Gail S. Perry

 Employers are understandably nervous about handling and using employee medical information in the workplace.  On the one hand, employers are to be blind to medical or physical issues unless they affect the performance of the essential functions of the job.  On the other hand, medical issues can warrant leave or fitness for duty inquiries, or signal the need for an accommodation. 

 

Solid medical information is critical for making good defensible employment decisions.  Clear written doctor's opinions are the best evidence for defending an ADA, FMLA or workers' compensation claim.  But each law dictates how you get and use the information. 

 

One thing is clear: relying on your own assumptions, or your own internet diagnosis, or even what the employee says about his or her own medical situation, is risky. The following outline highlights issues and opportunities presented by medical information in the workplace, and practical recommendations for using it. 

 

Talking to Employees

 

Many employers are reluctant to talk directly to employees about private medical information.  Done incorrectly, such communication can send the message that the employer perceives a disability or is making an assumption about the employee's ability to perform the job, or is discriminating.  Done correctly, this communication is the very "interactive process" that is required under the Americans with Disabilities Act Amendments.  

 

Employers have the legal right to talk to an employee about a medical situation, as long as the discussion is job-related and consistent with business necessity.  The interactive process involves discussions with the impaired employee, supervisors and other sources about the employee's limitations and how the limitations can be overcome so that all essential job functions can be performed.

 

Under the Family Medical Leave Act, covered employers must affirmatively give notice to the employee of the availability of unpaid leave when it comes to their attention that the employee or family member is suffering a serious medical condition.

 

Generally, employers may legally talk to an employee about a medical situation if the goal of the conversation is to assist the employee's performance in the workplace or to explore entitlement to FMLA unpaid leave. 

 

Talking to Doctors

 

Employers need information from doctors or other health care providers regarding:

 

·        The duration of a condition or limitation.

 

·         Any substantial limitation in physiological functioning.

 

·         The degree of restriction or limitation as it relates to what the employee does at work.

 

The ADA provides a certification process for communicating with medical professionals or employers by requesting the employee's signature on a HIPAA-Compliant Authorization for Release of Medical Information form. 

 

The ADA allows direct communication between employer and doctor.

 

The FMLA also provides a medical certification process.  An employer must provide written notice to the employee that a certification form will be required before requesting one.  The employee must obtain the doctor's input.  The employer cannot contact the doctor directly.  Failure to give notice of and seek a certification within five days of the request for leave may foreclose the employer from seeking certification.

 

The request for medical information can only be directed at information relating to the serious health condition requiring the leave.  Additional information can be requested only where the leave runs concurrently with workers' compensation leave and information can be requested under the workers' compensation statute, or if the employer has a leave or disability plan which requires additional information to qualify.

 

One of the most significant questions to ask is whether the employee can perform the functions of the job, and employers are allowed to attach a job description or list of functions.

 

Clarifying Medical Opinions

 

Under the FMLA, employers may contact an employee's health care provider to make inquiries related to clarification and authenticity as long as the employee has been given an opportunity to fix any deficiencies. 

 

When speaking with a health care provider, the employee representative should not be the employee's supervisor.  All communication must comply with HIPAA.

 

Fitness for Duty - Use of Medical Information When There are Performance Issues

 

Some employers want to ask for medical information in response to an employee's performance or conduct problem because they believe it might help them to understand why the problem exists and what might be an appropriate response.  Remember that the reasons for the inquiry must be job related and consistent with business necessity.  The scope and manner of any inquiries or medical examination must be limited to information necessary to determine whether the employee is able to perform the essential functions of the job or can work without posing a direct threat.

 

The employer must have objective evidence suggesting that a medical reason is a likely cause of the problem to justify seeking medical information or ordering a medical examination.  An employer cannot require a medical examination solely because an employee is annoying, inefficient or otherwise unacceptable.

