Posts Tagged ‘case law’

Update On Medical Marijuana

Friday, March 3rd, 2017

Yesterday, while attending WCRI’s Annual Conference in Boston, we wrote about the National Academy of Sciences (NAS) new research results concerning the effectiveness of  medical marijuana (cannabis) in the treatment of chronic pain. The NAS research concluded there is “conclusive support” that cannabis is effective with respect to chronic pain. A number of states are allowing cannabis to be employed in this regard.

However, marijuana is federally illegal in any usage, medical or otherwise.

We learn today from the Boston Globe that a bill was introduced in the US House of Representatives by Virginia Representative Thomas Garrett yesterday to remedy this situation. From the Globe’s story:

A freshman Republican representative from Virginia introduced legislation this week that would end the federal prohibition on marijuana use and allow states to fully set their own course on marijuana policy.

The bill seeks to remove marijuana from the federal Controlled Substances Act and resolve the existing conflict between federal and state laws over medical or recreational use of the drug. It would not legalize the sale and use of marijuana in all 50 states — it would simply allow states to make their own decisions on marijuana policy without the threat of federal interference.

‘‘Virginia is more than capable of handling its own marijuana policy, as are states such as Colorado or California,’’ Representative Thomas Garrett said in a statement. Neither recreational or medical uses of marijuana are allowed in Virginia.

Senator Bernie Sanders introduced a similar bill last year, but no one would co-sponsor it, and it never even got a hearing. Garrett, however, has four co-sponsors already.

We will continue to watch this.

Exclusive Remedy wins: Safe in Florida … for now. Also upheld in DBA suit

Thursday, June 25th, 2015

The big workers comp news of the week: A three-judge panel of the 3rd District Court of Appeal overturned a ruling that challenged the concept exclusive remedy: Appeals court tosses out key workers-comp ruling. Refresher: In the 2014 Florida case often referred to as the Padgett ruling, Miami-Dade Circuit Judge Jorge Cueto ruled ruled workers compensation unconstitutional, commenting that state legislative reforms had weakened the law to a point where the remedy for employees was no longer sufficient to warrant the loss of their right to sue employers.

But before exclusive remedy proponents break out the champagne to celebrate the victory, in Padgett Out, Now What? Dave DePaolo dissects the ruling, explaining why any celebrations may be premature.

“But the 3rd DCA set aside Judge Cueto’s ruling on procedural grounds, not addressing any of the merits. This leaves the question open.

The organizations pushing the constitutional challenge have vowed to continue the fight.

And those defending the system realize that the attacks will continue, particularly since there are still two cases pending in the Florida Supreme Court attacking smaller provisions of the law on similar grounds (Westphal v. City of St. Petersburg is about the statutory limits on the payment of temporary total disability benefits, and Castellanos v. Next Door Co. involves a challenge to the cap on claimant attorney fees).”

For the legal nerds in the crowd, a must-see analysis on the case can be found at Judge David Langham’s post It is Padgett Time, Third DCA Reverses. As Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings, Langham wields some expertise on the matter — his post is worth reading.

Exclusive remedy upheld in Defense Base Act ruling

In other recent exclusive remedy legal news, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reaffirmed that the Defense Base Act (DBA) is the exclusive remedy for contract workers. See: The D.C. Circuit’s Message to Injured Government Contractor Employees: ‘There’s an Exclusive Remedy For That’ in National Law Review.

“Despite the Act’s broad exclusivity provision, in Brink v. Continental Insur. Co., an estimated class of 10,000 contractor employees who were injured in Iraq and Afghanistan brought a purported class-action lawsuit for $2 billion against dozens of government contractors, alleging that the contractors conspired with their respective insurance carriers to deny the workers DBA benefits. But a three-judge panel of the D.C. Circuit unanimously rejected plaintiffs-appellants’ claims and, in a 17-page opinion, made five key findings that will help government contractors defend similar lawsuits in the future.”

