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  1. #11
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Here is an excerpt of a recent unpublished opinion that dicusses the [i]IMPORTANCE OF THE ER TO ENGAGE IN THE INTERACTIVE PROCESS, and WHAT THE [u]JURY and TRIAL JUDGE HAD TO SAY ABOUT IT WHEN THE ER FAILS TO DO SO....

    I have provided the LINK to the ACTUAL DECISION, and this is a "MUST READ" for ALL CALIFORNIA IWs!!!:

    http://www.courtinfo.ca.gov/opinions/nonpub/B196937.PDF

    ...."October 12, 2006, Schermerhorn filed a motion to amend the complaint to add twoadditional claims: (1) failure to engage in the interactive process and (2) failure to prevent discrimination in violation of FEHA. In early November 2006, shortly before trial, the court granted Schermerhorn’s motion. Schermerhorn later dismissed the failure to prevent discrimination claim, leaving three causes of action in his amended complaint.\

    The jury trial began on November 7, 2006. Schermerhorn, Fischer, Martinich,
    Dr. Nagelberg, and Dr. Bierer all testified, along with the economist who calculated Schermerhorn’s lost earnings and benefits, Schermerhorn’s sister, an official from the DFEH, and two other LAUSD officials.

    Schermerhorn also presented expert opinion testimony from a vocational rehabilitation counselor regarding terminology relating to a patient’s condition in the workers’ compensation context, and from Sande Buhai, a law professor and expert on disability law who described the custom and practice of employers in discharging their duty under FEHA to engage in the interactive process.

    Schermerhorn testified that as a result of the financial straits caused by his unemployment, he was forced to sell real and personal property in an effort to avoid bankruptcy, then ultimately had to declare bankruptcy anyway. He and his family also lost their health insurance and could not afford medical care....

    ...November 30, 2006, the jury found by special verdict that Schermerhorn had an actual or perceived disability; LAUSD had been aware of a need to discuss accommodation of Schermerhorn’s disability; LAUSD failed to participate in good faith in the interactive process to accommodate Schermerhorn’s disability; and that failure to engage in the interactive process was a substantial factor in causing harm to Schermerhorn. The jury found past economic damages of $189,528, future economiclosses of $40,778, past noneconomic losses of $100,000, and future noneconomic losses of $50,000, for a total recovery of $380,306. The jury deadlocked on Schermerhorn’s other two claims, which Schermerhorn dismissed.

    Schermerhorn filed a proposed judgment on December 5, 2006. On December 15, 2006, the court held a hearing on the proposed judgment and entered judgment. LAUSD did not attend the hearing and filed no objections to the proposed judgment until after the hearing.3

    On December 29, 2006, LAUSD filed a motion for a new trial, arguing that the
    evidence was insufficient to show failure to engage in the interactive process, the damages were excessive and unsupported by the evidence, allowing Buhai to testify was prejudicial error, and the jury’s finding of failure to engage in the interactive process without also finding failure to accommodate was contrary to FEHA jurisprudence.

    LAUSD filed a motion for judgment notwithstanding the verdict (JNOV) based upon similar grounds. In its new trial motion, LAUSD also argued that the workers’ compensation benefits that Schermerhorn had received should be offset against his recovery in this case.

    On February 8, 2007, the court denied LAUSD’s new trial and JNOV motions, granted Schermerhorn’s motion for attorneys’ fees, and partly granted LAUSD’s motion to tax costs.

    The court concluded that it no longer had jurisdiction to consider the [Workers Comp] off-set issue, which LAUSD should have raised before judgment was entered.

    On February 15, 2007, the court awarded Schermerhorn $21,836 for costs and $568,108 for attorneys’ fees. LAUSD filed an ex parte application to offsetSchermerhorn’s award of past economic damages with the amount of workers compensation benefits he received. The court denied the application but allowed LAUSD to resubmit its request for offset in the form of a noticed motion, which LAUSD did.4
    The court then denied the motion and awarded Schermerhorn $1,500 in additional attorneys’ fees. LUSD timely appealed from the judgment and the rulings on various posttrial motions....

