Metropolitan News-Enterprise


Monday, March 31, 2003


Page 1


Workers’ Compensation Act No Bar to Labor Arbitration—C.A.


By KENNETH OFGANG, Staff Writer/Appellate Courts


The exclusivity of the workers’ compensation remedy does not bar a contractual labor arbitration concerning an on-the-job injury, the Court of Appeal for this district ruled Friday.

The Amalgamated Transit Union, Local 227 won an order compelling arbitration of its grievance on behalf of Nadine Sutherland against the Metropolitan Transportation Authority, as the court’s Div. Two reversed Los Angeles Superior Court Judge Kenneth Freeman’s order denying arbitration.

A labor arbitration is not “an action at law for damages against the employer” and is not barred under Labor Code Sec. 3602, Presiding Justice Roger Boren said.

The dispute stems from Sutherland’s efforts to return to her job as a bus mechanic. She started work in 1985, suffered a finger injury in 1995, developed additional problems in 1997, had surgery the following year, and took two short leaves in 1998 and 1999, followed by a two-year leave between 1999 and 2001.

In connection with her workers’ compensation benefits claim, she was seen by an agreed medical examiner, who said she could do “occasional lifting up to 75 lbs.” and said the agency needed to modify her duties or treat her as a qualified injured worker. MTA opted for the latter.

Her primary treating doctor said that without modification of her duties, she could not return to her job and should be given vocational rehabilitation.

Bad Faith Alleged

The union filed its grievance in late 1999, saying the MTA acted in bad faith in failing to return Sutherland to her job. It requested reinstatement with back pay from the date of the AME’s report.

The MTA, however, insisted that the dispute was a “workers’ comp issue” not covered by the grievance procedure, as a result of which the union filed its petition to compel arbitration.

The contract clause allows the union to arbitrate any “grievance or dispute with respect to the interpretation or application of any terms of this Agreement.”

In the meantime, Sutherland applied for disability retirement, which was denied after the examining physician said she could “return to her regular work duties without restriction.” When that doctor’s report was sent to the Workers’ Compensation Appeals Board, a new examination by the AME was ordered, and he concluded that she could return to work with a slight modification—that she be given assistance if it became necessary to lift objects weighing more than 75 pounds.

Trial Court

Freeman ruled that nothing in the collective bargaining agreement “requires the MTA to arbitrate the issue of an employee’s ability to return to work if the employee has a pending workers’ comp claim and an agreed medical examiner has stated that the employee needs modification, vocational rehabilitation or restriction.”

Sutherland returned to work in May 2001, and eventually received a workers’ compensation settlement, including a $35,000 back pay award to be credited against any recovery in the event she prevailed in the arbitration dispute.

Boren said the trial judge “may have improperly focused on the merits of Sutherland’s claim.” It is up to the arbitrator, not the judge hearing a petition to compel arbitration, to decide whether the collective bargaining agreement has been violated, the presiding justice said.

Attorneys on the appeal were William J. Flynn and Linda Lu Castronovo of Neyhart, Anderson, Freitas, Flynn & Grosboll for the union and Brian P. Walter and Kevin R. Dale of Liebert Cassidy Whitmore for the MTA.

The case is Amalgamated Transit Union, Local 1277 v. Los Angeles County Metropolitan Authority, B153994.


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