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Brictson and Cohn has over 40 years experience in Workers' Compensation Law. Attorney Tim Brictson has been the speaker at legal seminars provided to educate other attorneys practicing in this area of law. Our attorneys regularly handle the most serious and complex of these cases and have been involved in hundreds and hundreds of depositions, hearings and trials at the San Diego Workers Compensation Appeals Board and throughout California. Brictson and Cohn has obtained numerous large settlements and awards for our clients.

Because of our experience in related fields of law we are able to look at every case to see how we can maximize our client's recovery. This includes tying the workers' compensation case in with other areas of law such as a civil case against third parties (i.e., if the work injury was the fault of someone other than the injured worker's employer there may be a civil case which could provide the injured worker much more money than could be obtained by only a workers' compensation case).

Below is some information provided to answer some common questions and concerns:

I) PRE-INJURY

A) Pre-Designation of Free Choice Treating Physician.

California Code of Regulations §§9780 & 9780.1

Employees may be treated of a physician of their own chosing for a workers’ compensation injury IF:

•

Employer offers group health coverage

•

Employee advises the employer in writing prior of the selection pre-injury

•

Physician is employee’s “regular” physician: e.g. internal / family obstetrician-gynecologist

•

Employee can name a medical group [see below]

•

Physician previously directed employee’s treatment, & retains employee’s records

•

Physician consents to being designated [see below]

Proof of Physician’s Consent

Cal. Code Reg.s § 9780(a)(3):

The personal physician may sign the optional predesignation form (DWC Form 9783) in section 9783 as documentation of such agreement. The physician may authorize a designated employee of the physician to sign the optional predesignation form on his or her behalf. If the personal physician or the designated employee of the physician does not sign a predesignation form, there must be other documentation that the physician agrees to be predesignated prior to the injury in order to satisfy this requirement.

Employee Can Name Medical Group As Personal Physician:

Cal. Code Reg.s § 9780(f):

"Personal Physician" means (1) the employee's regular physician and surgeon, licensed pursuant to Chapter 5 (commencing with section 2000) of Division 2 of the Business and Professions Code, (2) who has been the employee's primary care physician, and has previously directed the medical treatment of the employee, and (3) who retains the employee's medical records, including the employee's medical history. "Personal physician" includes a medical group, if the medical group is a single corporation or partnership composed of licensed doctors of medicine or osteopathy, which operates an integrated multispecialty medical group providing comprehensive medical services predominantly for nonoccupational illnesses and injuries.

Prior Designations Are Valid, if Physician Is Qualified

Cal. Code Reg.s § 9780(b):

If an employee has predesignated a personal physician prior to the effective date of these regulations, such predesignation shall be considered valid if the conditions in subdivision (a) have been met.

B) Why Employee Should Predesignate Personal Physician

Without Predesignation, Employee is essentially limited to treating within the MPN

Labor Code§ 4616.3

a) When the injured employee notifies the employer of the injury or files a claim …

b) The employer shall notify the employee of his or her right [yeah, “right”] to be treated by … medical provider network.

c) If an injured employee disputes… employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network.

Labor Code §4616.4(b)

If, after the third physician's opinion, … employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3.

So ONLY PRE-DESIGNATION Gets Employee Out of the MPN

Cal. Code Reg.s § 9780(c) & (d)

(c) Where an employer or an employer's insurer has a Medical Provider Network pursuant to section 4616 of the Labor Code, an employee's predesignation which has been made in accordance with this section shall be valid and the employee shall not be subject to the Medical Provider Network.

(d) Where an employee has made a valid predesignation pursuant to this section, and where the employer or employer's insurer has a Medical Provider Network, any referral to another physician for other treatment need not be within the Medical Provider Network.

Employee’s Privacy is Protected

Cal. Code Reg.s § 9780(f):

(f) Unless the employee agrees, neither the employer nor the claims administrator shall contact the predesignated personal physician to confirm predesignation status or contact the personal physician regarding the employee's medical information or medical history prior to the personal physician's commencement of treatment for an industrial injury.

DWC DOES NOT ACTUALLY MONITOR MPN

“DWC does not have any mechanism to if approved MPNs are functioning according their approved applications. However, a complaint tracking system has been put in place and so far DWC has received 83 complaints. Most of the complaints regarded insufficient provider listings given to the injured workers.” The California Commission on Health and Safety and Workers’ Compensation, Selected Indicators in Health and Safety and Workers’ Compensation, A Report Card for Californians, December 2007

II) INJURED ON THE JOB

A) What’s’ Covered?

