3-27-12; A recent decision from the 7th Circuit confirms competitive placement programs are still A-OK as reasonable accommodation under the ADA, but for how long?

In EEOC v. United Airlines, decided earlier this month, the EEOC claimed a United Airlines policy which dealt with reasonable accommodation for employees with disabilities was in violation of the ADA. United was acting in full compliance with the law as articulated under the 7th Circuit, but the EEOC wanted to test an issue due to its interpretation of a Supreme Court case. This just goes to show us all even well-settled case law can be challenged and changed.

United Airlines had in place a policy which allowed employees who could no longer handle the essential functions of their jobs (even with reasonable accommodation) to attempt a transfer to an equivalent or lower-level vacant position. Under this policy, while employees would not automatically be given transfers, they would be given special preferences including a guaranteed interview, unlimited transfer applications, and priority consideration over other similarly qualified candidates.

United considered this position reasonable based on previously settled case law, namely the case EEOC v Humiston-Keeling, and believed this arrangement could itself be a classified as a reasonable accommodation, even if the transfer process was competitive and a position was not guaranteed.

In EEOC v. United Airlines, the EEOC challenged that holding and argued the competitive placement policy did not constitute a reasonable accommodation. The EEOC argued United should have been required to reassign the disabled employees to a vacant position for which they were qualified. Initially, as the EEOC’s position was in direct conflict with Humiston-Keeling case, the Federal District Court granted United’s motion to dismiss the suit.

The lower court noted Humiston-Keeling was directly on point and it held the ADA did not require actual reassignment, noting other circuits besides the 7th Circuit had relied on the case and set precedent due to it, and that it had never been overruled. The EEOC argued the U.S. Supreme Court case of US Airways, Inc. v. Barnett undercut the ruling in Humiston-Keeling. The EEOC argued based on US Airways, Inc. v. Barnett the ADA requires, as a reasonable accommodation, the actual reassignment of a disabled worker over a more qualified nondisabled candidate if the disabled individual is “at least minimally qualified” for the job and the employer cannot prove undue hardship. As noted above, this conflicts with the competitive reassignment present at UA. While US Airways, Inc. v. Barnett is not directly on point as the policy at issue there was somewhat factually different, there is a solid legal argument present allowing for the challenge at issue here.

On appeal to the 7th Circuit Court of Appeals, the dismissal was affirmed. In its decision, written by Judge Cudahy, the 7th Circuit noted in order to prevail, the EEOC had to convince the court to overrule its prior decision. “The EEOC’s interpretation may in fact be a more supportable interpretation of the ADA, and here we think that this is likely. However, the EEOC must do more to force an abandonment of stare decisis. In order to provide this court with a compelling reason to deviate from precedent, the EEOC must show that Humiston-Keeling is inconsistent with an on-point Supreme Court decision or is otherwise incompatible with a change in statutory law.” The decision’s language makes it clear there may be an en banc rehearing however, on this issue, as Judge Cudahy wrote “the present panel of judges strongly recommends en banc consideration of the present case since the logic of EEOC’s position on the merits, although insufficient to justify departure by this panel from the principles of stare decisis, is persuasive with or without consideration of US Airways, Inc. v. Barnett.”

What does this mean in real world terms? The Federal courts have generally moved to expand the reach of the ADA. They have also generally moved toward greater and greater efforts at accommodation. This decision begs the question of how far employers will have to go in the future to reasonably accommodate disability. At present the competitive placement programs like United Airlines had in place will still be found reasonable, but that may not last for long. If it does not, the alternative the EEOC was arguing for would force employers to provide jobs to disabled individuals, even if there are other more qualified applicants, unless the employer could demonstrate undue hardship. This gets into tricky territory, and it is difficult to understand how a free country could force an employer to place less qualified individuals when there are more qualified applicants waiting in the wings.

This article was researched and written by Arik D. Hetue, J. D. who can be reached at ahetue@keefe-law.com. Please feel free to direct any comments or questions to him, or post them on our award winning blog!

3-27-12; Heralding the New “Dictionary-Driven” Reviewing Courts in Illinois Workers’ Compensation

This is the second major ruling we have seen where it appears our reviewing courts are suddenly reviewing, relying upon and citing dictionaries as their leading source for legislative analysis and interpretation. Attorneys on both sides may now starting grabbing for their lexicons when writing appellate briefs and preparing for orals.

Last month, we saw a blockbuster change to the Illinois workers’ compensation matrix in Will County Forest Preserve District v. IWCC where the Appellate Court looked to Stedman’s Medical Dictionary and Webster’s Third New International Dictionary to rule the word “arm” is defined as “the segment of the upper limb between the shoulder and the elbow; commonly used to mean the whole superior limb.” In reliance on one or both dictionaries and the use by those dictionaries of the word “between” quoted in the previous sentence, for the first time in Illinois WC history, the members of our reviewing court found the “shoulder” is no longer part of the “arm.” As we advised our readers that means the legislation will no longer provide statutory credit to Illinois employers for prior PPD awards to the “arm” in claims involving shoulder injuries.

This month in their ruling in Hollywood Casino-Aurora v. IWCC, the Illinois Appellate Court, Workers’ Compensation Division again looked primarily to dictionaries when considering a Commission decision evaluating the handling of a claim by a WC claims adjuster who did not rapidly approve requested medical care by a claimant.