 

Employment Action Based on Medical Conditions

 

Of course, employment action cannot be taken based on medical conditions, but on the inability to perform the essential functions of the job.  No laws require the employer to retain indefinitely employees who cannot do the necessary work of the job.  But every instance of employment action with regard to a worker with a disability or serious medical condition must begin with a clear understanding of the expert medical opinions related to that worker. 

 

Managing the Workplace with Workers on Leave or Accommodated for Medical Conditions

 

Of course, the confidential nature of medical information requires that employment action or accommodation or leave be discussed in job-related terms without reference to co-workers about the medical condition or details.  Managers and supervisors must be advised as to proper responses to co-workers about the accommodation or intermittent leave being allowed an employee.  Assuring co-workers that all employees are being treated fairly and consistently, that the employer is fulfilling all obligations with regard to employees and that employees are held to the appropriate job standards, are all possible approaches.

 

Storage and Confidentiality of Medical Information

  

Medical information obtained during a medical examination or inquiry must be collected and maintained on separate forms and in separate medical files and treated as a confidential medical record.  It may not be filed with or in regular personnel files.  Additionally, such medical information must be stored in a locked and secure area.

 The ADA requires that an employer keep confidential medical information obtained during a medical evaluation and during an inquiry into the employee's ability to perform the job.  Supervisors and managers may know only the work-related status or abilities of the employee, not the underlying medical information.  First aid and safety personnel may also be made aware of the condition in some instances. 

Injured worker scenarios trigger a host of employment laws in addition to workers' compensation statutory benefits. That is why our Baylor Evnen Client Seminar for 2011, "Navigating the Intersection of Workers' Compensation and Employment", focuses on both the workers' compensation and employment law perspectives. Please consider registering for this unique and refined look at managing the legal issues in the modern workplace. The seminar date is March 30, 2011, at The Cornhusker Marriott Hotel in downtown Lincoln.  To register, click on the link below.

 

The Baylor Evnen Client Seminar for 2011 delivers boots-on-the-ground insights in cohesively managing what we call The Disability Overlap-multiple laws that impact the same injured worker. Workplace decisions can no longer be based on workers' compensation compliance alone, without the risk of employment litigation.  Employers and claims professionals need an integrated and holistic approach.

 

We recognize strategies that serve the workers' compensation claims interest, but accomplish employer goals in the workplace as well.  All presentations offer practical solutions and ways to analyze your own unique employee issues and claims.  The breakout sessions make sure claims professionals and employers will find valuable and relevant information.

 As has been pointed out in recent editions of this article, Nebraska courts seem to host fewer and fewer civil jury trials with each passing year.  In the 1980s, when our annual report on jury verdicts began, the district courts in Lincoln and Omaha often had 25 or more cases awaiting trial at any given time.  Today it is not uncommon for a district court jury term to start and end without a single civil case having been tried.  Nevertheless, with a very few exceptions, Nebraskans remain quite conservative when called upon to serve as jurors, as evidenced by the awards described below.
 

 

  

Douglas County

Young v. Allstate Insurance Co. was an underinsured motorist suit which arose following a rear-end accident which occurred at an Omaha intersection.  The accident caused sprains in the plaintiff's lumbar and cervical spine along with related headaches.  The plaintiff, a woman in her mid-thirties employed in human relations at Boys Town, claimed medical expense of $20,238.77 and lost income of $7,643.93.  There was no evidence of permanency offered at trial.  The jury was directed by the court that the plaintiff's medical expense was incurred as a proximate result of the accident and found in the plaintiff's favor in the sum of $25,238.77.  The underlying tortfeasor's insurer had previously paid the plaintiff $50,000.00, so Allstate was not required to make any further payment following this judgment.

 

The plaintiff in Carlson v. Bird claimed she was injured when her vehicle was hit from the rear as she slowed for a speed bump.  The defendant admitted that his negligence proximately caused the accident.  The plaintiff had generalized complaints of pain in her head, neck, low back, left shoulder and left leg.  She underwent numerous diagnostic tests in the first year after the accident and, though no surgery was ever performed, she incurred medical expense of approximately $37,000.00.  Her MRI exams revealed significant degenerative issues, and she underwent several epidural steroid injections in her quest for pain relief.  The defendant offered to confess judgment for $15,000.00.  The jury returned a verdict for the plaintiff in the sum of $8,063.00.