Related

3rd DCA Reverses Summary Judgment in FWA Constitutional Challenge to Exclusive Remedy

Brink v. Continental Insurance Company, Court of Appeals

Appeals Court Tosses Out Key Workers Comp Ruling

D.C. Circuit tosses suit brought by injured military contractors

Cavalcade of Risk and other news items of note

Wednesday, August 22nd, 2012

Emily Holbrook does a stellar job hosting Cavalcade of Risk #164 at Risk Management Monitor. A sampling of recent posts on varied topics may tell you why Risk Management Monitor is on our regular reading list and one of our favorite blogs: The Formal Demands of a Somali Pirate, The 3 Most Curious Claims, and Insurance Claims from Colorado Wildfires at $450 Million and Growing.
Industry pulse – At propertycasualty360, Stephen Klingel offers an explanation of conflicting signals in the latest NCCI Workers Comp State of the Line report. He discusses why the market remains “worrisome” despite a number of positive developments. On the plus side, we see that claims frequency is down and written premium is up, but the industry’s reserves are deteriorating and the residual market is growing – indicators that bear watching. He cites claim frequency, the underwriting cycle. uncertainties related to healthcare and financial services reforms, and efforts to expand alternatives to Workers’ Comp as additional areas of concern that NCCI is monitoring.
Paid sick leave & workers comp study – A recent NIOSH-related study revealed that workers with paid sick leave were 28% less likely to report an occupational injury that needed medical care than workers without paid sick leave. Also, workers in high risk jobs appeared to benefit more. The survey encompassed 38,000 workers and was based on data collected by the National Health Interview Surveys from 2005 through 2008. While survey authors caution that the survey does not establish a a cause-and-effect relationship between paid sick leave and the incidence of workplace injuries, it does raise the issue that workers who do not have paid sick leave may feel economically pressured to work while sick, exposing them to greater likelihood of injury.
Right to safe workplaces – Kevin Jones raises the question of whether safe work is a basic or fundamental human right on the Australian SafetyAtWorkBlog. He raises this question both specifically for Australia, but also from a global perspective.
Healthcare & politics – Wondering about the healthcare implications of Romney’s vice presidential pick? Joe Paduda is on the case: At Managed Care Matters, he posts about Paul Ryan’s evolving stance on deficits and Medicare spending.
Healthcare workers and mass trauma – Dr. Camilla Sasson was on duty in the Emergency Department of the University of Colorado Hospital on the night of the Aurora shootings. She talks about her experiences that night on the RWJF Human Capital Blog, offering insight into the extreme stress that healthcare workers face during and after a mass casualty event – as well as how patients help the doctors heal.
Other news of note

Medicare Set-Aside as Marital Asset?

Monday, March 12th, 2012

Here is a truly bizarre case from Illinois that will likely send our many attorney readers scrambling for their statute books.
Christopher Washkowiak worked as a pipefitter. He suffered a serious work-related injury in 2009. The following year, his marriage broke up (dissolved as of August) and he settled his workers comp case in December. The settlement totalled $365K, plus a Medicare Set Aside (MSA) for an additional $70K. Washkowiak’s wife, Rosana, was entitled to 17.5% of the marital assets. She claimed not just 17.5% of the $365K lump sum settlement, but the same percentage of the MSA.
The initial trial court and the Illinois Appellate Court, 3rd District, ruled that Rosana was entitled to the money. Here is the Appeals Court ruling:

Unless there is something about an MSA that removes the MSA funds from the definition of “net proceeds,” the funds fall squarely within the dissolution decrees’s definition of “net proceeds” (paragraph 10).

