The Americans with Disabilities Act extends the ability of workers with disabilities to be employed with reasonable accommodation. Medical examinations and review of prior medical records are frequently necessary for a vocational expert to comment on what jobs can be done by an individual with a disability and what the earning capacity would be. The vast number of ADA examinations are for pre-employment purposes. The use of ADA for examinations of workers in serious comp claims has received little attention.
In serious workers comp claims, precisely the same issues relevant to a pre-employment ADA exam appear about a year after date of accident, a time at which a permanent rate of disability and amount of wage loss in NY claims will be considered. Settlements will also be discussed.
Using New York as an example (settlement procedures vary widely from state to state), an ADA examination and conference can be an effective RTW strategy and greatly reduce post-injury loss of earnings. In addition, ADA compliance is not subject to oversight and regulation by state workers comp agencies. Nor does an ADA medical exam count as a workers comp IME.
The ADA compliance exam must be done by the employer as part of a good faith effort to return a worker to employment. The worker, however, must indicate an interest in return to work for the employer; the exam cannot be forced.
A typical procedure might be as follows, subject to many modifications under collective bargaining agreements.
- After a reasonable period, the employer may ask the worker if there is interest in returning to work, on a trial basis and with reasonable accommodations.
- 2. A face-to-face conference may be scheduled, with spouse present, to discuss the possibilities and the wages which would be paid.
- A medical exam may be necessary to determine what accommodations might be necessary.
- A vocational expert should compose a report and comment on wage earning capacity.
- An effort to place the worker into a suitable job must be made.
In NY, settlement figures for comp PPD claims cluster at 50% disability, resulting in many claims with over $400/wk. rates. With a proper ADA program, many of these can be held to $100/wk., less, or even no wage loss.
A fact known to nearly every Social Security disability attorney is that the spouse is usually highly supportive of RTW, not extended disability. Involving the spouse in RTW discussions will produce far better results.
The ADA exam and conference are part of the employer/employee relationship, not the workers comp claim, and are therefore outside the control of a comp board.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
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