Amalgamated Transit Union Local 1277 v. Mta

• Decision Date: 28 March 2003
• Docket Number: No. B153994.,B153994.
• Citation: 107 Cal.App.4th 673,132 Cal.Rptr.2d 207
• Court: California Court of Appeals Court of Appeals
• Parties: AMALGAMATED TRANSIT UNION, LOCAL 1277, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

132 Cal.Rptr.2d 207

107 Cal.App.4th 673

AMALGAMATED TRANSIT UNION, LOCAL 1277, Plaintiff and Appellant, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Respondent.

No. B153994.

Court of Appeal, Second District, Division 2.

March 28, 2003.

Rehearing Denied April 17, 2003.

Review Denied June 25, 2003.^*

Neyhart, Anderson, Freitas, Flynn & Grosboll, William J. Flynn, San Francisco, Linda Lu Castronovo, Oakland, for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Brian P. Walter, Los Angeles, Kevin R. Dale, for Defendant and Respondent.

BOREN, P.J.

An employee who eventually recovered fully from an industrial injury sought to return to her job as a mechanic. The employee's union filed a grievance under the collective bargaining agreement requesting the employee be returned to work and seeking back pay for her. But even after she was capable of working without any restrictions or limitations, she was for a time not permitted by her employer to return to work.

Appellant Amalgamated Transit Union Local 1277 (the Union) appeals from the trial court's denial of a petition to compel the employer, respondent Los Angeles County Metropolitan Transit Authority (the MTA), to arbitrate pursuant to their collective bargaining agreement. We find that the Workers' Compensation Act is not an exclusive remedy that would preclude arbitration, that the dispute is covered by the arbitration provision in the collective bargaining agreement, and that arbitrator is to resolve the issue of attorney fees.

ACTUAL AND PROCEDURAL SUMMARY

Nadine Sutherland has been employed by the MTA as a bus mechanic since 1985. In December of 1995, Sutherland was working at her job and holding a tool when she injured a finger on her left hand, her dominant hand. She recovered from the injury to her finger, but then developed tendonitis. Thereafter, Sutherland's radial collateral ligament was partially torn, and she was treated with a series of cortisone injections. In February of 1997, she had some loss of strength in her grip, but was deemed fully capable of performing her duties as a mechanic. She was not considered a qualified injured worker.

Further problems ensued with Sutherland's left arm. She was diagnosed as having radial tunnel syndrome. In January of 1998, Sutherland had surgery. The surgery, which resulted in a six-inch scar on her on her forearm, was successful. Approximately three months later, she returned to her job without any restrictions. But her symptoms returned, and she stopped working for 10 days at a time in September of 1998 and February of 1999. Sutherland was treated with a corticosteroid injection into the radial tunnel and with an anti-inflammatory medication. During a two-year-long disability leave that began on May 30, 1999, Sutherland's condition improved.

In the interim, Sutherland saw several doctors regarding her workers' compensation claim. In August of 1999, Dr. Mark Mandel, the agreed medical examiner for Sutherland's workers' compensation case, noted that Sutherland's job as a mechanic required her to lift and move items weighing up to 50 pounds, although she occasionally lifted heavier items. Dr. Mandel found that Sutherland "can do occasional lifting up to 75 lbs." but would need assistance in lifting items heavier than that.

However, Dr. Mandel concluded that in light of the industrial injury Sutherland had suffered, her job would have to be modified for her to continue working as a mechanic. Dr. Mandel determined that "[i]f modification is not possible, then she is indeed to be considered a qualified injured worker." The MTA determined that it could not provide the job modifications proposed by Dr. Mandel and deemed her a qualified injured worker.

In September of 1999, Dr. Brent Miller, Sutherland's primary treating physician, issued a progress report. He recommended amending Sutherland's work status to require no repetitive strenuous gripping or grasping with the left hand and a weight lifting restriction of 25 pounds. Dr. Miller found that this would preclude Sutherland from "returning to her usual and customary job as a heavy duty bus mechanic," and he recommended vocational rehabilitation.

