Refusing to Return Employee to Work that Poses "High Risk of Re-Injury" Is Not Retaliatory

The Tennessee court of appeals has upheld the dismissal of a workers compensation retaliation lawsuit brought by an employee who was discharged when two board certified physicians determined that if she was returned to work she had a high risk of re-injuring herself. 

The idea that an employer need not return an employee to a job that would be likely to cause future injury is not new.  See Cannon v. Levi Strauss & Co., 29 Fed. Appx. 331 (6th Cir. 2002) (an ADA "regarded as" claim where employer terminated employee because her physician said continued work sewing pants put her at high risk for future carpel tunnel injuries).  What is relatively new is its application to workers compensation retaliation claims (though even here, a decision from years ago had held that an employer did not retaliate against an employee by firing the employee when the employee could not return to work because of a workers' compensation injury).

Yesterday's court of appeals decision today makes this point directly:

There is no evidence in the record that Plaintiff’s filing of workers’ compensation claims played any role whatsoever in the decision not to return her to work. The prohibition against retaliating against employees who file workers’ compensation claims does not guarantee an employee the right to return to work when such return poses a high risk of re-injury. Stated another way, the prohibition against retaliation does not guarantee employees the right to return to work and to continue reinjuring themselves until they are so disabled that they are permanently and totally disabled and can never work again.

Of course, getting to the point of proving that the employee's return to work is likely to cause the employee harm might take some work.  What impressed the court here was that the employer relied upon the advice of "two physicians who are board certified in occupational medicine" (one of whom was the employer's on-site physician).  While relying on a physician who is board certified in occupational medicine clearly helps, the decision does not say that board certification itself is necessary.

What should matter is that the physician has the expertise to make the decision (board certification certainly helps here) and the medical decision evaluates the employee's abilities (as opposed to making assumptions based upon labels).  

Ten years ago, Chattanooga found itself on the wrong end of a disability discrimination decision when it unreasonably relied upon a physician's advice that an HIV positive individual was not qualified to be a police officer.  There, the Sixth Circuit explained why the City's reliance was not reasonable:

Dr. Dowlen's "report" consists of two scribbled lines at the bottom of a boilerplate evaluation form. While the psychiatrist in Pesterfield clearly made an individualized determination as to the plaintiff's medical condition and its effect on his ability to fulfill his job requirements, there is no indication that Dr. Dowlen did anything of the sort. Moreover, the record is replete with factual evidence available to the City at the time --particularly Holiday's successful performance of police jobs that Dr. Dowlen claimed he was unqualified to do -- that flatly contradicted Dr. Dowlen's unsubstantiated conclusion. Under these facts, the City was not entitled to simply rely on the physician's recommendation as the basis for withdrawing its employment offer to Holiday.

Holiday v. Chattanooga, 206 F.3d 637 (6th Cir. 2000).

Employers are often presented with conflicting medical opinions (sometimes from the same physician).  Courts have held that an employer who fairly evaluates competing medical opinions do not discriminate against an employee because of the employee's disability.  Knapp v. Northwestern University, 101 F.3d 473 (7th Cir. 1996) ("in the midst of conflicting expert testimony regarding the degree of serious risk of harm or death, the court's place is to ensure that the exclusion or disqualification of an individual was individualized, reasonably made, and based upon competent medical evidence.").

Presented with conflicting medical information, the EEOC suggests employers consider: 

(1) the area of expertise of each medical professional who has provided information; (2) the kind of information each person providing documentation has about the job's essential functions and the work environment in which they are performed; (3) whether a particular opinion is based on speculation or on current, objectively verifiable information about the risks associated with a particular condition; and, (4) whether the medical opinion is contradicted by information known to or observed by the employer (e.g., information about the employee's actual experience in the job in question or in previous similar jobs).