Employer That Relied on Work Restrictions Imposed By Its Own Physician Loses Summary Judgment on Employee’s Regarded-as- Disabled Wrongful Discharge Claim

Last week, the Ohio Court of Appeals reversed an employer’s summary judgment on a claim that it fired an injured employee whom it regarded as disabled.  Carnahan v. Morton Bldgs. Inc., 2015-Ohio-3528.  The Court applied the 2008 ADA Amendments Act in construing Ohio law – in that it only required proof that the employer regarded the employee as impaired and did require that the employer regarded the employee as substantially limited by that impairment.  The employer admitted that it refused to reinstate the plaintiff after he was released to return to work without restrictions by his own physician and that it instead relied on its own physician’s speculation of work restrictions that would be prudent in light of possible impairments the plaintiff could suffer from his injury.  In other words, the employer required the plaintiff to submit to a fitness evaluation by its own specialist, who found nothing abnormal about the plaintiff’s mental or physical condition, but felt that certain work restrictions would be prudent.  The employer’s practice was to only reinstate workers released without any restrictions for non-work related injuries.  Therefore, it replaced the plaintiff as foreman and terminated his employment after receiving its physician’s recommended restrictions – thus regarding the plaintiff as disabled.

According to the Court’s opinion, the plaintiff suffered a traumatic brain injury and was off work for a period of months.  His family physician released him to return to work on a transitional part-time schedule for two weeks, following by a complete release to return to work without any restrictions.  The employer’s practice was never to reinstate to an employee with any work restrictions unless he was injured in a work-related accident (i.e., covered by workers compensation).  When the plaintiff spoke with co-workers, a few employees observed that he seemed to have balance issues, a changed demeanor and trouble with his memory in adding numbers.  Therefore, the employer requested that he be examined by a neurosurgeon of its choosing before he could return to work.  That neurologist did not evaluate his physical abilities, but submitted the plaintiff to a CT scan, an EEG and neurological examination, which revealed no abnormalities physically or mentally.  Nonetheless, the neurologist recommended a number of work restrictions, none of which the employer was willing to consider.  The employer claimed to have terminated him out of safety concerns and his inability to perform his job.  It did not consider assigning him to a light duty job, which was available.

The plaintiff denied that his brain injury substantially limited any of his major life activities after his five-month recovery.  In fact, he had obtained another job as a forklift driver and had passed a physical fitness examination by his new employer.  Therefore, he could not proceed on a failure-of-accommodation or other disability discrimination theory.  The court also refused to consider that he was regarded as disabled simply because the employer requested its own fitness-for-duty evaluation by a neurosurgeon.

The court had little difficulty finding that the employer regarded the plaintiff as disabled and that its neurosurgeon’s report could not protect it from a disability discrimination claim:

Based upon the type of injury suffered by [the plaintiff], [the employer’s neurosurgeon] was concerned about possible neurological impairments and listed several limits on Carnahan’s abilities that could occur as a result of the neurological impairment. These limits were based upon possible issues that [the plaintiff] might have as there were no indications of issues at that time and he actually passed all of the tests he was given. (italics added for emphasis).

In particular, the neurosurgeon’s report to the employer provided as follows:

Currently, the patient is neurologically stable. * * * The patient has no memory problems. * * * The patient indicated that he is participating in day-to-day activities without any significant difficulties.

OPINION: * * * Currently, the patient’s stamina, flexibility, strength, coordination, equilibrium, dexterity, vision, hearing, mobility, and effort are fairly within normal range. * * * Based on my evaluation on January 24, 2012, [the patient’s] cognitive ability, organization, and recall skills are within normal limits. I do not see any cognitive deficiency currently.

Nonetheless, he recommended the following restrictions on the plaintiff’s return to work:

a. To avoid working above floor level.

b. To avoid any head injuries.

c. To avoid any falls.

d. Avoid working at heights and climbing ladders.

e. To avoid irregular and extended work hours and overtime.

f. To avoid sleep deprivation.

g. To avoid exposure to extreme temperatures for more than 50% of his work time.

h. To avoid climbing ladders to hang trusses and install roofing.

There was also little dispute that the plaintiff suffered an adverse action from the employer’s incorrect perception about his brain injury.  He was demoted and terminated because of the work restrictions recommended by its own neurosurgeon.

Finally, the plaintiff could prove that he was qualified and could physically and mentally perform his job.  He had been released to return to work without any work restrictions by his own physician.  In addition, he had obtained and was performing similar employment for another company after passing a fitness for duty examination.

In concurring, one judge noted that the neurosurgeon’s report could not create a material issue of fact about the plaintiff having a substantial limiting impairment because it was based on possible or future concerns instead of his actual and current physical and mental state.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Courtesy Faculty Appointment Does Not Confer Sovereign Immunity

This morning, a unanimous Ohio Supreme Court rejected the sovereign immunity defense raised by a physician who held a courtesy clinical appointment by a state medical college and who permitted a medical student to observe the allegedly negligent medical procedure because the state college exercised no control over the physician. Engel v. Univ. of Toledo College of Medicine, Slip Opinion No. 2011-Ohio-3375. The Court focused on the volunteer nature of the clinical appointment, lack of formal employment relationship and fact that the physician was in private practice and had privileges only in a private hospital. Therefore, the plaintiff could not bring a medical malpractice claim against the medical college and was limited to the physician’s private malpractice insurance.

The original malpractice claim was brought in common pleas court against the physician arising out of two allegedly negligent surgeries performed by the physician. The physician held a courtesy clinical faculty appointment at the nearby state medical college and was being observed during the surgeries by a third-year medical student on a one-month rotation. In the malpractice lawsuit, the physician raised the defense of sovereign immunity under Ohio Revised Code § 9.86 because he had been acting as a clinical faculty instructor at the time of the challenged surgeries. While the trial court stayed the common pleas action, the plaintiff then filed a malpractice action in the Court of Claims against the medical college and also sought a declaration of the physician’s immunity. The Court of Claim confirmed the physician’s immunity and this was affirmed by the Franklin County Court of Appeals. The Supreme Court reversed.

Pursuant to O.R.C. § 9.86:

Except for civil actions that arise out of the operation of a motor vehicle and civil actions in which the state is the plaintiff, no officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer’s or employee’s actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.

A court’s analysis is generally focused on whether the defendant is an employee or officer and whether he or she was acting outside the scope of employment, etc. Whether an individual is a state employee is determined by reference to O.R.C. § 109.36, subsection (a) of which provides that a defendant is covered if he is “[a] person who, at the time a cause of action against the person arises, is serving in an elected or appointed office or position with the state or is employed by the state.”

Clearly, the physician was not elected or appointed to an office. However, prior decisions had not examined the employment status of physicians in any detail. The Court declined to announce a specific test for physicians, but stated that it would consider the following factors:
• The contractual relationship between the state and the individual;
• State control over the individual;
• Whether he received any tangible benefits from his courtesy appointment; and
• Whether the individual was paid by the state or affiliated entity.

In this case, the courtesy faculty appointment of the physician was unpaid, and there was no evidence that he had been hired or credentialed by the medical college. The medical college had no control over the private medical practice of the physician. While the courtesy faculty appointment subjected the physician to unspecified rules and policies of the college, he was not permitted to use his academic title in connection with any published research without the explicit and discretionary authority of the college department chair. The physician did not receive any office space or assigned staff or equipment, research projects, clinical privileges or lecturing responsibilities. Therefore, there were insufficient indications of an employment relationship with the state which was necessary to justify immunity.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.