ALMOST everything.

The California Labor Code provides that "injury" includes these occurrences:

•

Injury to the body.

•

Injury to artificial members.

•

Injury to dentures.

•

Injury to eyeglasses but only if as incident to an injury causing disability.

•

Injury to hearing aids but only if incident to an injury causing disability.

•

Contracting or developing a condition classified as a disease.

•

Psychiatric injury also referred to as injury to the psyche, or Stress Claim.

•

Reaction to or a side effect arising from health care provided.

•

Injuries occurring on the way to or from events necessitated by workers’ compensation claim (e.g. car accident on the way to the work. Comp. doctor).

B) What’s Not Covered?



Intoxication



Intentionally Self Inflicted



Initial Physical Aggressor



Felonious Act



Recreational Activities



Going & Coming To Work [Covered once you get to parking lot or “Zone of Danger”]



Personal Attacks Without Regard to Employment or Place of Employment



Skylarking / Horseplay



Material Deviation of Duties

The Workers’ Compensation Bargain: Employee fault is Compensable & Employee being at fault is Protected

Unless the employee was injured by:



A Third Party’s Negligence (e.g. auto accident, subcontractor);



Assault by employer;



Defective machinery;



As a result of discrimination (race, national origin, sexual preference, etc.);



As a result of a violation of Public Policy (e.g. sexual harassment);



By a "Power Press";



Employers fraudulent concealment of the existence of injury; or



While working for an illegally uninsured employer;

Employee only entitled to workers' compensation benefits:

• No Pain & Suffering

• No Punitive “Damages”

The System is Designed to Short the Employee

"The purpose of the award is not to make the employee whole for the loss which I e has suffered but to prevent him and his dependents from becoming public charges during the. period of his disability.... In short the award transfers a portion of the loss suffered by the disabled employee from him and his dependents to the consuming public .... Complete protection is not afforded the employee from disability because this would constitute an invitation to malinger or to be careless on the job as he would then lose nothing in assuming a disabled status."

West v. Industrial Accident Com. (1947) 79 Cal. App. 2d 711, 721, 180 P.2d 972.

Where the Employee Might Get Fully Compensated

An injured worker may be entitled to civil remedies (i.e. [real] damages, pain & suffering, wage loss, property damage, etc.) in the following instances:

• Injury Caused Third Party

Auto Accident,

Slip & Falls At Non-Employer Property,

• Injury Caused By Subcontractor Or Someone Other Than Employer Or Co-Workers

• Injury Caused By Medical Malpractice;

• Assault By Employer;

• Defective Machinery;

• As A Result Of Discrimination

Disability

Race / National Origin /Color

Sexual Preference

Gender

• As A Result Of A Violation Of Public Policy

Sexual Harassment

Racial / Color / National Origin Harassment

Sexual Preference Harassment

Whistle Blower

• As A Result Of An Invasion Of Privacy

• By A "Power Press";

• The Employers Fraudulent Concealment Of The Existence Of Injury;

• While Working For An Illegally Uninsured Employer

THIRD PARTY CASES

When an employee sustains a work-related injury, recovery of workers’ compensation benefits is often the employee’s exclusive or only remedy against the employer. The employer may end of paying additional monies or damages under that workers compensation claim if the injury was the result of serious or willful conduct on the part of the employer (Serious and Willful claim) or when the employee is discriminated against for filing a workers compensation claim (132a claim). In addition, subsequent improper treatment of the employee by the employer after he is injured may also result in claim against employer such as an American with Disabilities Claim.

Definition Of Third Party Claims

When an employee is injured in the course and scope of employment as a result of a negligent third party, the employee has the right to pursue a claim against the third party in addition to pursuing a workers’ compensation claim.

Negligent Third Party:

Persons other than the employer or the employers’ workers such as:

Independent contractors or their employees

Unrelated persons

Advantage of pursuing third party claims

An injured employee can obtain damages which are not recoverable under a workers’ compensation claim and/or which are often much larger than what can be recovered under the workers’ compensation claim:

Pain and suffering. Damages for pain and suffering are generally not recoverable under a workers’ compensation claim. These damages (pain of surgery, ongoing pain, etc.) may be very large and are recoverable in a third party case. A broken arm may not be worth anything in a workers compensation settlement if the worker can return to full duty without restriction. The pain and suffering associated with a broken arm is worth considerable money that can be awarded under a third party claim. Lifetime shoulder pain may only have limited value under a workers’ compensation claim where the settlement is based on the person’s ability or capacity to return to work. The lifetime of pain and suffering can be worth considerable money under a third party claim.