The court goes on to say that “there is no question that the money is his [Christopher”s] and further that “it is not Medicare’s or [the employer’s] money” (paragraph 15).
Finally, the ruling goes on to state that “if he incurs no such [medical] bills, he gets the money back” (paragraph 17).
It is worth noting that Rosana apparently does not have to wait to see if the funds are needed for future medical expenses. The court has foreshortened this process to the point where she gets the money now, as part of the divorce settlement.
Attention All Attorneys!
There are a number of parties who will be alarmed by this ruling:
The Federal Government: Medicare will surely object to the expenditure of MSA funds for non-medical purposes, diluting what is available for future expenses (and thereby defeating the purpose of the MSA).
Insurers and self-insureds: will be shocked to see funds set aside for future medical expenses being used for other purposes; this will inevitably lead to further inflation of future MSAs. (Indeed, Medicare might hesitate to sign off on any settlement prior to determining the relative strength of the marriage – and we all know how much stress disability puts on a marriage…Yikes!)
What if this divorce entailed the conventional 50/50 division of assets? Half the money in the MSA could be spent before the account even got started.
I have never heard MSAs referred to as claimant assets. In my limited understanding, the amount awarded to the claimant is separate and distinct from the MSA. Funds in an MSA can be used only to pay medical bills. In addition, I have never heard of a situation where unspent MSA funds reverted directly to claimants; they would likely revert to the insurer or the self-insured, whoever set aside the money. (If any of our attorney readers have any knowledge to the contrary, please let us know!)
MSAs carry a lot of baggage already: the MSA process slows down settlements while stakeholders wait for federal bureaucrats to check the numbers; MSAs seriously inflate the current cost of settlements, complicating an already complicated process. If this ruling in Illinois is upheld, if MSAs are truly marital assets, then, as the saying goes, “we ain’t seen nothing yet.”

New Jersey Courts: Zero Tolerance, Zero Compassion

Friday, February 24th, 2012

You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson’s disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness “hush, hush.” Martin complied, and never mentioned his illness to the company’s HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties – unrelated to work – he returned to work as soon as he was able.
In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin’s mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.
Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.
A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a “prescribed” medication? Well, that’s where a problem arises.

The word “prescription” comes from the Latin “praescriptus” compounded from “prae”, before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.

It appears that a “verbal prescription” is an oxymoron: if it isn’t in writing, it isn’t a prescription. [NOTE: the court ruling did not even address this issue.]
The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company’s zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin’s Parkinson’s disease until this litigation commenced.Thus Martin’s termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.
The court wrote:

Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin “failed” the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company’s lack of compassion in these circumstances.

Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: “nor should such a duty exist with respect to existing employees.” The court may not see any difference between an applicant and a loyal employee, but I do.
No Room for Compassion
The court “is not offended by a private company’s lack of compassion.” Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:

Quick Chek is proud to be one of NJ’s Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.

I wonder what Erik Martin thinks of the company’s “core values.” When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor’s orders and his company’s procedures. Martin’s loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.

New Hampshire: Stressed-out Owner on his Own

Tuesday, December 20th, 2011

Raymond Letellier co-founded a steel fabrication company in New Hampshire called Steelelements. The company suffered a major fire in March of 2007. They rebuilt, although the cost of the rebuilding, managed by Letellier’s partner, exceeded the budget. In October 2009 the company went out of business. Throughout the long, downward spiral, Letellier suffered from stress, hypertension and depression. Soon after the company’s failure, he filed for personal and business bankruptcy. At the same time, he applied for workers comp benefits.
Letellier’s claim was initially denied, then accepted for the medical costs only, and then denied again. Eventually the claim reached the New Hampshire Supreme Court, where a deeply divided court (3 to 2) ruled against Letellier. The court reasoned that the failure of the company was akin to a personnel action: workers comp does not cover such employer actions as discipline, termination and lay off. In closing the business, Letellier subjected himself – and everyone else – to a lay off. – a non-compensable personnel action.
Work-Related Stress?
Two dissenting judges pointed out that the majority focused almost exclusively on the ultimate failure of the company, the lay off itself. But the extraordinary and relentless stressors in Letellier’s life began with the fire and continued throughout the struggle to keep the over-leveraged company in business. This is not the stress of a single event, but the cumulation of stress over months and years. The dissenters noted that Letellier’s commute to the factory was 100 miles, so he often slept in his office, where ever-pending doom haunted his every waking moment and his troubled dreams. They opined that his multiple health issues were predominantly caused by work.
Letellier, once the proud owner of a successful business, finds himself in the same situation as laid off workers across America. He is on his own and out of luck.
We will set aside for the moment what may be Letellier’s biggest mistake: instead of trying to make things that people can actually use, he should have pursued a career in finance, where he could have sold worthless mortgages, watched his company flounder, and then be rescued by tax-payer bailout, all the while preserving a superbly inflated salary. That’s an All-American story of a different sort, albeit fodder for another day.

