Up North--August 2008

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August 2008

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

Discussing disabilities with job applicants
Communicating with the Qualified Rehabilitation Consultant (QRC)
Notice of injury requirements under the Minnesota Workers' Compensation Act

Discussing disabilities with job applicants

The Equal Employment Opportunity Commission (EEOC) has various published fact sheets concerning different aspects of the ADA (Americans with Disabilities Act). One of those fact sheets addresses "Job Applicants and the Americans With Disabilities Act." It provides helpful guidance concerning the scope of permissive inquiry when an employer is evaluating prospective employees.

The ADA prohibits any pre-job offer inquiry into disabilities, including medical examinations that would reveal disability or physical limitation. The fact sheet lists examples of questions or lines of inquiry that are prohibited during an interview or on the job application, including:

Do you have a heart condition?
Do you have asthma or any other difficulties breathing?
Do you have a disability which would interfere with your ability to perform the job?
How many days were you sick last year?
Have you ever filed for workers' compensation?
Have you ever been injured on the job?
Have you ever been treated for mental health problems?
What prescription drugs are you currently taking?

Even if a disability or physical limitation is open and obvious, the employer cannot ask the applicant about the condition.

After a job offer is extended, the employer may make the offer contingent on passing a pre-employment physical that includes inquiry into potential disabilities. Consistency is the key to proper post-offer medical inquiry and examination. The employer may ask questions regarding a prospective employee's medical condition and/or require a medical examination only if all prospects for that kind of job are subjected to the same inquiry and/or exam.

If a disability is revealed during the post-offer phase of the hiring process, the employer may only withdraw the job offer if the disability prevents the prospective employee from performing the essential functions of the job, with or without a reasonable accommodation. The employer, upon learning of the disability, would need to perform a reasonable accommodation analysis, before making a final determination as to the contingent job offer. The employer also may have a basis to withdraw a job offer if the prospective employee poses a significant risk of substantial harm to himself or others. The risk of substantial harm has a very high bar before it will act as a barrier to continued employment.

Employers are strongly urged to consult with their corporate counsel before making a decision not to extend an offer, or to withdraw a contingent job offer, based on disclosure or discovery of a disability during the hiring process.

Communicating with the Qualified Rehabilitation Consultant (QRC)

The QRC, or Qualified Rehabilitation Consultant, is a trained and experienced person who provides vocational rehabilitation services to an employee, including medical management services, with the goal of returning the injured employee to work. The QRC should maintain professional objectivity throughout the claim. A QRC must abide by the treating doctor's assignment of restrictions, however. If the treating doctor removed employee from work due to the work injury and the employer and insurer disputes the restrictions based on more liberal work restrictions assigned by an independent medical examination, the QRC may not adopt the restrictions or assessment of the independent medical examination unless the employee and his or her attorney agrees to do so, or a judicial determination is made adopting the opinions of the independent medical examination.

An employer should keep in mind that a QRC providing statutory rehabilitation services is not its representative or confidential ally, although a QRC may be very helpful in achieving the employer's goals in the workers' compensation process. An employer should assume that any communications with the QRC may appear in a future progress report, or in further communication to the employee or the employee's attorney. An employer should not communicate to the QRC any thoughts regarding defense strategy, settlement, investigation or surveillance, unless the employer wants that information shared with the employee and the employee's attorney.

The QRC is an important person to utilize in the return-to-work process, and the employer should keep the QRC advised regarding any developments in the employee's job status, such as a job offer, or presentation of an off work slip or restrictions assigned by the treating doctor. The employer should educate the QRC on the availability of light work or the nature and scope of the physical demands of the employee's job, when relevant. The QRC is the liaison with the medical providers, who may otherwise be unaware of light duty work options, or who may have been misinformed regarding the physical demands of the employee's regular job.

