Workers’ compensation cases sometimes lead to ADA litigation when an injured worker contends that he or she can return to work with serious restrictions, but the employer maintains it has no job available within these restrictions. That was the dynamic in Otto v. City of Victoria, 685 F.3d 755 (8th Cir. 2012).
Leland Otto was injured working in the City’s Public Works Department, first in 1990 and then again in 2006. He returned to work both times, but in January 2007 he experienced numbness in his left leg. His doctor advised him to stop working while undergoing surgery. Following surgery in August 2007, his physician indicated that Otto was totally disabled and would remain so for an indeterminate period of time.
Otto was next referred to another physician in December 2007, and this physician cleared Otto to return to four hours of sedentary work. The city had no positions within those restrictions. A functional capacity evaluation was done next with recommendations that Otto limit himself to frequently carrying weights only up to five pounds, occasionally lifting weights up to 15 pounds, and seldom lifting weights up to 35 pounds. These restrictions were permanent according to Otto’s doctor. Otto continued to receive his workers’ compensation benefits during this time period.
The city took the position that it could not accommodate these restrictions in the Public Works Department. The job duties included patching and repairing curbs and gutters, snow plowing, mowing lawns, and maintenance of streets, parks and buildings. Therefore the city terminated Otto’s employment.
Otto sued under the ADA and alleged that the city failed to make reasonable accommodation. Otto argued that the city should have limited his duties to sedentary activities and should have offered him a part-time job as an ice-hockey rink attendant, or assigned other employees in the Department to assist him in the more heavy functions of his job. The Eighth Circuit rejected these arguments: “The ADA does not require an employer to create a new position or to eliminate or reallocate essential job functions in accommodating an employee with a disability.” It said Otto failed to show that such a position was available.
Otto also argued that the provision of a back brace would have helped him in his this job. The Court noted that there was no medical support for this contention. The Court affirmed the dismissal of plaintiff’s case.
This case illustrates that employers should obtain FCEs to help resolve issues pertaining to return to work. This is the most challenging part of any workers’ compensation lost time case, and it requires skill to deal with requests for accommodation. This case also makes clear that an employer does not have to create a job that does not exist as a reasonable accommodation.