Wage loss/Employment Benefits. Workers’ compensation usually does not pay for all wage loss or other lost employment benefits. In third party cases the third party is liable for all damage reasonably caused by the accident or injury.

Examples of cases

Third party - Client was on a ladder when he was “touched” by a dangling wire, which shocked him and caused him to fall from the ladder. The wires that were hanging from the ceiling, had electricity running through them, and were exposed with metal showing. The day before the owner / manager of the real property had taken the lighting systems out and had left the hot dangling wires in the condition Client found them in. The owner / manager of the job who is not the employer of the injured worker was liable under a third party claim.

Third party – Client working above lid or ceiling on job. General Contractor failed to provide wood above the lid and Client was forced to use the top of the block walls to get around above the lid. Unknown to Client, the General Contractor removes the block wall from below and patches ceiling creating a “trap”. Client falls and is seriously injured. Client collected third party damages from General Contractor.

Motor Vehicle – Client is involved in motor vehicle accident while working when another driver lost control of her car in the rain and came across yellow line and crashed head on into his work truck. Client sustained serious injury to his shoulder and spine. The pain and suffering for his injuries are recoverable from the third party driver.

Product Liability – An injury caused by defective products. Example is a Client who had equipment he was using malfunction resulting in his clothing catching on fire and causing extensive burns to chest and right arm. Other cases have involved collapse of ladders, etc. The person who designed the product was not the employer of the injured worker so there is a possibility of a third party claim.

Premises liability – slips, trips and falls on premises where work being performed by injured worker. An example is an injury caused by defective stairwell causing fall. Other examples include defective scaffoldings.

Medical Malpractice – a doctor providing services to an injured worker is negligent in his medical treatment of the worker. An example is a doctor improperly performing a spinal fusion on the Client, which resulted in significant nerve damage and partial paralysis.

Catastrophic/Severe Injuries – if the injury to the worker is deemed to be significant special attention should always be paid to determine if there is any possible third party case. In these cases Brictson and Cohn consider it especially important that we immediately hire an outside investigator to obtain statements, investigate the scene, obtain photographs of the scene, photographs of the injured employee depicting injuries, determining location and status of viable third party tortfeasors, obtaining any applicable incident reports, etc. on behalf of our client.

Other Third Party Cases

Our firm regularly handles many types of serious injury cases that did not happen at work or during the course and scope of a person’s employment and involve also third party liability. These include:

Motor vehicle accidents; Motorcycle Accidents; Pedestrian Accidents; Watercraft Accidents; Animal attacks; Slip/Trip/Falls; Assault & Battery; Medical Malpractice; Wrongful Death; Trucking Accidents.

Statute of Limitations

Watch out for statute of limitations: All third party cases including those stemming from a work accident or injury involve various statute of limitations or deadlines by which a person must take a specific action such as filing a lawsuit or claim form. Failure to take the proper action can result in the injured person being precluded from receiving any monetary recovery. These statute of limitations vary depending on the nature and type of case.

WHAT TO DO WHEN INJURY OCCURRS

A) Employee Must Prove his Claim

Prior to April 2004, the Workers' Compensation Law was to "liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." NOW:

Injured workers have the burden of proof to prove their claims by a "preponderance of the evidence" mean[ing] the employee's evidence, when weighed against the employer's evidence, " has more convincing force and the greater probability of truth." Cal. Labor Code §3210.5.

B) Proof Is Essential

•

Note the names of anyone there;

•

Save any device involved is saved to show later;

•

Write notes to yourself that day of who, what, where, when & how.

That is, start getting ready for trial.

REPORT it to your supervisor COMPLETE a claim form:

list ALL the parts involved

broken, bruised, jammed, twisted, scrapped, knocked, bumped or jolted

SUBMIT the form to human resources & ask them to write the date & their name

KEEP a copy,

GET medical treatment,

KEEP IN CONTACT with your supervisor about light duty or time off.

KEEP A DIARY of what happens every day the day it happens

KEEP COPIES of all documents you give or receive

PROTECTING YOUR RIGHTS IS A JOB. TREAT IT AS SUCH.

