Blog Post

Indergard v. Georgia-Pacific Corp., No. 08-35278 (9th Cir. Sept. 28, 2009)

Posted by: Paul Mollica
September 29, 2009
Topic: Daily Developments in EEO Law

A Ninth Circuit panel splits 2-1 over whether requiring a physical capacity evaluation (PCE) for employees returning from medical leave constitutes a prohibited medical examination, or a lawful physical fitness test, under the ADA, 42 U.S.C. § 12112(d)(4)(A).

Indergard v. Georgia-Pacific Corp., No. 08-35278 (9th Cir. Sept. 28, 2009): The plaintff, who did mill work, took medical leave to recover for injury to her knees. She was subjected to a two-day full battery of physical examinations, the PCE, before her return to work, which included a treadmill and lifting tests. Vicky Starnes, a state-licensed occupational therapist at Columbia Rehabilitation (hired by Georgia-Pacific), conducted the PCE. The results were negative:

"Starnes measured and recorded Indergard's heart rate after she performed the treadmill test, and noted that she required 'increased oxygen' and demonstrated 'poor aerobic fitness.' Starnes concluded that Indergard was unable to perform the sixty-five pound lift and carry that Blickenstaff had identified as a requirement of the Napkin Operator position, or the seventy-five pound lift . . . identified as a requirement for the Napkin Adjuster position. Starnes recommended that Indergard not return to work, and forwarded the results of the PCE to Dr. Ketzler, who agreed with Starnes's assessment."

Plaintiff asserted that the PCE was a prohibited medical examination under the ADA and Oregon state law. While the district court found that the examination was a proper fitness exam, the panel majority revereses and finds the exam was used substantially for the illegal purpose of detecting disabilities (remanding the issue of whether the PCE was job related and consistent with business necessity).

Following the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations (available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html), the panel majority cites seven factors that may be used to determine whether a test violates 42 U.S.C. § 12112(d)(4)(A):

"(1) whether the test is administered by a health care professional

"(2) whether the test is interpreted by a health care professional

"(3) whether the test is designed to reveal an impairment of physical or mental health

"(4) whether the test is invasive

"(5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task

"(6) whether the test normally is given in a medical setting [and]

"(7) whether medical equipment is used."

Weighing the factors, the panel majority finds that they mostly tilt in favor of the employee's claim:

"The EEOC Enforcement Guidance identifies seven factors as relevant to determining whether a test is a medical examination, and at least four weigh in Indergard's favor. First, although Starnes is not a medical doctor, she is a licensed occupational therapist. Nothing in the EEOC Enforcement Guidance indicates that the term 'health care professional' should be limited to only doctors, and at least one district court has found that the fact that a PCE 'was administered by a business specializing in physical therapy, and not a medical doctor, makes it no less ‘medical' than a nurse taking one's blood pressure . . . . Second, not only did Starnes administer the PCE, but she interpreted Indergard's performance and recommended that she not return to work. . . . Third, although the PCE was ostensibly intended to determine whether Indergard could return to work, the broad reach of the test was capable of revealing impairments of her physical and mental health, particularly in light of Starnes recording Indergard's subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior. . . . [Finally] [t]he fifth factor . . . benefits Indergard because Starnes recorded her heart rate and breathing pattern after the treadmill test, and Indergard's muscle pain and stiffness after the first day of testing. These are measurements of Indergard's physiological response to her performance of a task and, as discussed above, go beyond collecting information necessary to determine whether Indergard was physically capable of performing the task." [Citation omitted.]

In sum:

"The purpose of the PCE may very well have been to determine whether Indergard was capable of returning to work. The substance of the PCE, however, clearly sought 'information about [Indergard's] physical or mental impairments or health,' see EEOC Enforcement Guidance, and involved tests and inquiries capable of revealing to GP whether she suffered from a disability. Therefore, we hold that the PCE was a medical examination under 42 U.S.C. § 12112(d)(4)(A)."

In dissent, Judge O'Scannlain raises two objections to the majority's analysis. First, he would reject the EEOC's Enforcement Guidance as "subvert[ing] the plain text of the statute." Second, he would hold that because the PCE did not cause the employee to lose her job (i.e., she would have failed the lifiting requirements to return to work), she would have no claim anyway. "Here, even assuming that Georgia-Pacific technically violated § 12112(d)(4)(A) by measuring Indergard's pulse and range of motion, she has made no showing that such measurements have proximately caused her to lose her job."