 

In another UIM case, the plaintiff in Fava v. Farmers Insurance Group was injured when her vehicle was struck by another car which violated a red light at an Omaha intersection.  The plaintiff, a female administrative assistant in her early fifties, sprained her wrist in the accident and sustained other soft tissue injuries.  She incurred medical expense of approximately $12,000.00 and lost wages of slightly over $2,000.00.  She settled for the tortfeasor's liability limit of $25,000.00. The jury, in a 10-2 verdict, fixed her damages at $49,648.41.

  

The plaintiff in Huber v. Rohrig was a passenger in a vehicle which was struck by the defendant's vehicle after he allegedly disregarded a red traffic light.  Among other more standard allegations of negligence, it was claimed that the defendant operated his vehicle at the time of the accident while he was under the influence of alcohol.  The defendant admitted that his negligence proximately caused the accident, presumably to render irrelevant evidence of his alcohol consumption.  The plaintiff, who was a 20-year-old psychology student at the time of the accident, claimed that the accident caused her traumatic brain injury with cognitive deficits and injuries to the soft tissues in her neck and back.  Her neuropsychologist testified that her cognitive deficits were permanent and her primary care physician testified that she sustained permanent injury to her neck and back.  She incurred approximately $35,000.00 in medical expense and wage loss of less than $5,000.00.  She also claimed a substantial impairment to her earning capacity as a result of the accident.  The jury awarded the plaintiff $24,400.00.

  

In Privett v. Liss the defendant's vehicle struck the plaintiff's vehicle when it spun out of control as the defendant attempted to merge with expressway traffic from an on-ramp at too high a speed.  The defendant admitted negligence.  The plaintiff, a male pipefitter in his forties, sustained a low back injury as a result of the accident.  He further alleged that his umbilical hernia was proximately caused by the accident.  He incurred $25,644.00 in medical expense, including the cost of the hernia repair.  The jury awarded the plaintiff $62,500.00.

 

Lynch v. Brabec resulted from an accident in which the plaintiff's car was struck from behind as the plaintiff waited at an intersection for a red light.  The plaintiff, a 45-year-old nurse, claimed that the accident caused pain in her upper back and her left leg.  She also claimed pain in the left hip which radiated down the back of her leg as a result of a herniated disk at L4-5.  The plaintiff's neurosurgeon, however, testified that he could not, with reasonable medical certainty, relate the disc herniation to the automobile accident.  The plaintiff incurred medical expense of $23,000.00, plus an additional $2,150.00 for a temporary bed to accommodate her injury.  There was no evidence of either wage loss or diminished earning capacity.  The jury awarded the plaintiff $3,081.15.

 

The plaintiff in Tunning v. Redi-Mix Concrete and Holyoke stopped in the right driving lane of the West Dodge Expressway because there was a pickup ahead of her with its emergency flashers activated.  The pickup stopped in the roadway was owned by the defendant.  Shortly after Ms. Tunning stopped, her vehicle was struck from the rear by a vehicle operated by defendant Holyoke.  Ms. Tunning, who was a bank teller at the time, sustained soft tissue whiplash injury.  She incurred approximately $5,000.00 in medical expense and lost $400.000 in wages. She had not treated for her injuries in more than two years prior to trial and her primary treating physician testified that she sustained no permanent injury as a result of the accident.  The jury awarded her $25,900.00.

 

Williams v. Hrdy arose out of yet another rear-end accident.  The plaintiff was an African immigrant in her mid-thirties who worked for her church.  She claimed myofascial pain syndrome in her back.  Her chiropractor awarded her a three percent permanent partial impairment rating.  Her initial wage loss claim was for $600.00, but after three years she left her job and claimed she could no longer work as a result of her injury.  There was evidence that her wage loss at the time of trial was approximately $70,000.00.  Her medical and chiropractic expense was $39,440.00 and the jury awarded her $40,000.00.