C) Don't Talk About Your Health

Prior to April 2004, an employer took his employees as he found them: "you break ‘em, you buy 'em.” It did not matter if the employee was particularly fragile; the employer was responsible for all permanent disability resulting from the industrial injury.

NOW:

The reporting "physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury ... and what approximate percentage of the permanent disability was caused by other factors ... "

THE INJURY

Traumatic Injuries

Refers to injuries caused by application of force. The term is also applied to traumatic neurosis, hysteria, or other medical condition resulting from a physical injury or shock.

Repetitive trauma

Refers to gradual onset of damage to some part of the body caused by repeated activities occurring in the employment.

Lighting up a Pre-existing Condition.

Even incidents that might be insufficient to cause injury or that might cause an injury from which recovery would be expected in a healthy person may aggravate or "light up" a preexisting condition or disease are covered.

Industrial or Occupational Disease

Injuries caused by something other than trauma. For example:

•

a nurse contracts polio or tuberculosis from a patient

•

Toxic poisoning from industrial chemicals

•

Silicosis and asbestosis

•

hearing loss from industrial noise

•

"Special exposure" refers to the rule that if the disease in question is one to which everyone is exposed in daily activities, whether at work or elsewhere, the employee may not recover workers' compensation benefits unless he or she has undergone an exposure particularly related to work. For example, agricultural workers special exposure to San Joaquin Valley Fever caused by organisms that ie dormant in the soil, or teacher's increased susceptibility to germs carried by students.

STRESS CLAIMS / Mental disorders

are recognized as industrial injuries if caused by an industrial physical injury, a so-called "traumatic experience," or factors inherent in the work environment. These are known as “Stress Claims.”

BUT:

An employee with a mental disorder or Stress Claim must prove that "actual events of employment" caused at least 50 percent of the total causation from all sources causing the injury.

AND NO STRESS INJURY COVERAGE FOR

•

non-discriminatory good faith personnel actions

•

Employees with less than 6 months service

unless the mental disorder is caused by a “a sudden and extraordinary employment condition” ,e.g. assault, robbery, etc.,)

•

Post-Termination claims

Unless



notice of injury before notice of layoff or termination or



medical records show pre-notice treatment



caused by sexual or racial discrimination

132A & SERIOUS AND WILLFUL CLAIMS

132 a claim

A 132a claim may be filed if the employer fires or discriminates the employee for filing a workers' compensation claim, or furthering another employee’s claim. A successful 132a claim provides for a 50% increase in benefits, with a cap of $10,000, and all lost wages. A special petition must be filed with the WCAB within one year of the incident.

Serious and willful misconduct Claim

A claim for Serious and Willful Misconduct claim alleges that the injury was caused by the serious and willful of the employer or the employee. Injuries caused by the intentional acts (e.g. battery) or Cal-OSHA Regulations violations may constitute the basis for such a claim. This provides for a 50% increase in benefits, without a cap, against the employer, or a 50% decrease of benefits if against the employee. A special petition must be filed with the WCAB within one year of the incident.

COURSE OF THE CLAIM

Cal. Labor Code §§ 5401 & 5402

Employer has to give claim form to employee upon reasonable notice of injury.

Employer has 90 days to deny claim upon receipt of claim form, otherwise it’s deemed covered.

Employer has to pay for up to $10,000 of treatment while investigating claim.

Medical Releases

Never sign a blank medical release.

Employee does not have to release all information, only relevant information.

Employee does not have to release mental health records if no mental health claim.

Employee does not have to release HIV / drug / alcohol records if not relevant to injury.

Allison v. WCAB (1999) 72 Cal.App.4th 654, 656.

Employer [not the work comp. carrier] is only entitled to

•

the diagnosis and

•

Information necessary to modify employee’s work duties.

Cal. Labor Code §3762

Temporary Disability

Temporary Disability Benefits (“TD”) is paid to an injured worker while their injury precludes them from working, but has not yet reached a “permanent and stationary” status. As a general rule, TD rates are two-thirds of the gross (pre tax) wages at the time of injury, with minimum and maximum rates set by law. Wages are figured out by using all forms of income received from work: wages, food, lodging, tips, commissions, overtime and bonuses. Wages can also include earnings from other concurrent employment.

TD payments begin when the doctor says the employee cannot work for more than three days or is hospitalized overnight. Payments must be made every two weeks. For injuries between April 19, 2004 and Jan. 1, 2008, TD payments do not last more than 104 weeks from the first payment for most injuries. For injuries on or after Jan. 1, 2008, TD payments are a total 104 weeks of disability payments within a five-year period starting at the date of injury. Payments for a few long-term injuries, such as severe burns or chronic lung disease, can go longer than 104 weeks. TD payments for these injuries can continue for up to 240 weeks of payment within a five-year period.

