Help! FMLA, ADA Retirement

bchapin

We have a complicated situation and I'm not sure how to proceed. Here is the situation: We had a County Sheriff's Deputy get injured on the job last February (knee injury). He returned to work on light duty June of 2001 and is still on light duty. He had his last doctors visit today, and they have given him a permanent restriction of no running. Now, being a Sheriff's Deputy, that is a physical requirement to the job. Our work comp carrier has given him a final impairment rating and offered a settlement amount that this person will not accept.

In addition to the above injury, he has injured his other knee also and needs to have some sort of corrective surgery in July. What this employee is asking of us is this: He wants to stay on restricted duty for his work comp injury) until July, have the knee surgery on his other knee, and then use up his sick leave, vacation, and other paid benefits until they run out and then retire. He has already told me that the doctor he is seeing has forecasted with his surgery in July he can expect to be off of work for a month. The amount of time he is asking us for until he retires would be approximately 4 months of paid benefits. We have legal council for our County, but he is new and has not practiced Employment Law at all.

Does anyone know how I should proceed? I'm pretty sure this person will be getting an attorney. When he was injured in February I ran 12 weeks of FMLA concurrent with W/C, however, he will be eligible again in July for his next surgery.

To top all of this off, he had a workmans compensation injury to his shoulder over 10 years ago that he now thinks is giving him arthritis. He has seen a doctor (on his own) that told him his arthritis could be as a result of that injury. Our County does not have a designated workmans comp doctor.

I'm not sure if ADA is going to come into play or who I should contact or how I should proceed! I don't want to do anything that would jeopardize the County's position now or in the future. Please help!

Rockie

Number 1: The county should have an attorney that is versed in employment law; this you should impart to the administrator.

Since this person cannot meet the essential functions of the position, I cannot see how he could qualify under the ADA.

WC is very complicated and it does vary greatly state by state. It seems like he has already been evaluated and offered a settlement. Usually, when a person does not want to accept a WC settlement offer, it goes to the full commission (if this is the way your state operates). They make the final determination as to settlement or distribution of the case.

It seems that this person was injured, was offered a settlement, declined the settlement and needs to proceed to the next level of WC - whatever that is in your state. I can't see where he would qualify for ADA. I also don't see where the 10 year old injury has any merit to this case. If the second injury was on the job, he will probably qualify for another FMLA leave.

It seems like he just wants to stay on the payroll until all his financial options are exhausted and then retire.

I still think you need competent legal counsel on this.

Don D

As you stated in your original question, "We have a complicated situation". I agree with the advice you've been given. Although you will want to do your best to educate him, it's not really your responsibility to give your new attorney an education in labor law issues. I feel it is HIS or HER responsibility, if not prepared to handle, to retain additional counsel to handle the quagmire. Also, your comp carrier will have attorneys at their disposal to help unravel and manipulate the direction of this thing as it unfolds. I'd be wary of swinging any deals with the deputy. He no doubt has already gotten an attorney.

Crout

Have your so-called attorney research the State laws governing Worker's Comp. It'll do him good. Here in PA the Deputy could be terminated, but in other states he would be protected from termination while on Worker's Comp. I'm not sure why you are in such a hurry, but I would not enter into any "deals" until I had all the data. Good luck.