case of Cassens Transport Co., et al., Petitioners v, Paul Brown, et al., No. 08-1375 on its conference agenda. This was a Michigan case that claimed that the state workers’ compensation law did not preempt a cause of action for alleged Racketeer Influenced and Corrupt Organization Act (RICO) violations. While this claim was denied by the District Court, the 6th circuit Court of Appeals overturned the District Court and held that the plaintiffs adequately pleaded a pattern of racketeering activity. The Supreme Court of the United States has denied a writ of certiorari in this matter, upholding the ruling of the 6th Circuit Court of Appeals.

Now the matter will move back down to the District Court level where the allegation will be re-examined. This holds serious implications for Workers’ Compensation practitioners. What had previously been solely a state matter now has the potential to be transferred into the Federal court system. It will also introduce the possibility of criminal charges (conspiracy to commit fraud) into Workers’ Compensation matters. This could mean an increase in litigation costs in the years to come.

Practice Pointer:  The basis of the above RICO claim is that the Insurer, TPA, and Employer conspired with certain doctors to deprive the plaintiff employees from their workers' compensation benefits.  The best way to avoid such an implication is to refrain from using the same doctors in every case and to make sure that you not use doctors or other vendors with reputations which reflect obvious bias.  

Warning to Plaintiff's Attorneys:  This door swings both ways.  If you keep using the same biased chiropractors or 100% voc experts you may have a RICO claim filed against you too!