ACOEM Guidelines

The nature and extent of treatment provided is controlled by guidelines created by the American College of Occupational and Environmental Medicine (“ACOEM Guidelines”). Examples of ACOEM Guidelines that most frequently effect injured workers are the following:

•

24-visit cap on chiropractic, occupational therapy and physical therapy services for the life of the claim

•

Beginning 1/1/08, post surgical rehabilitation services are exempt from 24 visit cap, BUT they must comply with guidelines developed by the Division of Workers’ Compensation

•

Generic drug equivalent to be dispensed to injured workers if available unless the prescribing physician provides otherwise in writing

•

Limitations on number and frequency of epidural injections

The employee may be able to get around the ACOEM limitations by establishing that the condition is chronic.

Utilization Review

Utilization review (UR) is the process used by employers or insurance companies to review treatment to determine if it is medically necessary. All employers or the insurance companies handling their workers’ compensation claims are required by law to have a utilization review program. This program will be used to decide whether or not to approve medical treatment recommended by your doctor.

A physician must perform UR denials, but the physician does not have to examine the patient. Prior to treatment, an UR review and decision must be made within five days of the date the doctor requests treatment. The review must occur if the doctor requests an expedited review, where life or limb is at stake. If the carrier needs more time, the insurance company can have up to 14 days. If the doctor does not request advance authorization, the insurance company has 30 days to make a decision upon notice that the service has been performed.

AME / QME PROCESS

The employee has 20 days (30 if employee has an attorney) to dispute an UR denial. If the employee has an attorney, the parties may use an Agreed Medical Evaluator (“AME”) to resolve the dispute.

If the employee does not have an attorney, or the attorney and the carrier cannot agree on an AME, the disputing party must demand a panel of Qualified Medical Examiners (“ Panel QME”s) from the State. The State will issue a random panel of doctors within the requested specialty and geographic area. An unrepresented employee gets to pick one doctor off the list. If the employee is represented, the attorney and the carrier take turns knocking doctors off the list, until there is only one doctor left. The doctor who examines the employee pursuant to this process (AME or Panel QME) is to be used to resolve all future disputes between the parties.

PENALTIES

The carrier may owe a 25% penalty on the value of services or payments unreasonably delayed or denied. However, current case law indicates that “reasonableness” is viewed from a defense perspective.

PERMANENT AND STATIONARY / PERMANENT DISABILITY/ APPORTIONMENT

After the primary treating doctor decides the injury has stabilized and no change is likely, the condition has become permanent and stationary (“P&S”). At that point, permanent disability is evaluated.

In evaluating permanent disability, the doctor determines the level of disability in accordance with the Guidelines for Evaluating Permanent Impairment, published by the American Medical Association. That assessment is described as percentages of a “whole man impairment;” e.g. “25% whole man impairment.” That impairment is then converted to a different percentage pursuant to a formula in the Schedule for Rating Permanent Impairments. That percentage determines the amount of money an employee receives for permanent disability.

Under current law, the value of permanent disability must be reduced by any pre-existing permanent disabilities (apportionment of permanent disability) and any conditions that contribute to the cause of permanent disability (apportionment to causation).

RETURN TO WORK

Work Comp. Work Restrictions Are Not The Same As Work Function Capacity Determinations

The primary treating physician is suppose to render an opinion as to the employee’s capacity to perform the date of injury job. Often the doctors also describe work restrictions, which they think should be considered by the employer in determining the employee’s ability to return to work. Unfortunately, the doctors are still using the pre-2004 permanent disability language to describe an employee’s restrictions, such as: “no heavy work” or “no repeated bending and stooping.” Unfortunately, those terms workers’ compensation meanings do not translate into specific work capacities of the employee, such as a specific weight restriction (e.g. 50 pounds). If there is a dispute as to an employee’s capacity to return to work, and the doctor has not used specific terms of weight (e.g. 50 pounds, 100 pounds, etc.), or time (e.g. 2 hours, 4 hours, etc.), or frequency (e.g. twice a an hour, four times a day, etc.), that doctors’ report is not necessarily determinative. Clarification may be obtained from the doctor through the workers’ compensation system, and a job analysis can also be obtained through the workers’ compensation system. Alternatively, the employer may obtain a fitness for duty evaluation outside of the workers’ compensation system. These issues necessarily imply the employee’s protection under the Americans With Disabilities Act (“ADA”), and the Fair Employment and Housing Act. See below.

