While the employer has an incentive to return an employee back to work both under the workers’ compensation statute and the ADA, it is generally understood that ADA compliance and/or action cannot be considered in determining the amount of vocational disability an injured worker has sustained. In Black vs. Liberty Mutual Ins., 4 S.W.3d 182 (Tenn. 1999), the trial court limited an employee’s disability rating due to the probability of success in a concurrent ADA action. Id. at 183. Mr. Black suffered an injury to his left leg on September 22, 1995, while working for Roadway Express and after surgery and recovery was left with an eighteen percent (18%) impairment to his leg with a permanent restriction of needing a “cruise control on his truck.” Id. Mr. Black made an attempt to return to work, but his restriction was not accommodated and he was not allowed to return to work. Id. at 184.
The trial court found a thirty-five percent (35%) disability, but provided in the final judgment that Mr. Black “is limited by the probability that he will be successful in an Americans with Disabilities lawsuit presently pending” and directed that if Mr. Black was not successful in that claim that he could return and petition for an increase of his workers’ compensation award. Id. Both parties obviously appealed the ruling.
The Special Panel first held “[t]here is no legal basis for the trial court to reconsider the award based upon the result in the ADA suit” under both reconsideration statutes. Id.
Next, Liberty Mutual argued the Court should consider the Americans with Disabilities Act (ADA) in assessing the amount of vocational disability an injured worker had sustained under the workers’ compensation act. Id. Liberty Mutual also argued that the law presumes that employers have complied with the ADA. Rejecting this argument, the Special Panel responded by saying Liberty Mutual’s argument “rings hollow where a separate suit has been filed against the employer to enforce the employee’s rights under the ADA.” Id. The Workers’ Compensation panel ruled that application of the ADA is NOT to be considered in determining the amount of vocational disability an injured worker has sustained. Id. at 185. The Court states, that it “in this case, [the Court] must look to the usual elements considered in assessing disability.” Id.
Obviously, an employer who accommodates an injured employee under the ADA and returns him or her to work will enjoy the return-to-work caps set forth in the workers’ compensation act.
The ADA must be considered when disclosing employee personnel records containing medical information because the ADA covers medical records associated with an employee’s job. In Johnson v. Nissan North America,146 S.W.3d 600 (Tenn. Ct. App. 2004), Mr. Johnson filed a retaliatory discharge claim following his filing of a workers’ compensation claim. In the discharge claim, he sought to discover certain information regarding terminated employees, including which those who received or filed workers’ compensation claims. Id. at 602-3. Nissan objected on the basis of relevancy. It also argued that turning over the information would constitute a violation of the ADA regarding the employer’s current and former employees. Id. 603-4. Nissan asserted that it had a duty to keep that information confidential and that no exception applied. Id. at 605-6.
The Court of Appeals held that the ADA confidentiality requirement pertains only to “persons with ‘disabilities’ as defined under the ADA and only to employees’ medical files that are maintained pursuant to the ADA.” Id. at 606.
Disability is defined under the ADA as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C.A. § 12102(2)(A). The ADA confidentiality requirements apply to all medical records and tests “covered by the ADA.” However, that does not mean that the ADA confidentiality requirements apply to any and all medical records and tests of employees; it only applies to those which are covered by the ADA. The informal EEOC opinion relied on by Nissan confirms this dichotomy. “The ADA . . . makes a distinction between an employee’s non-medical personnel file and the employee’s medical file. An employer is precluded from placing in an employee’s ‘standard’ personnel file any medical records covered by the ADA. The employee’s separately maintained medical file is subject to the confidentiality requirements of the ADA.” 8 NDLR P 395 (Feb. 12 1996). The EEOC informal opinion further states that the confidentiality provisions apply “assuming the records are being held by an employer in accordance with the ADA.” Id., P 395. As noted by the EEOC, a file maintained in accordance with the ADA is not the same as the so-called “standard” personnel file. Accordingly, to the extent Nissan has maintained files in accordance with the ADA, which by definition limits the files to employees who meet the ADA definition of “disabled,” then Nissan is correct in its assertion that the ADA’s confidentiality provisions concerning those employees’ medical records apply.Id. Further, medical and personnel records not covered by the ADA are still protected under privacy interests, and discovery of said records will require “a compelling showing of relevance.” Id. This case is an illustrative drafting tool for discovery requests in ADA and retaliatory discharge cases.
If you have any questions regarding a work related accident and your benefits under the Tennessee Workers’ Compensation Act, please contact us at the Law Offices of Tony Farmer and John Dreiser. We can be reached at (865) 584-1211 or (800) 806-4611; email at John@farmerdreiser.com; or visit our website at www.farmerdreiser.com.
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