We understand the terms ‘gimps, cripples and special needs’ are awful discriminatory terms for the folks who require reasonable accommodation to work. However, it is our opinion this is what many Illinois OccHealth doctors/surgeons are effectively doing in constantly setting “permanent restrictions,” effectively barring such individuals from the workplace or their trades for life. We also feel many Illinois labor unions are complicit in the process. We are getting madder and madder to read what has happened with Illinois’ “china doll” construction, medical industry and trucking workers. We are completely sick and tired of hearing doctor after doctor finding Illinois injured workers have permanent restrictions and assure all of you it is our view they are openly or implicitly violating federal law for them to do so. In our view, it is morally and ethically wrong and should be stopped.
You may ask what is a “china doll” construction worker, medical industry or trucking worker? Well, if you aren’t sure, the Illinois WC system wildly awards/rewards high-wage workers who learn the ropes and find ways to appear to be looking for work, but magically can’t find a job. We think “un-finding” work is one of the easiest things anyone can do. What is more problematic are the doctors/surgeons who foster this legal concept at its inception by implementing the magical and counterproductive model of so-called permanent restrictions.
We have repeatedly told our readers permanent restrictions are a “golden diagnosis” in this state. An injured worker and a politically connected lawyer can make hundreds of thousands or even millions with such a medical finding. One purpose of this article is to let doctors, nurses, CRC, attorneys, Arbitrators/Commissioners and everyone else in the Illinois workers’ compensation system it is our strong view this paradigm runs afoul of federal law—the Americans with Disabilities Act. Following the parameters of the ADA, it is politically incorrect and basically shameful to assess an injured worker with permanent restrictions. In our view, it is the equivalent of medically finding the worker to be an incurable gimp or a cripple—once you find they are gimpy, gosh knows no one else will have them, right? We feel it is wholly negative, discriminatory and wildly unproductive to take that approach to someone with a mild to serious work injury.
Right now, as you read this we have:
A. One claim with a physical therapy supervisor who suffered a simple burn to one thumb. A “pain doctor” most of you know found her to be magically but permanently incapable of working for the rest of her life due to non-diagnosable subjective pain—all diagnostic testing is grossly negative. The Arbitrator bought into her silly story and provided total and permanent disability benefits at a projected lifetime cost to an Illinois hospital in the amount of about $2.4 million dollars. Please note all of this is for a burned thumb that healed in about two weeks. Yes, not one but two IME doctors said she is grossly normal and there is nothing wrong with her. Yes, the claim is pending on appeal before the IWCC.
B. Another claim by a construction worker with cubital tunnel syndrome. He has been treating with Dr. A for months and months and months. Dr. A sent him to a “pain doctor” who found equal range of motion in both arms and strength equal. Based on that medical finding, all benefits are cut-off and an emergency petition is expected any day. The settlement demand for a simple elbow surgery is $450,000 based upon a claim this worker is certain to have permanent work restrictions when and if counsel can find a way to get him into an FCE. As we have told all of you, FCE’s are basically hilarious and completely non-scientific as a means to determine if a worker does or doesn’t have “permanent restrictions.” As we have told all of you, lots and lots of claimant attorneys are not sending their claimants to FCE’s themselves—who cares what the doctors might say, let’s get an FCE that will provide permanent restrictions or “gimp-dom.”
C. Another claim by a trucker who is claiming he can’t drive a truck and can’t do basically anything. His next-door neighbor learned of his tale of woe and started to videotape him while he was out and about. She had hours of tape documenting he could literally do hundreds of things, like gardening and riding ATV’s. In our view, there is no question, he can work and might need some reasonable accommodation to do so. Our client paid for computer training to later find out he was running a computer-tuning company. Based upon alleged “permanent restrictions” an Illinois Arbitrator has awarded total and permanent disability benefits. Yes, the matter is pending on appeal.
What is wrong with this picture? Well, the Americans with Disabilities Act of 1990 (ADA) is a law that was enacted by the U.S. Congress in 1990. It was signed into law on July 26, 1990 by then President George H. W. Bush and later amended with changes effective January 1, 2009. The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. In simplest terms, it is against the law to discriminate against folks who might otherwise have “permanent restrictions.” Obviously that simple concept may not apply in what one of our clients aptly calls the “People’s Republic of Illinois.”
Basically, the overall legislative package was to forever end the awful concept of calling or even referring to injured workers and prospective workers as gimps, cripples and physically challenged people. The idea was to stop the concept of workers and prospective workers ever having “permanent restrictions.” Basically, the goal is to have U.S. industry employ folks who need help or accommodation to be employed. We truly feel the concept of lifetime permanent restrictions is totally negative and counterproductive.
In our view, if a claimant has a medical problem the treating doctor should avoid a negative approach and they should indicate what the patient can do without accommodation and what he/she can do with reasonable accommodation. There should be no hint of the negative concept of “restrictions” as we feel it is the equivalent of shamefully calling the patient a gimp, a cripple or physically challenged. We urge physicians and surgeons to focus on the much more positive concept of focusing on the ability for a worker to get back into the workforce with mild, moderate or significant but reasonable accommodation. We further urge Illinois labor unions to follow the same path and stop barring injured workers from your membership.
Following the intent and overall concept of ADA, medical and job discrimination may include, among other things, limiting or classifying a job applicant or employee in an adverse way, denying employment opportunities to people who truly qualify, or not making reasonable accommodations in respect to known physical or mental limitations of disabled employees. It is also discrimination against the arguably disabled to not provide needed accommodations in training. U.S. employers can use medical entrance examinations for applicants, after making the job offer, only if all applicants regardless of permanent restrictions or disability must take it and it is treated as a confidential medical record.
We ask all of our readers, if a construction worker breaks an ankle—can the treater indicate the worker is forever barred from climbing a ladder again and therefore forever precluded from his/her lifetime career in construction? Instead, shouldn’t the doctor say the worker with a broken ankle needs reasonable accommodation to include implementation of a better ladder to return to his/her lifetime work by employing a ladder that is effectively a staircase with a railing on both sides. Such “staircase ladders” are available at all major big-box retailers right now. In our view, most Illinois physicians treating injured workers are much more likely to opt for the easy path of granting their patients “permanent restrictions” and almost never think outside-the-box for ways to reasonably accommodate a return to the same job. Similarly, most Illinois labor unions almost never focus on what a carpenter, iron-worker or electrician needs to get back on their job rolls—they would much sooner have that worker be cast to the side as a gimp or cripple and force union contractors to only hire what they feel are arguably “healthy” workers. The concept sounds good to union bosses but it is against U.S. law!
Maybe we are going to have to advise our clients to file EEOC complaints against a doctor (or three) or a union (or four) to get them to start implementing ADA concepts in their day-to-day practices to get their attention and move into the 21st Century and stop routinely finding injured workers to be gimps, cripples and physically challenged and bar them from the workforce with accommodation. In our view, doctors and labor unions will only stop the negative concept of “permanent restrictions” when they are forced to do so.