Two Birds, One Stone

One of the trickiest areas for employers to negotiate is the intersection of worker's compensation and disability laws. Frequently, issues under a state worker's compensation act, the Americans with Disabilities Act ("ADA"), state fair employment laws, and family and medical leave laws overlap. Unfortunately, there is no specific guide for how to navigate the laws when they overlap. Employers are left on their own to wade through the morass.One area of overlap that employers can get a leg up on is using a worker's compensation IME to address fitness for duty issues. Under the ADA and most state fair employment compensation laws, employers are entitled to have an employee undergo a fitness for duty examination if the employer has a legitimate concern about the employee's ability to perform the job safely. In a straight fitness for duty situation, employers are only entitled to know if the employee can safely perform the job without restrictions and without risk to other employees.Under state worker's compensation laws, employers are entitled to a broader range of medical information regarding the employee making the worker's compensation claim. One reason is that the employee who makes worker's compensation claim waives the doctor-patient privilege. Hence, employers are entitled to obtain all medical records reasonably related to the injury alleged without the employee's authorization. In addition, employers, in most states, suspend benefits if an employee refuses to attend and IME. This provides a significant incentive for an injured worker to attend the IME.When obtaining an IME in the worker's compensation setting, employers may wish to consider asking questions targeted at the employee's ability to perform the job safely. Often the IME physician will have the benefit of records going back many years that relate to the employee's condition. In addition, employers frequently provide the IME physician with a detailed job description to be reviewed as part of the IME process. This puts the IME physician in an excellent position to judge whether the employee can safely return to employment.Not every IME will lend itself to a fitness for duty evaluation. In some cases worker's compensation and disability laws do not overlap. Sometimes there will be no imminent return to work so a fitness for duty examination would be premature. Nevertheless, in the right case employers can use worker's compensation IME's to their advantage by having the expert address the injured worker's fitness for duty. Not only will it kill two birds with one stone, it will have the added benefit of ensuring that the worker's compensation and fitness for duty opinions are consistent.

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