In this claim, there was an earlier ruling by the IWCC that awarded TTD and PPD benefits as well as ordering the employer or its carrier to pay for reasonable and necessary medical expenses, including the cost of the spinal cord stimulator. After this final decision Petitioner continued under the care of the same doctor who scheduled a battery replacement surgery for Petitioner’s spinal cord stimulator. The claims handler requested a report from this surgeon explaining the medical necessity for the procedure. On June 18, 2007, the physician sent the claims handler a report setting forth the medical necessity for the procedure and requested authorization for the surgery which had been rescheduled for July 9, 2007. For reasons not clearly outlined in the record, no immediate response was received. It appears the battery in the spinal cord stimulator may have run out in the interim. On August 15, 2007 the claims handler authorized the battery replacement surgery and surgery took place August 27, 2007.

On August 2, 2007, Petitioner’s counsel filed a penalty petition under section 19(k) of the Act asking fees and penalties be assessed against the employer and/or its carrier for its failure to immediately authorize the battery replacement procedure. During hearing, the claim handler admitted she was in possession of what was needed to authorize the battery replacement procedure.

The Illinois Workers’ Compensation Commission issued a unanimous decision finding the employer or its carrier/TPA unreasonably delayed authorization for the recommended surgery without cause. They awarded a hefty $40,750.in penalties or half of the cost of the projected surgery under section 19(k). They denied the claim for attorney’s fees and didn’t answer the request for penalties under Section 19(l) of our WC Act. The employer and/or insurance carrier/TPA appealed the IWCC ruling to the Circuit Court who reversed the IWCC decision awarding 19(k) penalties.

The basic issue before the IWCC and reviewing courts is whether Illinois WC adjusters are subject to “bad faith” type awards when they don’t quickly move to authorize requested medical care. Please note when McMahan v. Industrial Commission was issued by our Illinois Supreme Court in year 2000 and for the first time allowed penalties and fees on unpaid medical bills, the very aggressive Illinois claimant bar went to the next logical step which was demanding immediate and on-demand authorization for medical care under the hammer of similar bad-faith-type penalties and fees. Many legal scholars still respectfully question the McMahan ruling, as the legislation clearly indicates medical bills aren’t the payment of benefits and therefore shouldn’t be the subject of penalty petitions. We feel the McMahan penalties-on-unpaid-medical-bills concept is so engrained in Illinois WC law, no one even knew to raise the old disputes about adhering to the actual legislation—we note the academic debate was not even mentioned in this new appellate ruling.

Either way, in summary, a 3-2 divided Appellate Court majority again looked to the Webster’s Third New International Dictionary to note “[p]ayment is defined as: ‘[t]he act of paying or giving compensation.’” The majority ruling goes on to note “[t]he definition does not include the giving of authorization for a service.” We feel that is precisely how the legislation is drafted and therefore clearly follows the legislative scheme.

The dual dissents went back and forth, chastising the majority and claiming they took a “narrow view” of the IL WC Act. We respond to applaud the majority ruling, as they closely adhered to what we call the “English language” version of the IL WC Act. We hope this heralds a new appellate era of closely following the dictionary whenever statutory analysis is required. Over the years, we assert numerous appellate rulings at every level might be different if that were to occur.

We caution all Illinois WC adjusters to note we have again dodged a major bullet in this razor-thin victory. If the august appellate majority had gone the other way, IL WC claims handling may have been dramatically changed. We know the claims adjuster who handled this claim—we assure you she is a decent and usually diligent claims handler. That said, we want to be sure everyone on the risk/claims side of this business knows an important message to take away from this ruling is to understand you don’t want to keep doing what one of our partners jokingly calls “poking the bear.” By that we mean, if necessary, related and undisputed medical care is not being timely approved by Illinois claims handlers and there is no discernible basis for delay, at some point either our legislature or the IL WC Commission or both are going to take action to penalize our side of the matrix and stop that from happening. Let’s wise up folks and not cause that to occur.

We appreciate your thoughts and comments. Michael J. Danielewicz, J.D. who is also an Adjunct Professor of Law at The John Marshall Law School researched and wrote this article and would be happy to answer questions or send you the website of the Appellate Court ruling. Mike can be reached via email at mdanielewicz@keefe-law.com.

3-20-12; THIS FRIDAY!!! RRRRRrrrrRRRRRRR – Go-Kart Racing with KC&A!! on March 23, 2012

We have scheduled a family-friendly night of fun and frolic.

We are going go-kart racing at Chicago Indoor Raceway in Buffalo Grove.

The address for this night of fun is:

• 301 Hastings Drive
• Buffalo Grove, Illinois
• 847-941-9400

We will be arriving at 5pm and you are welcome to stay as long as you like. We will have light snack and refreshments (adult and kid) upstairs above the action.

Please note-you are not required to race the go-karts but if you chose to, please do not consume any adult beverages until after your racing is done.

For more information about this fun event, please check out their website at http://www.chicagoindoorracing.com/

If you have interest or questions, email Natalie Borg at nborg@keefe-law.com.

We hope to see you there on the 23rd!