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Bungled Post-Offer Medical Examination Leaves School Liable to Job Applicant

By on February 24, 2014 in ADA with 0 Comments

A well-done post-offer medical examination requires great skill and expertise.  These elements were lacking when Adam LaFata applied for a job as Plant Engineer, essentially a custodial position, with the Dearborn Heights School District. One critical fact is that LaFata had been doing this kind of work for 10 years for the Lincoln Park Community Center, maintaining the inside and outside of the building, HVAC, minor plumbing and electrical work, maintaining refrigeration equipment for the ice rink, operating the Zamboni, setting up and tearing down for shows, regularly using ladders and carrying weights more than 40 pounds.

The school’s District Director of Operations interviewed LaFata on August 26, 2010 and August 30, 2010.  He informed LaFata that the job required physical labor such as climbing ladders and lifting more than 55 pounds.  The school gave LaFata a conditional offer provided he passed the school physical.

The post-offer medical examination was performed by Dr. Joel Perlson.  He had concerns about LaFata because he “climbed onto the table very slowly, moving one limb at a time, balancing himself as he went along, slowly turning around and then sitting down on the table.”  Dr. Perlson then stepped out of the room and asked a staff person to get a job description from the school.  Dr. Perlson noted muscle atrophy in the legs, an inability to walk on heels or toes, and noted that LaFata wore leg braces at times and had weakness in his hands.  Dr. Perlson found that LaFata had Charcot Marie Tooth syndrome, a genetic disorder which causes muscle deterioration and gradual loss of strength.

Interestingly, Dr. Perlson did NOT ask any questions about LaFata’s current job duties.  Dr. Perlson gave a note for LaFata to take to his family doctor, who agreed that LaFata had Charcot Marie Tooth syndrome.  However, she felt that LaFata could perform all his job duties and was suitable for the job.

Later, Dr. Perlson received the job description, which was vague and not effort specific, and Dr. Perlson concluded that LaFata could only do ground work and was restricted from climbing ladders and lifting more than 40 pounds.  Dr. Perlson was later deposed in the ensuing ADA law suit and gave conflicting testimony that he thought LaFata could then do the job but would later in the future have problems in the job.

When the school received the recommended restrictions from Dr. Perlson, it decided to withdraw the job offer.  The school was aware of the report from LaFata’s family doctor indicating that he could perform the job duties but they focused on the weight restriction and the ladder work, concluding that they could not hire LaFata.  They did not actually read Dr. Perlson’s full report or speak with Dr. Perlson. The Assistant Superintendent indicated that she did not think she had any right to contradict what Dr. Perlson wrote.

The school never considered any possible reasonable accommodation and never engaged in any interactive dialogue with the applicant.  Essentially, the school argued that it had a right to rely on the opinion of Dr. Perlson.

The federal court rejected this approach. It said,  “First, the School District lacked sufficient information to assess whether Dr. Perlson’s opinion was reasonable.  Second, even if Dr. Perlson’s recommended restrictions were reasonable, neither he nor the School District engaged in any analysis to determine whether a reasonable accommodation would enable Plaintiff to perform the essential functions of the job.”

The school argued that LaFata failed to make a request for reasonable accommodation.  Normally that is required, but the court said not in a case where no formal job had been extended and the applicant was still in a post-offer stage.

The Court was critical of the school for neither insisting on seeing Dr. Perlson’s entire report nor speaking with him, and the court noted that Dr. Perlson was unaware that LaFata had been doing the very same job with another district for years. It said, “Dr. Perlson was not Plaintiff’s treating physician and he based his recommendations on nothing more than a cursory physical examination of Plaintiff.”   The court added, “Moreover, there was evidence available and known to the School District that contradicted Dr. Perlson’s recommendations that it did not consider.  First, Plaintiff was performing the very functions at his current position that Dr. Perlson concluded he could not do.”

Most damaging to the school’s position was this statement: “First it is undisputed fact that neither Dr. Perlson nor the School District engaged in any analysis to determine whether reasonable accommodations were available that could enable Plaintiff to perform the essential functions of the position despite his disability and purported physical restrictions.  Second is the School District’s failure to rebut Plaintiff’s showing that he could perform those functions without or, if necessary, with reasonable accommodations.”

The Court awarded summary judgment to LaFata on his ADA suit against the District.

The case sets down a number of key rules when doing post-offer medical examinations:

  • The employer does the hiring, not the examining physician.
  • Understanding the reasoning of the examining physician is important and requires review of the medical report and perhaps a phone conference with the physician.
  • When disability is the potential reason for restrictions, the employer has the duty to engage in interactive dialogue to discuss possible reasonable accommodations.
  • In cases where it is unclear whether someone can lift 40 pounds as opposed to 50 pounds, a functional capacity evaluation is a useful tool.

This case may be found at LaFata v. Dearborn Heights School District No. 7, 2013 U.S. Dist. LEXIS 173731 (E.D.Mich.S.D. 2013).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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