Tuesday, January 8, 2013

Job Satisfaction and Ability

Mr. Crabbs: Phew! For a second there I thought I was gonna have to pay you workman's comp-er-sation.

SpongeBob: What's workers' compensation Mr. Crabbs?

Mr. Crabbs: You know. When you get paid for sitting at home.

SpongeBob SquarePants, "The Splinter."

I've often opined that the reward system in workers' compensation is backwards.

Workers' compensation rewards people for not working - being disabled in the parlance of the industry. My impression is that if the reward system were reversed so that people injured at work would be compensated for productivity, as opposed to disability, there would be much less controversy and ultimately costs would decline as a consequence.

There have been several published studies in the past 20 years that have basically concluded that single biggest determinant of an injured worker's "disability" is job dissatisfaction, which can come in many forms from hating the boss, boring work, pay grade, etc.

The reverse is likely quite true - that really good jobs attended to by happy employees result in much less "disability."

While not a workers' compensation case, nevertheless a prison guard demonstrated this notion when he got demoted due to an inability to perform the physical aspects of the job following return from a severe automobile accident injury.

Bruce Furtado worked as a guard for the California Department of Corrections and Rehabilitation. The department promoted him to a lieutenant position in 1994.

As a lieutenant, Furtado was classified as a peace officer. The court opinion doesn't go into this, but the promotion to "peace officer" carries with it increased pay and benefits - substantially so - over non-peace officer positions.

But, as a peace officer, Furtado was required to be certified annually in the use of a baton.

In December 1997, Furtado sustained serious injuries to his left shoulder, forearm, elbow and hand in an off-duty car accident. The injuries to the nerves in his left upper arm and his hand resulted in an overall loss of grip strength, loss of range of motion, and difficulty in forming a fist, and caused permanent decreased functioning in his left arm and elbow.

Furtado's physician released him to return to work in September 1998. Since the doctor said Furtado was not able to perform the duties of a correctional lieutenant, the department medically demoted Furtado to a non-peace officer position of Staff Services Analyst.

The department reinstated Furtado to the position of correctional lieutenant after he obtained a medical release from his physician in December 2002, but after a few days, the department reassigned him to the Staff Services Analyst position based on concerns with his physical abilities.

The department asked Furtado to undergo a test in his use of a side handle baton. The instructor who administered the test said Furtado failed multiple aspects of it because of his physical limitations.

The department then gave Furtado eight hours of baton training and had him tested by a second instructor. This instructor also said Furtado failed the certification test, primarily as a result of problems with his left arm and hand.

In August 2003, before the department had taken any action with respect to Furtado's failure to certify with the side handle baton, Furtado submitted a written request for accommodation. In his request for accommodation, Furtado stated that his physical limitations were permanent and asked that he be relieved of the requirement that he certify with the baton.

The department then scheduled Furtado for a "fitness for duty" evaluation by Dr. William Davidson.

Davidson noted that Furtado had a limited range of motion in his left shoulder, left elbow and left wrist. The limitations were permanent and rendered Furtado unable to perform a number of the duties required of correctional lieutenants, Davidson said.

The day after Davidson submitted his written report to the department, Furtado submitted a letter from his doctor stating he was "Okay to resume full duty."

Based on Davidson's evaluation and the fact that Furtado had failed two side handle baton tests, the department determined that Furtado was unable to perform the essential functions of the correctional lieutenant position. The department offered him other positions, and Furtado accepted an Associate Government Program Analyst position at the California Institute for Men.

After that, though, Furtado sued the department contending he had been denied a reasonable accommodation for his disability and discriminated against on the basis of his disability by medically demoting him from his correctional lieutenant position.

Let's pause a minute to reflect on this fact pattern. The accident was in 1997. Furtado returns to work in 1998 but in a non-peace officer position which doesn't carry with it the same pay and benefits as a lieutenant peace officer. Eventually, four years later, Furtado convinces his physician to release him to full duties - but the employer actually witnessing the physical demonstration of his abilities on the job feels he can't do it.

As one might imagine, this decision is not done lightly and the time frame exemplifies this. Whether for the safety of the employee, the safety of the prisoners, the liability of the state and department - it is clear that if Furtado could have done the job the department would willingly allow him to do so.

And the motivation for Furtado to do the job was there - he actively sought to be placed back into his former position. Whether it was pay, benefits, the work itself, his bosses; the bottom line is that Furtado was motivated to return to his old job. In a reversal of what we callously expect, Furtado had Job Satisfaction

When one has Job DISsatisfaction, then one has DISability.

When one has Job Satisfaction, then one tends to have Ability.

The 4th District Court of Appeal upheld the trial court's refusal to grant mandate, supporting the California State Personnel Board opinion that the department had reasonably determined that Furtado was unable to perform the essential functions of his correctional lieutenant position even with reasonable accommodation. The board said the department also acted properly in medically demoting Furtado to the position of Associate Governmental Program Analyst.

The court said substantial evidence also indicated that using a baton in a prison facility was in fact a significant requirement of peace officer's job because it is one of the methods that prison staff members use to defend themselves against armed inmates, and to disarm, subdue and apply restraints to inmates.

So, unfortunately for Furtado, who obviously had the motivation to return to his pre-injury position, circumstances worked against him.

What would workers' compensation be like if the rewards of returning to work instilled the motivation that Furtado demonstrated in this case?

I think we would be looking at an entirely different world.

Case: Furtado v. State Personnel Board et al., No. D059912, 01/07/2013, published.

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