By now it is almost cliché to talk about the “Bermuda Triangle” of employment law – difficult issues involving the ADA, FMLA and Worker’s Compensation and the consternation they cause employers. Recently, however, Wessels Sherman attorney Alan Seneczko, who manages the firm’s Wisconsin office, won a big victory for a client seemingly caught in that quagmire.

In Peters v. Dielectric Corporation, Case No. 18-cv-811 (E.D. Wis. Oct. 17, 2019), the plaintiff filed claims under the ADA and FMLA, alleging that the company failed to accommodate her disability and interfered with her right to reduced leave when it refused to allow her to work in her position 30 hours per week subject to a 20 pound lifting restriction, as she had been doing for three years due an alleged work-related back injury and the medical certifications she had submitted in connection with it. The company transferred her to another position after it was forced to eliminate part-time work in the position she had been working. She then claimed that the new position caused her problems and demanded to return to her former position.

In the meantime, the company received copies of records that the plaintiff had filed in support of her worker’s compensation claim, including reports from her treating physician and vocational experts. One document included permanent restrictions – which she had never presented to the company, that restricted her from performing any repetitive work with her hands, an essential function of her job. The report from her vocational expert included his conclusion that the requirements of her job exceeded her restrictions, as well as her report that her sister was helping her do the lifting, bending and carrying required of the job. After reviewing this information and conducting an interactive accommodation conference with the employee, the company concluded it had no work within the employee’s restrictions and terminated her employment, which prompted the ADA and FMLA claims.

Seneczko argued that, in light of the plaintiff’s permanent restrictions from her treating physician and the opinion of her own vocational experts, she was not a “qualified individual” protected under the ADA or entitled to leave under the FMLA, because she was not able to perform the essential functions of her job, with or without accommodation. He also argued that the representations she made in order to secure worker’s compensation and Social Security Disability benefits judicially estopped her from taking a contrary position in order to prevail in her ADA and FMLA claims. The court agreed and dismissed her case, finding:

Peters cannot have it both ways – she cannot assert an inability to do anything repetitive with her hands in the hopes of obtaining disability or worker’s compensation benefits, while at the same time present herself as able to perform the essential functions of her job . . . which includes repetitive use of the hands, in order to secure employment.

It reached a similar conclusion with respect to her FMLA claim:

If Peters now asserts that her medical condition was either not permanent or that the restriction regarding repetitive use of her hands was incorrect, that defies her assertions in her Social Security disability application, her worker’s compensation case, and her testimony in this case. While [the company] had been granting Peters intermittent FMLA leave for years, once it learned through her doctor’s restrictions that she could no longer perform the essential functions of the job . . . [it] had no duty under the FMLA to return Peters to her position.

Simply stated, you cannot have it both ways.

Oliver Wendell Holmes once said, “Do not be bullied out of your common sense by the specialist . . . ” The same can be said when dealing with issues under the ADA, FMLA and worker’s compensation. Sometimes, you just have to take people at their word – and that of their own experts.

If you have questions about the ADA, FMLA, duty to accommodate and/or worker’s compensation – and how to deal with all three of, feel free to contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.