    DISPOSITION

    The judgment and orders are affirmed. Schermerhorn shall recover his costs and attorneys’ fees on appeal, in amounts to be determined by the trial court.NOT TO BE PUBLISHED. [emphasis added]
    -----------------------------

    So Folks, as you can see, THIS is WHY I keep "hammering away" at you all to LEARN ABOUT YOUR RIGHTS UNDER EEOC/ADA/DFEH, and to have IMPECCABLE DOCUMENTATION WHEN YOU ATTEMPT TO RETURN TO WORK!!!!

    YOU should CYA and WRITE A LETTER TO YOUR ER INFORMING THAT YOU ARE EVOKING YOUR RIGHTS TO THE INTERACTIVE PROCESS/REASONABLE ACCOMODATION PURSUANT TO EEOC/ADA/DFEH, and RESQUEST A RESPONSE IN WRITING. MAIL your letter vis USPS CERTIFIED MAIL RETRUN RECEIPT REQUESTED.

    In ADDTION, DOCUMENT, DOCUMENT DOCUMENT EVERYTHING THAT OCCURS IF YOU AND YOUR ER DO ENGAGE IN THE INTERACTIVE PROCESS!!!!

    As I have pointed out numerous times, THE ER MUST FOLLOW THE INTERACTIVE PROCESS TO A TEE, and this case CLEARLY DEMONSTRATES WHAT HAPPENS TO THE ER WHEN THEY DO NOT!!!!!


    READ and LEARN ALL YOU CAN ABOUT YOUR RIGHTS!!!!!!

    BECAUSE "KNOWLEDGE IS POWER", as the ABOVE CASE DEMONSTRATES!

    Good Luck to you all, and "Happy Reading"!

    Charlie

  2. #12
    Join Date
    Dec 2006
    Posts
    2,165

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    For those IWs who are TTD or "Temporarily Partially Disabled", and actually working on a limited basis, this here is some interesting information concerning being "temporarily disabled" and possibly qualifying as being "disabled" under the ADA, and being protected under the EEOC/ADA against disability discrimination by your Employer:

    http://www.eeoc.gov/policy/docs/902sum.html

    Major Life Activities

    * Examples of major life activities listed in the Title
    I regulations include caring for oneself, performing manual
    tasks, walking, seeing, hearing, speaking, breathing, learning,
    and working.

    * Other examples of major life activities include
    sitting, standing, lifting, and mental and emotional processes
    such as thinking, concentrating, and interacting with others.

    Substantially Limits

    * An impairment is substantially limiting if it
    prohibits or significantly restricts an individual's ability to
    perform a major life activity as compared to the ability of the
    average person in the general population to perform the same
    activity.


    * The determination of whether an impairment
    substantially limits a major life activity depends on the nature
    and severity of the impairment, the duration or expected duration
    of the impairment, and the permanent or long-term impact of the
    impairment.


    * An impairment substantially limits an individual's
    ability to work if it prevents or significantly restricts the
    individual from performing a class of jobs or a broad range of
    jobs in various classes.


    * Although very short-term, temporary restrictions
    generally are not substantially limiting, an impairment does not
    have to be permanent to rise to the level of a disability.
    Temporary impairments that take significantly longer than normal
    to heal, long-term impairments, or potentially long-term
    impairments of indefinite duration may be disabilities if they
    are severe.


    * Chronic or episodic disorders that are substantially
    limiting when active or have a high likelihood of recurrence in
    substantially limiting forms
    may be disabilities
    .


    * An individual who has two or more impairments that are
    not substantially limiting by themselves but that together
    substantially limit one or more major life activities has a
    disability.


    And, even if an individual with a temporary condition, is TTD and trying to engage in a work-hardening program, etc, with their Empoyer, but does NOT meet the criteria as being "disabled", that individual might qualify under ADA as being PERCEIVED as having a "disability" by the Employer....

    Regarded

    * An individual is regarded as having a substantially
    limiting impairment
    if he or she


    * has an impairment that does not
    substantially limit major life activities
    but is treated by a covered entity as
    constituting such limitation,


    * has an impairment that substantially limits
    major life activities only as a result of
    the attitudes of others toward such
    impairment,
    or


    * has no impairment but is treated by a
    covered entity as having a substantially
    limiting impairment
    .