Overdosing on Drugs: Compensable in Tennessee, Denied in Ohio

Monday, December 12th, 2011

Today we examine two court cases that trouble the dreams of claims adjusters: workers with severe injuries whose use of pain medication leads to their deaths. In one case, the accidental overdose is deemed compensable; in the other, the claim is denied. The devil, of course, is in the details.
Compensable Death In Tennessee
In November 2008, Charles Kilburn was severely injured in an auto accident while in the course and scope of employment. Fractures to his back and neck resulted in permanent total disability. Following surgeries, he still experienced severe pain. A pain specialist prescribed oxycodone. Fourteen months after the accident, Kilburn died of an accidental overdose. His widow filed for death benefits.
Kilburn’s employer believed that the death was the result of negligence, which would break the chain of causality with the original injury. Kilburn had ignored his doctor’s cautions to limit his intake of oxycontin to a specific maximum dose. The Supreme Court of Tennessee determined that the severe pain experienced by Kilburn might result in diminished faculties, which in turn might lead to taking more medicine than was prescribed. In their view, the chain of causality remained intact at Kilburn’s death and thus his widow was entitled to benefits.
Denial in Ohio
In Parker v Honda of America, the initial circumstances are similar, but the apparent “diminished faculties” lead to a very different result. John Parker suffered a severe back injury at work in 1988. He was prescribed OxyContin in March 1999. He eventually became addicted to the drug, along with cocaine, percocet and heroin. In March of 2006 he was found dead, a syringe in his arm, a spoon with a lethal dose of melted OxyContin at his side. In this case, the Ohio Court of Appeals found that his melting and injecting the drug, combined with his documented abuse of street drugs, broke the chain of causation linking the death to the workplace injury.
The court rejected his widow’s argument that the drug abuse was the result of a “severe disturbance of mind” and thus unintentional. It’s worth noting that if Parker had deliberately overdosed as an explicit act of suicide, the death may have been deemed compensable. But because the overdose was an acccident, workers comp benefits were denied.
The Big (and Not-So-Pretty) Picture
Pain is a constant factor in work-related injuries. The control of pain is a complex and widely misunderstood aspect of claims management. Because we live in a culture that relies heavily on powerful medications to control pain, and because the prescribing of these powerful drugs is neither well managed nor well monitored, we will see more and more cases of drug overdoses wending their way through the workers comp system. Some cases will be compensable, others will not. One thing is certain: the challenges of managing these situations will continue to haunt key players in the comp system: the doctors who prescribe the drugs, the adjusters who authorize bill payment, the families who suffer the consequences of loved ones in severe discomfort, and above all, the injured workers, whose every waking moment is compromised and consumed by a pain that just won’t go away.

