Southeast ADA Center
2007
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As a preliminary note, the original plaintiff in this case, Barbara Brown, has passed away due to chronic obstructive pulmonary disease (COPD). Her husband has continued this case as executor of her estate.
Barbara Brown worked for the Lincoln Trail District Health Department where she often assisted with immunizations and both sick-child and well-child checks. Through this employment, Ms. Brown became a member of the Kentucky Retirement Systems (KRS) on March 31, 1992.
In March 1998, Ms. Brown required emergency medical services, at which time a radiologist who reviewed Ms. Brown’s chest x-ray noted changes suggestive of COPD with moderate bilateral upper lobe emphysema. Ms. Brown was not diagnosed with COPD or emphysema at this time, however, she was diagnosed with acute bronchitis and told to return if her condition worsened. Ms. Brown was given a prescription and resumed her normal physical routine including walking up to four miles a day and mowing her own lawn with a push mower.
Two years later, in June 2000, a new chest x-ray was taken and compared with the 1998 chest x-ray. Ms. Brown’s lungs were found to be clear and there was no active disease. In September 2000, a medical exam again was suggestive of COPD. Finally, in February 2001, nine years after becoming a member of KRS, Ms. Brown was diagnosed with COPD.
In September 2001 Ms. Brown’s pulmonologist recommended that she use oxygen with all activities and at nighttime. In May 2003, when Ms. Brown’s condition had worsened, the pulmonologist recommended that she be permitted to use oxygen on the job as an accommodation to allow her to continue working.
Rather than provide this workplace accommodation, Ms. Brown’s employer instructed her that: “When there is a need to use oxygen, you will need to advise your supervisor that you would be implementing your need for Family/Medical Leave. You should go to an office and initiate an oxygen treatment for [the] amount of time needed before returning to regular duties. Time should be coded to sick and/or vacation if available. Otherwise, you will be FML without pay.”
Ms. Brown’s condition worsened to the point where she required oxygen at all times and the above accommodation was not workable. Ms. Brown’s last day of employment was May 31, 2003, after which she filed for disability benefits with KRS.
KRS denied Ms. Brown’s claim and she challenged their denial. A hearing that followed found: (1) Ms. Brown failed to prove she was totally and permanently disabled; (2) Ms. Brown failed to take advantage of the reasonable accommodation provided by her employer, and; (3) Ms. Brown’s emphysema and COPD were, or resulted directly or indirectly from, a pre-existing condition.
Ms. Brown challenged this decision and filed suit in circuit court where the decision was reversed. The judge ruled that: (1) the facts of the case did support a finding that Ms. Brown had a total and permanent disability; (2) allowing an employee to take sick leave or leave without pay, a benefit the employee is already entitled to, is not a reasonable accommodation, and; (3) Ms. Brown’s smoking behavior was not a pre-existing condition precluding disability retirement benefits. KRS has appealed this decision.
https://adasoutheast.org/court-decisions/kentucky-retirement-systems-krs-v-brown
Keywords: WIOA (formerly WIA), employment, legal concepts, recuperative leave, state & local government