Injured nurse can’t get benefits under Chapter 151B

A certified nursing assistant who received workers’ compensation benefits for injuries sustained at work was not a qualified handicapped person under Massachusetts’ Chapter 151B because she failed to prove she could perform the essential functions of her job with or without accommodation, a U.S. District Court judge has ruled.

The plaintiff employee, who was unable to return to her position at the end of a two-month period but was allowed to go back under a modified-return-to-work program, argued that her employer was required to extend the program or grant her a leave of absence.

But Judge Denise J. Casper disagreed and allowed summary judgment in favor of the employer, a company that provides hospice services to individuals in nursing homes and private residences.

“[The employer] had no obligation to create a temporary position for [the plaintiff] for sixty days (although it did so in the form of the modified duty position as a hospice assistant under the Program) because she could not perform the essential functions of her position as a CNA,” Casper wrote. “A reasonable accommodation provided to an employee with a handicap is to allow her to perform the essential functions ‘of the position involved,’ — i.e., the plaintiff’s original position.”

The 19-page decision is Cailler v. Care Alternatives of Massachusetts, LLC.

Confusion in plaintiffs’ bar

Boston lawyer Andrea C. Kramer, who represented the defendant employer, conceded that an employee who sustains an injury compensable under the workers’ compensation statute can also be considered handicapped under Chapter 151B.

But to qualify under 151B, the employee must first prove he or she is capable of performing the essential functions of the job with or without reasonable accommodation, said Kramer, who practices at Hirsch, Roberts, Weinstein.

“One of the reasons this case is so important is because it demonstrates loud and clear that in order to establish an employee is a qualified handicapped person, he or she has to show that some kind of an accommodation exists,” Kramer said. “That simply couldn’t be done here.”

Kramer said the employee, like many plaintiffs in discrimination suits, did not present any evidence to support her claim. Failure to do that means the discrimination case has to be dismissed as a matter of law, she said.

When it enacted the state’s discrimination laws, the Legislature did not intend to give workers injured on the job more rights than any other employees, Kramer said.

“It is my impression that there is some confusion, particularly among the plaintiffs’ bar, about the interaction of the workers’ compensation statute and disability law,” Kramer said. “In this case, the plaintiff thought she could skip the first two elements of the disability claim, which is that you prove you have a handicap and that you are capable of doing the job with or without accommodation.”

The judge also held that the employer was not obligated to create a new position for the injured employee or provide her an indefinite leave of absence, Kramer said.

“A lot of companies have put these modified-duty programs in place as a way to transition people back to their full-time employment,” she said. “But it’s not something they have to do, and this decision says an employer is not going to be punished for having one.”

Maria M. Scott of Keches Law Group in Taunton, Mass., represented the plaintiff employee. She said her client is considering an appeal.

Although she acknowledged that an employer does not have to hold an injured worker’s job open indefinitely, Scott said the plaintiff did not know the company’s policy required her to return to work within 60 days.

“The employer failed to engage in any dialogue with my client prior to her termination,” Scott said. “Instead, the company applied a hard-and-fast, rigid rule with regard to its 60-day return to work policy.”

Injured at work

In February 2006, plaintiff Jeannine Cailler began working at Care Alternatives as a certified nursing assistant caring for patients during the last months of their lives.

She was injured outside of work in early 2008 and took a leave of absence pursuant to the Family Medical Leave Act. After returning to her job, she injured her back in June while helping a patient.

The next day, the plaintiff told her employer that her doctor said she would be out of work for a week. A few days later, she indicated she would be out for an even longer period of time.

After receiving workers’ compensation benefits from June through Aug. 10, 2008, the plaintiff was still physically unable to perform the functions of her job.

The company let her participate in a “Modified Leave/Return to Work Program,” through which injured employees were allowed to return to work, at their same rate of pay, in some form of modified duty while still recovering.

Work assignments under the program were not designed to become permanent. If employees were not medically cleared to return to unrestricted full-work duties after 60 days, they were advised that “employment may be terminated.”

Under the program, the plaintiff was assigned to the company’s corporate office in Marlborough, performing mostly clerical work. Her duties were different than those performed by hospice aides.

The company regularly communicated with the plaintiff’s doctors about her recovery during her modified duty period.

In September 2008, the company informed the plaintiff in writing that her modified duty was expiring on the 60th day.

Her employment would be terminated, she was notified, if she could not return to full duty by Oct. 11, 2008. After receiving the letter, the plaintiff did not ask her employer if it would extend the 60-day period.

The plaintiff remained unable to perform the functions of her job as of Oct. 10, 2008. Although she had asked her physician when she would be cleared to return to work as a CNA, he was unable to provide her with a date.

When the company fired her on Oct. 11, 2008, the plaintiff filed a Superior Court complaint, alleging in part that she was wrongfully terminated on the basis of her disability in violation of Chapter 151B.

The case was removed to federal court.

‘Essential function’

In granting summary judgment for the employer, Casper said the plaintiff never requested the accommodations she claimed her superiors should have provided: an unpaid, extended leave of absence or continued employment in her modified-duty position.

“The Court finds that neither accommodation [the plaintiff] argues should have been provided were reasonable in light of the undisputed facts here,” the judge wrote. “As she was unable to perform the essential functions of her job as a CNA with a reasonable accommodation, as of August 10, 2008 and then as of October 10, 2008 (when her modified duty under the Program ended), Cailler was not a qualified handicapped person within the meaning of the [statute].”

The plaintiff did not dispute that, at the time of her termination, she was unable to perform the essential functions of her position, Casper said.

“That [the employer] nonetheless created this position … under the Program should not as a policy matter, expose it to greater liability under [Chapter 151B] than employers who do not offer such policies,” she said. “Although once [the employer] did so, their obligations to [the plaintiff] were not excused, … the accommodation [she] now contends should have been provided to her must nonetheless be reasonable.”