Health Wonkery, Networks, TBI, Pole Dancers & other news of notes

Thursday, December 8th, 2011

After a Thanksgiving hiatus, Health Wonk Review is back with your biweekly view of what the healthcare policy wonk’s have been blogging about. Brad Wright hosts Health Wonk Review: Holiday Shopping Guide at Wright on Health.
Workers Comp Networks – At Managed Care Matters, Joe Paduda has been front and center covering the matter of Aetna’s exit from workers comp and his post today, Aetna part 2. Also related, his post about Where work comp networks are headed.
UBB Report followup – In followup to yesterday’s post, here is a link to the MSHA Upper Big Branch Investigation Report – it’s a detailed account, including transcripts of interviews.
Bloodborne Pathogens – According to the CDC, about 385,000 sharps-related injuries occur annually among health care workers in hospitals, and the average risk of bloodborne infection following one of these injuries is approximately 1.8%. The NIOSH Science Blog posts about needlestick punctures and bloodborne pathogens, highlighting the film Puncture which is about the personal injury case of Vinessa Shaw, a nurse who contracts AIDS after an accidental stick. The post calls attention to the NIOSH injury prevention initiative, The Stop Sticks Campaign. which is aimed at clinical and nonclinical health care workers and health care administrators in hospitals, doctor’s offices, nursing homes, and home health care agencies.
Pole Dancing: – A Georgia Court recently ruled that Pole Dancers are not independent contractors. “The Judge found the club exercised control over the dancers because the amounts charged by the dancers for certain types of dances were set by the club. The club also established what amounts had to be paid by the dancers to the DJ and to other employees of the club each day at the conclusion of their shift. The club could also fine or fire the dancer for not coming to work or being late. The Judge also noted that every other FLSA case brought by exotic dancers from Alaska to Florida had concluded they were ’employees’, and not ‘independent contractors’.” Note: This is not the first pole dancing issue we’ve covered. My colleague posted about another claim with a pole dancing angle last May. This should lead to some interesting search results in our logs – not to mention some disappointed searchers.
Brain Trauma – the New York Times has a 3-part series on 28-year old professional hockey player Derek Boogard’s death due to repeated head trauma, chronic pain and a deadly drug addiction. Read part 1 A Boy learns to Brawl, Part 2 Blood on the Ice and Part 3 A Brain ‘Going Bad’. There is also a related video: An Enforcer’s Story. For a good resource on preventing, treating and living with traumatic brain injury, we point you to Brainline.org.
Related – In doing our rounds, we note that Dave DePaolo has an excellent post on Professional Sports and the Relevancy of Comp.
In the I-guess-it-doesn’t-go-without-saying department – Slightly off track here, but Bob Wilson has a rather unusual warning that we are passing along as a public service: Beware the Door to Door Breast Examiner.
News Briefs

  • Workplace Health Missing From Public Health Rankings
  • NICB Reports 7% Uptick in Q3 Suspicious Claims – workers comp was up 12%
  • Early Impact of the 2007 Reforms in New York – from WCRI
  • Preventing Worker Deaths and Injuries from Contacting Overhead Power Lines with Metal Ladders – home holiday decorators also take note!
  • 10 eye injury pitfalls to watch for at work
  • Irregular Night-Shift Work Associated With Higher Diabetes Risk
  • Limit Your Employer Liability for Holiday Parties
  • In Harm’s Way: A Non-Compensable Fall

    Monday, November 28th, 2011

    Geoffrey Hampton worked as a laborer for Intech Contracting LLC. Hampton, an insulin dependent diabetic, was working with a crew on September 9, 2009, repairing a bridge in Muhlenberg KY. Hampton suddenly uttered a profanity and walked to the edge of the bridge. He climbed over a 4 foot barrier and fell 60 feet, suffering permanent injuries.
    Hampton has no memory of the incident. His co-workers testified that he had been complaining about not feeling well; that he had taken a snack of sweets to adjust his blood sugar; and that the fall did not appear to be an act of suicide.
    Hampton was certainly “in the course and scope” of employment, but the question for the courts was whether his injuries arose “out of” employment. The Appeals Court found that his idiopathic condition – diabetes – was the likely cause of his actions and that his extensive injuries did not arise “out of” employment. As a result, Hampton was unable to collect workers comp.
    It’s important to note that Hampton’s employer took specific steps on that fateful evening to remove Hampton from harm’s way:
    – When he requested time for a break to adjust his blood sugar, they immediately consented.
    [NOTE: Hampton had inadvertently left his insulin at the hotel room.]
    – When Hampton complained about not feeling well toward the end of the shift, he was told to sit in the truck. He left the truck and walked toward the bridge rail on his own.
    Not All Risk is Work-Related
    The court noted that Hampton’s diabetes was not under control, which certainly raises the issue as to whether it was safe for him to perform this kind of work; if the employer had awareness of the medical condition, they should have required a note from Hampton’s doctor that it was safe for him to perform the essential job duties.
    The court implies that there were circumstances where an injury might have been compensable: for example, if Hampton had been working near the edge of the bridge and had experienced a black out due to hypoglycemia, he would likely have been eligible for comp benefits. However, if it could be proven that the black out was the result of his own negligence in attending to his illness, perhaps the claim would still have been denied.
    But Hampton was sitting in a truck, safe and secure, with no unusual risks or exposures. He was clearly out of harm’s way. There is no way of knowing why he did what he did, but it is clear that work had nothing to do with it. When he went over the rail of the Muhlenberg bridge, he gave no thought to the workers comp safety net that usually covers his every working moment. The findings of the court are both harsh and fair. For Geoffrey Hampton, the fateful date of 9/09/09 will resonate every moment of his diminished life.