Reasonable Accommodation / Good Faith Interactive Process

The California Fair and Housing Act puts an affirmative duty on the employer to engage in a good faith interactive process to explore reasonable accommodations for an employee with a permanent disability to determine whether the employee can perform the essential functions of the job. Cal. Gov. Code §12940(n).

Although the employer does not have to make a position for the employee, telling the employee to apply for open positions like any other job applicant does NOT fulfill the employer’s obligation. The employer must consider reasonable accommodations to both the employee’s current position, and other positions.

Reasonable accommodation of an existing employee requires “more than allowing an employee to apply for a job on the same basis as anyone else.” Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th at 262.

“The interactive process is at the heart of the ADA's process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an 'undue burden' on employers. Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has."

[Id at 261-262.]

Essential Work Functions

Section 12926 of the California Government Code states:

(f) "Essential functions" means the fundamental job duties of the employment position the individual with a disability holds or desires. "Essential functions" does not include the marginal functions of the position.

(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:

(A) The function may be essential because the reason the position exists is to perform that function.

(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.

(C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:

(A) The employer's judgment as to which functions are essential.

(B) Written job descriptions prepared before advertising or interviewing applicants for the job.

(D) The consequences of not requiring the incumbent to perform the function.

(E) The terms of a collective bargaining agreement.

(F) The work experiences of past incumbents in the job.

(G) The current work experience of incumbents in similar jobs.

Failure to Engage In the Interactive Process or Provide Reasonable Accommodations

If the employer refuses to provide reasonable accommodations for an employee with a permanent disability, or reasonably explore accommodations for an employee with a permanent disability, is a violation of California’s version of the ADA, the Fair Employment and Housing Act. Such a violation entitles the employee to compensation for:

•

Money for Lost Past, Present, and Future Wages

•

Money for Emotional Distress Damages (“Pain and Suffering”)

•

Reinstatement (if appropriate)

•

Attorneys fees paid by the employer

Included herein is a checklist you may use when meeting with the employer to determine whether the employer is complying with its obligations, and to preserve evidence for the future.

If you believe that an employee is not being provided reasonable accommodation, or the employer is failing to engage in the good faith interactive process, or if you have questions, please contact us.

REASONABLE ACCOMMODATION CHECK LIST

Date:

Time Start:

Time End:

Persons in Attendance:

A) Physical Capacity / Disability

1) What does the employer believe are the employees work restrictions?

2) What do they base that upon? [i.e. what statements in which medical reports, if any, or alternate sources of information?]

3) Is there contrary medical evidence? [i.e. other medical reports indicating that the employee’s work restrictions are lesser?]

4) Are they using workers’ compensation work restrictions to assess the employee’s limitations? If so, do they define those terms literally or have they translated those restrictions using terms of specific weight, specific times, etc., that can be objectively measured?

B) USUAL & CUSTOMARY POSITION

1) What essential functions of the job does the employer contend the employee’s disability or medical condition cannot be performed without accommodation?

2) Why does the employer contend those are “Essential Work Functions”?

3) How often are those functions performed?

4) How can those functions be accommodated?

Employers Suggestions

Employee’s Suggestions

5) Is the employer willing to hire an ergonomic or vocational expert to explore what is or is not an essential function? If they claim they did that already, who was it?

6) Is the employer willing to hire an ergonomic or vocational expert to explore reasonable accommodations?

C) ALTERNATE POSITIONS

i) What other positions does the employer know are currently available within their organization?

ii) Of the alternate positions:

1) What essential functions of the job does the employer contend the employee’s disability or medical condition cannot be performed without accommodation?

2) Why does the employer contend those are “Essential Work Functions”?

3) How often are those functions performed?

4) How can those functions be accommodated?

Employers Suggestions

Employee’s Suggestions

5) Is the employer willing to hire an ergonomic or vocational expert to explore what is or is not an essential function? If they claim they did that already, who was it?

6) Is the employer willing to hire an ergonomic or vocational expert to explore reasonable accommodations?

D) CONCLUSIONS OR NEXT STEPS OR OCCURRENCES OF NOTE

1) The employer advised that they would take the following actions:

2) Employee was asked to take the following actions:

3) Outbursts or Other Extraordinary Occurrences