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No reinstatement if you can't do the work

Oklahoma Employment Law Letter - March 2012

By Charlie Plumb

In most instances, employees who take Family and Medical Leave Act (FMLA) leave for a work-related injury are entitled to reinstatement when their doctor releases them to return to work. But what happens when there’s a question about an employee’s ability to perform his job when he’s released from medical care?

 
The job and back problems

In the summer of 2001, Terry DeGraw began working as a material handler at Exide Technologies. His employment lasted until January 2007, when he was let go. In addition to driving a forklift, DeGraw was required to lift batteries weighing up to 80 pounds and walk, sit, lift, bend, and twist. He had back problems long before he began working as a material handler.

During his six years at Exide, DeGraw missed work three times and took FMLA leave because of back injuries. One flare-up required him to miss work in June and July 2006. That summer, he saw a Dr. Hanson, the employer’s physician. Dr. Hanson reviewed his medical records and ordered a CT scan. DeGraw received epidural steroid injections that summer, and Dr. Hanson eventually released him to return to his job at Exide.

Two weeks after returning to work, DeGraw complained about back pain. He spoke with his supervisor and again went on FMLA leave. Exide told him he couldn’t return to work until he received a medical release.

For the next few weeks, DeGraw saw a number of doctors, receiving multiple treatments for his back. In November, one of his personal doctors released him to return to work, but Exide sent him back to Dr. Hanson. In December, Dr. Hanson reviewed his medical history and scheduled an MRI of his back. After reviewing his history and conducting several exams, Dr. Hanson refused to release him to return to his job at Exide.

Exide discharged DeGraw in January 2007 because there was no job he could work that was consistent with Dr. Hanson’s restrictions. DeGraw filed a lawsuit asserting he was fired in retaliation for filing a workers’ compensation claim and taking FMLA leave. He argued that his own doctor had cleared him to return to his material handler’s job, disputed Dr. Hanson’s medical conclusions that he couldn’t resume working for Exide, and criticized the nature and thoroughness of his exams.

 
Relying on Hanson

To defend against McGraw’s claims of retaliation, Exide had to show its decision was based on legitimate non-retaliatory reasons. In this case, the issue was whether Exide “honestly believed” DeGraw wasn’t capable of performing his job based on his medical condition. The question wasn’t whether the company was right but whether it had a good-faith belief that De-Graw couldn’t perform his former job without the very real possibility of re-injury or aggravation of his back condition.

The court rejected DeGraw’s retaliation claim and decided Exide was entitled to rely on Dr. Hanson’s conclusions. Although DeGraw was critical of him because he was “the company’s doctor,” Exide acted reasonably in relying on his conclusions. That’s because he had conducted reasonably thorough exams and taken DeGraw’s medical history and unsuccessful course of past back treatment into consideration. DeGraw’s pattern of recurring back injuries further supported Dr. Hanson’s conclusions and Exide’s reasonableness in relying on his recommendation. DeGraw v. Exide Technologies, Case No. 10-3303 (10th Cir., 2/10/12).

 
Bottom line

Oklahoma’s workers’ comp law and the FMLA both protect an individual’s right to return to his job after an injury or medical leave. An employer that doesn’t intend to return an employee to his former position must have competent medical information establishing that he isn’t physically capable of performing his former job. Otherwise, you may face a claim of discrimination or retaliation.