 

Lincoln County (North Platte)

In Austin v. Schuster the plaintiff was a 17-year-old high school girl at the time her vehicle was rear-ended by the defendant's vehicle.  Following the accident she suffered neck pain, left shoulder impingement, snapping scapula syndrome, temporomandibular joint disorder and migraine headaches.  The case was tried approximately nine years after the accident, when the plaintiff was 26 years of age.  Her orthodontist testified that she would require a dental appliance with a future cost of $3,000.00 and her orthopaedic surgeon opined that she would require future shoulder surgery.  The projected cost of the shoulder surgery is unknown.  Her total medical expense was $11,630.00, but there was no evidence of lost income.  The North Platte jury awarded her $45,000.00.

 

Sarpy County (Papillion)

Kernes v. Atlantic Coast Contract Carriers resulted from a rear-end accident which occurred on westbound Interstate 80 in suburban Omaha.  The plaintiff, a 36-year-old state maintenance worker, was driving a dump truck which was struck from the rear by the defendant's tractor-trailer.  Impact was sufficiently severe that the driver of the defendant's semi was extracted from his tractor with the jaws of life.  Mr. Kernes sustained soft tissue injury to his cervical spine.  While there was no damage which required surgical intervention, he was ultimately diagnosed with myofascial pain syndrome.  When he was unable to continue in his capacity as a maintenance worker and truck driver for the State of Nebraska, the plaintiff went through two years of vocational retraining.  Following his vocational rehabilitation he secured employment as a surveyor at an income level comparable to what he earned as a state employee.  Mr. Kernes incurred just over $17,000.00 in medical expense, but offered evidence of nearly $97,000.00 in income loss during his retraining period.  The jury awarded him $150,000.00.

 

Saunders County (Wahoo)

The plaintiff in Palagi v. Thomas and Sutton was a horse shoer in his early fifties who was a passenger in a vehicle operated by defendant Sutton at the time of the accident.  The accident occurred on a two-lane paved county road in a rural area north of Ashland, Nebraska.  Defendant Thomas was driving a semi-truck with a lowboy trailer loaded with large bales of hay.  In preparing to turn left into a private drive, Thomas pulled the semi well to the right so that all the wheels on the right side of the tractor and trailer were off the road surface.  Thomas testified that he activated his left turn signal approximately a quarter mile prior to his turn.  Defendant Sutton, driving a pickup truck, approached from the semi's rear.  She and Mr. Palagi both testified that the left turn signal on the tractor-trailer was not on at any point prior to the accident, but that it was on after the accident.  The investigating officer testified that when he arrived on the scene the left turn signals on both involved vehicles were activated.  Ms. Sutton and Mr. Palagi further testified that the Thomas truck was either stopped or was moving very slowly just prior to the accident.  Ms. Sutton initiated a passing maneuver on the left.  As she began to pass, the truck turned left across her path and the pickup struck the driver's side of the tractor with substantial force.

 

Mr. Palagi and Ms. Sutton, who were living together at the time of the accident but not at the time of trial, both sustained broken bones and severe bruising.  Mr. Palagi incurred medical expense of approximately $22,000.00 and Ms. Sutton incurred medical bills of approximately $20,000.00.  Ms. Sutton's orthopedic surgeon testified that she needed additional knee surgery to properly treat her accident-related injuries.  Mr. Palagi initially sued only Thomas, but later added Ms. Sutton as a defendant.  Sutton filed a cross-claim against Thomas for her personal injury and Thomas cross-claimed against Sutton for approximately $26,000.00 in damage to his semi-tractor.  The jury awarded Mr. Palagi $21,806.65 (essentially his medical expense), but only against defendant Sutton.  It found in favor of Thomas on Palagi's claim.  The jury awarded Thomas $26,108.89 for his property damage on his cross-claim against defendant Sutton.