    Older Workers: How Old is Too Old?

    Tuesday, October 11th, 2011

    For 36 years Rodolfo Meza worked for Aerol Corporation in Rancho Diminguez CA as a metal worker making cast iron and aluminum molds. He was about 48 when he began working; he was about 84 when he was terminated while on medical leave for a knee operation. Rodolfo sued, claiming age discrimination, raising the question: how old is too old to work?
    In the course of his trial and subsequent appeal, Rodolfo noted that his immediate supervisor commented frequently about his being “too old to work.” Despite operations for a hernia and a knee replacement (the court rulings do not indicate whether these were covered by workers comp), Rodolfo had every intention of continuing to work. When his normal job became a bit difficult for him to perform, he requested a transfer to the engineering department, where he often had performed work. His supervisor responded “no, Rudy I can’t [transfer you]. You are too old to move to engineering.”
    When he was terminated in 2009, his 24 year old son (conceived when Rodolfo was 60!) noted that he became sad and depressed.
    Age Has Its Benefits
    A jury awarded Rodolfo $100,000 for future economic loss: based upon his annual earnings, that’s a little over three additional years of employment, bringing Rodolfo to age 87. In addition, they awarded $300,000 for past non-economic damages (presumably, the ongoing agist comments of his supervisor). That’s a lot of money for an individual nearly 20 years past the conventional retirement age.
    Aerol appealed and lost. The CA Court of Appeals found a pattern of discrimination, along with a legal technicality that prevented Aerol from contesting the award for the future earnings: Aerol failed to raise the issue in a timely manner during the initial the trial.
    Expensive Lessons in Human Resource Management
    Is the court saying that employers must continue to employ workers into their 80s, with no recourse available to force retirement? Can workers work as long as they like?
    Not really.
    Aerol – through the actions of Rodolfo’s supervisor – made a number of critical mistakes in managing this situation. The supervisor made repeated comments about Rodolfo’s age; the supervisor should have been warned to cease this behavior and disciplined if he continued. Rodolfo had an exemplary record of employment; there was no (written) indication that his performance had deteriorated. When Rodolfo felt less capable of doing his regular job and requested a transfer, he was denied the opportunity based solely upon his age. When he requested time off for the knee surgery, it was granted; there was no indication that his job would be eliminated during his absence, but that’s exactly how Aerol proceeded.
    A Word to the Wise on Aging
    Savvy employers would do well to learn from Aerol’s mistakes:
    – Never assume that based solely upon age a worker is “too old”
    – Focus on the essential job requirements: employees must be able to safely perform jobs as specified (some accommodation based upon age should be considered)
    – Document any problems in performance
    – Train supervisors in managing older workers (along with women, minorities, disabled workers and any other protected classes)
    – Above all, keep lines of communication open.
    Rodolfo gave 36 years to Aerol. He deserved consideration as he grew older, but he was not guaranteed a job. If and when any issues of his job performance arose, his supervisor should have sat down with him to discuss them openly. Ironically, there are no real winners in this situation: Aerol (or its insurer) took a big hit economically. They also lost a loyal employee who was still capable of making a positive contribution to the company. Rodolfo lost the job he loved and lived for. To be sure, he now has a nice nest egg for retirement, but that is not what he wanted most. He was one older worker who just wanted to keep on working.