Matheson Philosophy on Workplace Safety and Work Injury Evaluation

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The 9 Key Steps to a Defendable Post-Offer: Step 5

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This is step 5 in The 9 Key Steps to a Defendable Post-Offer Blog Series:

Decide between Isometric, Isoinertial and Pure Functional

This installment of our nine part series on post-offer testing looks at the use of isometric, isoinertial, or pure dynamic lifting during an employment test. As a foundation to this discussion we will begin with a reminder of the difference between an essential function and a physical demand.  We will move on from there to a quick look at the Department of Labor’s definition of “lift”, followed by reference to the NIOSH Lift Formula.

The purpose of this series of blog installments is to re-examine our thinking about how we test.

As with many things in life such self-examination begins with the “why” of our actions:Isometric, Isoinertial, and Pure Functional Lifting

The purpose of post-offer testing is to determine if a qualified individual is unsafe when performing the physical or cognitive demands of the essential functions of a specific job.

I have very carefully written the sentence above. It is meant to challenge your beliefs and thinking about four important concepts:

  • Qualified individual – The Americans with Disabilities Act Amendments Act gives employers the power to test individuals after they have moved to the “Conditional Hire” stage of employment. A job applicant becomes a qualified individual, and thus moves to the conditional hire stage, once non-medical means are used to determine if the individual is qualified to perform the job with or without reasonable accommodation.
  • Unsafe – It is important to keep in mind that the short duration of post-offer testing often does not allow us to accurately identify, with an acceptable degree of accuracy, the qualified individual who would be safe for the job in question. Physical or cognitive demands with high levels of endurance demands, rather than short bursts of strength, may not be identified in a short duration test. Examples of this are latent dexterity issues, whole body fatigue, and long periods of concentration. We can identify the qualified individual who does not have the strength (lifting, carrying, pushing, pulling, standing, awkward postures) to meet the demands of the job.  Through the use of special styles of instruction we may be able to identify the qualified individual who has challenges in the area of memory, instructability, concentration, and attention to the task at hand.
  • Physical or cognitive demands of the essential functions – Those of us who came from the old school of vocational evaluation struggle with the important somatic and legal difference between essential function and physical or cognitive demand. In brief, the ADAAA defines “essential function” as the reason the job exists. Not included in this definition is how the job is accomplished. The law does require that an employer respond to a request for reasonable accommodation. When considering such a request, the law does not require the employer to modify the essential functions or productivity standards of an individual’s job. Therefore, if what must be accomplished need not be changed, then what is modified? The answer: the method of accomplishing the task. In other words, the employer may be required to change the method by which a task is accomplished while not changing the degree to which the task is accomplished (the productivity standard) or the reason the task is accomplished (the essential function or the reason the job exists).
  • Specific job – A technique for managing legal exposure when making an adverse employment decision (deciding to not hire or retain a qualified individual) is to use the thought structure of “one individual, one job, one accommodation”. The importance of this thought process warrants a separate blog installment. Suffice to say here that when performing a post-offer test, the employer and evaluator are cautioned to deny employment only when a qualified individual cannot perform demands that exist in the job. To deny employment for phantom demands is not defendable.

Now let’s briefly look at the definition of “lifting” from the The Revised Handbook for Analyzing Jobs (RHAJ). The RHAJ defines lifting as “raising or lowering an object from one level to another (includes upward pulling)”. Given the reference to movement in this definition implies that any reference to an essential function that includes lifting as a physical demand assumes that the action is dynamic.

Supporting the notion of dynamic movement is the NIOSH equation for the design and evaluation of manual lifting tasks. The equation, revised in 1991, recognizes the components of the process of lifting through its use of six force multipliers including angle of asymmetry and travel distance of the load. This recognition of the multiplicative nature of lifting supports the idea of lifting as being a functional, dynamic activity.

And while a brief review of the professional literature seems to yield a clear answer to the question of which type of testing is notpreferable, a look at two recent federal Court of Appeals cases provides a glimpse at the Court’s viewpoint on necessity to test a physical demand in the same manner in which a worker would perform the task.

EEOC v. E. I. Du Pont De Nemours & Co. (Civil Action No. 03-1605), which culminated in a $1,300,000 jury verdict for the EEOC, revolves around the use of an FCE in a stay-at-work situation.

The Court took exception to the style of test used to examine the qualified individual’s ability to evacuate the premises during an emergency. The physical demand linked to the essential function of “evacuate the building” was walking. The technique to which the judges reacted was “walking heel-to-toe carrying a box of weights back and forth on a 100-foot long line.” While perhaps dissimilar to a style of lift, it is important to note that the court did take note of the difference between the style of regular, functional walking as opposed to an evaluator imposed heal-to-toe style of walking.

Another case of note is EEOC v. Dial Corporation, Nos. 05-4183, 05-4311 in which the court took exception to test instruction that resulted in the work performed during the test not being related to the requirements of the job. Specifically, the job required that qualified entry level employees working in the sausage packing area of the facility lift and carry up to 18,000 pounds of sausage per day. The court noted that this requirement included carrying approximately 35 pounds of sausage. The carry was followed by a “lift and load” to heights between 30 and 60 inches above the floor. It was also noted that a day’s cumulative activity included up to four miles of walking while performing the cycle of lift, carry, lift, and load. A job analysis revealed that the job demands included performing 1.25 lifts per minute on average with periods of recovery between lifts.

At issue in this case, among other things, were test instructions that had qualified individuals perform 6 lifts per minute, on average, usually without any breaks, rather than 1.25 per minute.

The lesson for work evaluators is to consider the detail to which the court went to examine the style of testing used to deny employment to otherwise qualified individuals. Whether selecting isometric, isoinertial, or fully functional tests, the Thinking Evaluator is cautioned to be prepared to testify as to the reason behind the style of testing selected.

The 9 Key Steps to a Defendable Post-Offer:

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Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating
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