    * An employer regards an individual as having an
    impairment
    that substantially limits the major life activity of
    working if it treats the individual as having an impairment that
    disqualifies
    or significantly restricts the individual from
    working in a class of jobs or a broad range of jobs in various
    classes.


    The issues concerning EEOC/ADA and disability discrimination are VERY complex, but as you can see, the Employer has SIGNIFICANT DUTIES and OBLIGATIONS to its Employees and IWs, regardless if the physical and/or mental impairments are PERMANENT or "TEMPORARY"....

    The determination as to whether of not an individual meets the ADA's criteria of being "disabled" or being REGARDED or PERCEIVED as having a disability, can only be determined on a "case-by case" basis....

    Therefore, if you think that YOU are potentially being discriminated against by your Employer because of your inuries and impairments, whether they are INDUSTRIAL OR NOT in origin, you MUST at LEAST consult with an EXPEDRIENCED LABOR LAW ATTORNEY, and contact your local EEOC office, and any and ALL OTHER Federal and State Agencies that handle Disability Discrimination and Labor Law, ASAP...

    It is highly possible that you can have MORE than one claim for disability discrimination under [I]FEDERAL and STATE [/I]anti-disability discrimination laws....

    There are STRICT DEAD-LINES for filing complaints through the EEOC and other agencies, as well as for filing CIVIL actions, and if you MISS the deadlines, then you may be OUT OF LUCK...

    Good Luck to all....

    Charlie

  3. #13
    Join Date
    Jun 2008
    Location
    ky
    Posts
    27

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accommodation

    If an agreement is not reached through mediation and investigators decide there is a case for discrimination what happens then? Am I required to get an attorney on my own, if so does anyone have any info? I was offered $2600 and I don't think this is adequate.
    Last edited by nothappyinky; 10-27-2008 at 11:53 AM.

  4. #14
    Join Date
    Jul 2008
    Location
    California
    Posts
    1,898

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    This is a link to a thread that has relevant information to this issue...this is for the state of California.

    http://www.workcompforums.com/ca/pro...&threadid=5195

  5. #15
    Join Date
    Oct 2011
    Posts
    147

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Charles!!! Thank you, thank you, thank you!! I am in California and I have a case which the DFEH is investigating based on the documentation that I provided to prove my claim. Others have said that until you are at MMI that there is no "teeth" to an ER not observing your work restrictions, but in my case, the DFEH had said that wasn't true.... and I was banging my head up against the wall.... "how can they just ignore my doctors report and restrictions, not accommodate,and then write me up for disruptive behavior and put me on paid admin leave when I insist they do so? They also never said work was not available, so I couldn't go on TTD, but once my doctor took me out because I told him they weren't observing my work restrictions, they accused me of abandoning my job, refusing work, and my began to dispute my WC claim. I kept thinking, "why can't anyone see through this?" I will keep you posted on what happens, even though it may takes MONTHS. Thanks again for the super helpful info!! YOU ROCK!!

  6. #16
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Others have said that until you are at MMI that there is no "teeth" to an ER not observing your work restrictions, but in my case, the DFEH had said that wasn't true.... and I was banging my head up against the wall.... "how can they just ignore my doctors report and restrictions, not accommodate
    There is NO LAW, anywhere, that requires your ER to provide light duty, or modified work while you are treating/recovering from an work related injury.
    IF the ER cannot provide the modified work, or you are unable to perform the basic job functions of light duty... you go back to your PTP, and get your status changed to TTD. Your ER does NOT make the medical decisions, is NOT responsible for monitoring your activities at work or home. You don't need to argue with the ER about what work may or may not be available, or their business decisions on staffing.