When working with a QRC, it is helpful to understand some of the limitations imposed on a QRC's conduct by the rehabilitation rules. Minnesota Rule 5220.1801, subd. 9 outlines prohibited conduct, including:

Engaging in adversarial communication or activity. Adversarial communication includes, but is not limited to:
- Requesting or reporting information not directly related to an employee's rehabilitation plan;
- Deliberate failure or delay to report to all parties pertinent information regarding an employee's rehabilitation including, but not limited to, whether the employee is a qualified employee as defined in part 5220.0100, subpart 22;
- Misrepresentation of any fact or information about rehabilitation; or
- Failure to comply with an authorized request for information about an employee's rehabilitation.
Providing an opinion on settlement and recommending entering into a settlement agreement.
Making a recommendation about retirement; however, a rehabilitation provider may assist an employee in contacting resources about a choice of retirement or return-to-work.
Failure to take due care to ensure that a rehabilitation client is placed in a job that is within the client's physical restrictions.
Failure to maintain service activity on a case without advising the parties of the reason why service activity might be stopped or reduced.
Failure to recommend plan amendment, closure, or another alternative when it may be reasonably known that the plan's objective is not likely to be achieved.

Notice of injury requirements under the Minnesota Workers' Compensation Act

An employee is required to provide notice of any injury to the employer, unless the employer has actual knowledge of the injury. The notice requirements for reporting an injury are confirmed in Minnesota Statutes section 176.141. Generally, three different notice periods are identified in the statute: 14 days, 30 days, and 180 days.

The 14-day notice period only delays compensation to the employee, rather than barring compensation. Under the statute, an employee is required to give written notice of the injury within 14 days of its occurrence. Until notice is given, no compensation is owed.

However, if the employee fails to give the employer notice of the injury within 30 days of its occurrence, the employee may be barred, in all or part, from receiving benefits. In order for a notice defense to bar the employee's right to compensation for a work injury, the employer must show it suffered prejudice from the untimely report of injury. Employers find that establishing prejudice in order to fully bar the employee from receiving benefits for an otherwise compensable work injury is very difficult. An example of prejudice may be an employer establishing that the delayed notice resulted in delayed medical care that otherwise would have been provided through the workers' compensation insurer, resulting in significantly increased disability, or perhaps resulting in the need for surgery that otherwise could have been avoided. Another example of prejudice may be the inability to conduct a proper investigation, due to destruction of necessary evidence, or unavailability of material witnesses. Even with these potentially prejudicial facts present, successfully asserting a notice defense in response to an employee's claim for compensation is a difficult task.

The most significant time period is 180 days after the occurrence of a work injury. If an employee fails to provide notice to the employer of a work injury within 180 days, the employer and insurer have a significantly increased probability of supporting a denial of the employee's claim for benefits based on untimely notice.

For notice provided between 30 days and 180 days after an injury, whether notice is deemed timely depends on whether the employee can show that "failure to give prior notice was due to the employee's . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent . . . then compensation may be allowed, unless the employer shows prejudice by failure to receive the notice, in which case the amount of compensation shall be reduced by a sum which fairly represents the prejudice shown." Minn. Stat. §176.141.

In cases of Gillette injuries, timely notice is defined by determining when the "employee, as a reasonable person, should have recognized the probable compensability of the injury." See Swenson v. Cal-Mech, 50 W.C.D. 1, 11 (W.C.C.A. 1993). The beginning of the notice period may be defined by the date an employee received a medical report from his or her treating doctor identifying the work activities as the cause of the employee's disablement, for example.

Employers should remember that actual knowledge of an injury results in imputed notice to the employer for purposes of satisfying these statutory requirements. Notice of an injury may not be a formal injury report, it may be informal "awareness" which triggers the concept of legal notice under the Minnesota Workers' Compensation Act. This awareness or imputed notice does not need to come directly from the employee--a co-worker, an attorney or third party may bring to the employer's attention that an injury has or allegedly has occurred. Awareness or suspicion of a possible work injury should trigger further inquiry on the part of the employer.

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.