Mitigating Workers’ Compensation Cost with ADA Title I Post-Offer Nerve Conduction Data

A colleague asked me to confirm the forensic value of nerve conduction data (NCD) harvested from a post-offer employment test (POET). He was specifically interested in sharing post-offer test data to apportion treatment and rehab costs in a State workers’ compensation system.

The use of medical information obtained during the conditional-hire phase of employment (as well as the application and incumbency phases) must be managed under a series of laws, the foremost of which is the Americans with Disabilities Act, Title I (ADA Title I). As a federal civil rights statue, the benefits and responsibilities of Title I set precedent for coverage in each of the states and territories. The lawful collection, possession, or use of medical and disability data in state workers’ compensation (WC) systems must be tempered against the anvil of federal regulations and practices.

For purposes of the discussion with my colleague, we assumed that a vendor such as himself designs a post-offer test protocol composed of a wide range of tests including a general nerve conduction study. The vendor’s team, composed of some mix of an occupational therapist, a physical therapist, an ergonomic evaluator, and a physician ensures that the data are retained within the boundaries of the ADA (see: 42 U.S.C. § 12112(3)(B)). Information gathered during the POET as well as from other facets of the hiring process indicates that the individual being tested is qualified for the job. This qualified individual begins work, therefore providing a prima facie demonstration of possession of the necessary physical abilities to perform the physical demands of the essential functions of the position to which he is attached (Gucker v. U.S. Steel).

At some point in the future the now-seasoned qualified individual enters the worker’s compensation system via a referral to a medical professional for other than first aid (see: A Physician, a Wellness Program Manager, an Ergonomist, a Physical Therapist, an Occupational Therapist, and a Functional Capacity Evaluator Walk into a Juice Bar…Part II ). The referral to the medical professional may soon trigger coverage under ADA Title I. Absence and disability managers will look back to this point in time to memorialize any medical diagnosis.

In due course the WC medical process provides a complete patient evaluation including history, physical examination, laboratory tests, and other diagnostic procedures.

NB: If diagnosis of an impairment that substantially limits one or more major life activities does not result from the triggering event then ADA Title I coverage is weakened but not eliminated. By the nature of the third prong of the definition of “disability” under ADA Title I, “regarded as”, coverage virtually always triggers when a qualified individual enters the workers’ compensation system, is referred to a medical professional for other than first aid, or by referral for a test such as a functional capacity evaluation. With the exception of coverage for reasonable accommodation, a trigger by one or more prongs of the definition of disability provides coverage for the otherwise qualified individual.

42 U.S.C. § 12102. Definition of disability

As used in this chapter:

(1)  Disability

The term “disability” means, with respect to an individual

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

(3)  Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

At this point in the process several things are happening:

  1. The workers’ compensation insurer or employer may be considering strategies to apportion or otherwise contain case costs.
  2. The employer or insurer may be looking to the medical doctor for some combination of:
  3. A return-to-work decision with or without “light duty” (i.e., California)
  4. A list of quantified work restrictions
  5. Determination of maximum medical improvement (i.e., Texas)
  6. Input on an accommodation which closes the gap between current ability and the physical or cognitive abilities required to execute the essential functions of the position to which he is attached (under Title I)
  7. If return-to-work with restriction is put forth by the medical professional, the employer will also expect suggestions for reasonable accommodation under Title I (Id. Gucker). In any case, the employer’s absence and disability management team will explore options for reasonable accommodation.

Given the above, use of previously collected nerve conduction data may be of value in circumstance #1. An employer may submit medical information and records obtained in an “Employment Entrance Examination” (the legal term for “Post-Offer”) to state workers’ compensation offices and a “second injury” fund without violating ADA confidentiality requirements. Assuming that the post-injury examination contained valid, comparable data then there may be value to having obtained the original data. If NCD data presents an effective apportionment tool then investment in data collection for comparative use in an impairment setting may be worthy.

Circumstances #2 and #3 are more problematic. While the first instance takes place in an impairment evaluation environment, the other two instances occur in a disability evaluation environment. (Refer to the American Medical Association Guides to the Evaluation of Impairment “AMA Guides Sixth” for a refresher on the difference between impairment and disability.) The practical and cost effective value of NCD in a disability evaluation setting requires more thought.

When medical data are called upon to deem an individual’s return to work ability under ADA Title I, the burden of connecting the compromised muscle, nerve, body structure, or body function to the physical demand of the essential function falls to the disability-trained medical practitioner and supporting work evaluators. This is because we are now in the stage of determining functional work ability with or without reasonable accommodation. To remain in compliance with ADA Title I, the medical practitioner is tied to federal court guidelines for the third stage (after employment begins) of employment wherein an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. There may be activity in the WC arena but the overarching rules of disability evaluation under ADA Title I, rather than a particular state’s workers’ compensation process, takes precedence. And this precedent clearly requires a direct, job-related link, from the data used to reach a medical conclusions that denies employment based on a disability which compromises an individual’s ability to safely and effectively perform the physical or cognitive demands of one or more essential functions of the job to which the individual is attached (Indergard v. Georgia-Pacific Corp., No. 08-35278 (9th Cir. Sept. 28, 2009) “We vacate the judgment and remand the case to the district court to determine whether the PCE was job related and consistent with business necessity“).

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