While the employer has an incentive to return an employee back to work both under the workers' compensation statute and the ADA, it is generally understood that ADA compliance and/or action cannot be considered in determining the amount of vocational disability an injured worker has sustained. In Black vs. Liberty Mutual Ins., 4 S.W.3d 182 (Tenn. 1999), the trial court limited an employee's disability rating due to the probability of success in a concurrent ADA action. Id. at 183. Mr. Black suffered an injury to his left leg on September 22, 1995, while working for Roadway Express and after surgery and recovery was left with an eighteen percent (18%) impairment to his leg with a permanent restriction of needing a "cruise control on his truck." Id. Mr. Black made an attempt to return to work, but his restriction was not accommodated and he was not allowed to return to work. Id. at 184.
The trial court found a thirty-five percent (35%) disability, but provided in the final judgment that Mr. Black "is limited by the probability that he will be successful in an Americans with Disabilities lawsuit presently pending" and directed that if Mr. Black was not successful in that claim that he could return and petition for an increase of his workers' compensation award. Id. Both parties obviously appealed the ruling.
The Special Panel first held "[t]here is no legal basis for the trial court to reconsider the award based upon the result in the ADA suit" under both reconsideration statutes. Id.
Next, Liberty Mutual argued the Court should consider the Americans with Disabilities Act (ADA) in assessing the amount of vocational disability an injured worker had sustained under the workers' compensation act. Id. Liberty Mutual also argued that the law presumes that employers have complied with the ADA. Rejecting this argument, the Special Panel responded by saying Liberty Mutual's argument "rings hollow where a separate suit has been filed against the employer to enforce the employee's rights under the ADA." Id. The Workers' Compensation panel ruled that application of the ADA is NOT to be considered in determining the amount of vocational disability an injured worker has sustained. Id. at 185. The Court states, that it "in this case, [the Court] must look to the usual elements considered in assessing disability." Id.
Obviously, an employer who accommodates an injured employee under the ADA and returns him or her to work will enjoy the return-to-work caps set forth in the workers' compensation act.
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