How Do I Handle Workers’ Compensation With a Pre-Existing Condition?

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Question: We hired a technician and he shortly thereafter he was involved in an auto accident on the job with one of the company’s vans.  He was the “middle man” in the accident – he was rear-ended and he subsequently plowed into the car in front of him.  He immediately went out on workers’ compensation and has had a series of tests/hospitalization and a litany of complaints since that time.  He is scheduling more MRI’s and other tests on a daily basis.  Apparently he had a pre-existing condition of a “lumbar spine disease” (on the neurologist’s report that the company has) that was exacerbated by the accident and which he did not list on his application form.  Even had the accident not occurred. we would have fired him anyway as he was hired to do work that requires standing and climbing much of the time for installation and we know now that he can only do any work from a seated position. What are our options?

Answer: Since workers’ compensation matters are handled under state law, which varies widely, we advise you to speak with local counsel that has expertise specifically in the workers’ compensation area. As for terminating the employee who was involved in the incident, most states have laws that prohibit an employer from terminating someone in retaliation for filing a comp claim.  While it may be the case that this individual is not qualified for the position, because he cannot perform all of the required job functions, you still may risk liability under the anti-retaliation statute if you fire him while the claim is pending.  If you have a written job description, that may help substantiate your view that he is not qualified for the position. (Issues under the Americans With Disabilities Act may also be present in this case if the employee has a “disability” within the meaning of that statute.)  On the other hand, it would also raise the question of why he was hired in the first place – in other words, it becomes a difficult proof issue, with the employer bearing the burden of proving the employee was not qualified.

DISCLAIMER
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with ACCA’s LegalTools Counsel, Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at brooke.duncan@arlaw.com.

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