    In WC benefits are due based on your status...TTD, TPD, PPD etc. Your ER does NOT have to permit you to return to work until you reach P&S/MMI...then and only then do have have to address a valid job offer.
    They also never said work was not available, so I couldn't go on TTD, but once my doctor took me out because I told him they weren't observing my work restrictions, they accused me of abandoning my job, refusing work, and my began to dispute my WC claim. I kept thinking, "why can't anyone see through this?"
    If your PTP released you to return to work with restrictions... YOU and the ER/IC should have had this discussion prior to your continuing to work. Your ER doesn't have to "observe" your restrictions...YOU DO. All your ER should be doing is to agree to a light duty/modified work schedule and/or job function. You monitor your activities...you are the one who has to say "no, I cannot do that"...You are the one to go back to your PTP.

  7. #17
    Join Date
    Oct 2011
    Posts
    124

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Does anyone know what ada laws are specific PA. I was told that until I am at 100% no restriction that my manager does not have any work for me. I did go back with restrictions and worked a month on half days and i was told my job is not part time on several occasions. I then tried to retun to full time but have restriction on lifting etc even though my job is not considered a labor instensive job but rather an office type job there are occasional times you might need to lift something somewhat heavy. I do not know what to do. I do have atty working on WC but seems ADA is a seperate issue. I also know if my doc removed all restriction to apease my boss I would then be terminated becasue i have already been replaced so what are options at this point. i can work just not to the extent i was and it will be difficult to earn what I had been earning if I have to take a another job. Part of my restriction from one of my docs list reasonable accomodations and they will not abide by these so do I need to spell out the ADA law for them or wait to see I get terminated and then persue an ADA suit.
    Last edited by jinga; 04-07-2012 at 04:41 PM.

  8. #18
    Join Date
    Feb 2007
    Location
    Charlotte, NC
    Posts
    3,048

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    The ADA is federal law and applies everywhere in the US. Unfortunately, conservative federal judges have limited the usefulness of much of it with restrictive court decisions with regard to what is a disability under the Act. Congress cleaned it up a bit a year or two ago, but the problem still persists with conservative judges trying to minimize the impact of it on businesses.

    If you think you may have a claim under the ADA, the first thing you should do is talk to an employment lawyer. You should do this before you file a claim with the EEOC, as the lawyer can help you draft the complaint in the most effective way. Employment lawyers typically charge for initial consultations, so expect to spend a little money for this help.

    Many states also have a "mini-ADA" as part of their state law, and the enforcement mechanism will likely be different from the EEOC. Again, talk to an employment attorney in your local area for some expert guidance.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney at Law

  9. #19
    Join Date
    Feb 2007
    Location
    Calif
    Posts
    18,011

    Default Re: Ada and State Anti-discrimination Laws, RTW and Reasonable Accomodation

    Congress did change the definition of "disability" under ADA...

    It would also help if you understand the difference between work restrictions your Dr places on you due to your injury, and what a "reasonable accommodation" is...
    Facts About the Americans with Disabilities Act
    Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.

    An individual with a disability is a person who:

    Has a physical or mental impairment that substantially limits one or more major life activities;
    Has a record of such an impairment; or
    Is regarded as having such an impairment.
    A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

    Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
    Job restructuring, modifying work schedules, reassignment to a vacant position;
    Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
    An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:

    A deaf applicant may need a sign language interpreter during the job interview.
    An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
    A blind employee may need someone to read information posted on a bulletin board.
    An employee with cancer may need leave to have radiation or chemotherapy treatments.
    An employer does not have to provide a reasonable accommodation if it imposes an “undue hardship.” Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

    An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

    An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one. if an employer believes that a medical condition is causing a performance or conduct problem, it may ask the employee how to solve the problem and if the employee needs a reasonable accommodation. Once a reasonable accommodation is requested, the employer and the individual should discuss the individual's needs and identify the appropriate reasonable accommodation. Where more than one accommodation would work, the employer may choose the one that is less costly or that is easier to provide.

    http://www.eeoc.gov/facts/fs-ada.html
    Based solely on the info you have provided here... IMHO, you don't have a ADA/EEOC complaint.
    If your ER cannot make light duty/modified work available due to restrictions, prior to your being released to return to full duty, with/without restrictions...you go back to a TTD status.
    Your ER is not requiered to provided modified or light duty, nor address the potential of a job until you have recovered and been released.

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