In December of 1999, Sutherland through her Union filed a grievance. The grievance alleged that she wanted to go back to work but that the MTA acted in bad faith. Sutherland referred to Dr. Mandel's observation that mechanics are required to lift items up to 50 pounds, and that Sutherland could lift items up to 75 pounds. She thus requested back pay from August 11, 1999, the date of Dr. Mandel's report, and requested to be allowed to return to work.¹

Several days later, the MTA denied Sutherland's grievance. The MTA's denial of the grievance stated: "We are not able to modify your job to the degree indicated on the Agreed Medical Examiner's Report. Therefore based on the Agreed Medical Examiner's Report you have been deemed a Qualified Injured Worker. You are eligible to receive Vocational Rehab." The MTA's denial was based on its determination that Sutherland's complaint was "not a grievance because there has been no contract violation [and that the matter] is a workers comp issue."

Approximately six months later, on June 1, 2000, after a second-step hearing on Sutherland's grievance, the MTA again denied the grievance. The MTA defined the issue as whether Sutherland had been "denied the opportunity to work." The MTA noted that the Union's position was that since Dr. Mandel, the agreed medical examiner, had found 10 months earlier that Sutherland would only need assistance in lifting objects weighing more than 75 pounds, she would be able to return to work as a mechanic if the MTA would accommodate this restriction. The MTA observed that Dr. Mandel had also suggested additional work restrictions for Sutherland and a modification of her job with a "lateral shift" within the transit authority structure to a less hand-intensive job. However, the MTA denied the grievance at the second step on the basis that "the final decision on her ability to return to her pre-injury occupation will be adjudicated by the Worker's Compensation Appeals Board."

On June 7, 2000, the Union requested that the MTA arbitrate the grievance.² The MTA refused to arbitrate Sutherland's request for back pay and to return to work.

On June 14, 2000, Sutherland applied for a disability retirement from the MTA. At the request of the MTA in August of 2000, Dr. J. Yogaratnam evaluated Sutherland, who was still on a total disability medical leave. Sutherland did not at that time consider herself to have any current medical problem and stated that she "would like to go back to work." Dr. Yogaratnam's examination revealed no evidence of any medical deficiency, and he concluded that Sutherland "may return to her regular work duties without restriction." The MTA then denied Sutherland's request for a disability retirement.

In September of 2000, the MTA sent the Workers' Compensation Appeals Board (WCAB) a copy of Dr. Yogaratnam's report, which found Sutherland capable of returning to her job without any restrictions. The WCAB then ordered Dr. Mandel to re-examine Sutherland.

On November 13, 2000, Dr. Mandel reexamined Sutherland and issued to the WCAB an agreed medical examiner's final rating report. Dr. Mandel suggested only as "a prophylactic restriction" a modified position as a mechanic, permitting her to "return to work as long as she obtained some assistance in lifting items weighing more than 75 lbs.," and finding that she did not need to be retrained. According to Dr. Mandel, Sutherland "does have sufficient function that she can return to work as a Mechanic A [her classification at the MTA]."

Dr. Mandel also noted in his November 2000 report that approximately three months earlier Dr. Yogaratnam had similarly determined that Sutherland "could return to her regular job duties without restrictions." Dr. Mandel concluded as follows: "I am not going to give her an actual restriction, but I am going to phrase it as a prophylactic restriction that is not of sufficient magnitude that it is going to impact upon her ability to safely perform her job.... The patient, therefore, should be returned to her job duties as a Mechanic A, and this will obviate the need for retraining."

According to the MTA's risk management claims manager, the MTA then decided to take Dr. Mandel's deposition to "clarify" statements in his report and to explain certain unspecified contradictions between his August 1999 report and his November 2000 report. Apparently, some delay ensued because of Dr. Mandel's schedule, and an MTA attorney finally took his deposition on April 17, 2001.

Meanwhile, on April 10, 2001, the Union filed a petition to compel arbitration. At a hearing on the matter, the trial court remarked that nothing in the collective bargaining agreements "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. Such an agreement would not make any sense." The trial court also opined that since the MTA was abiding by the statements of the medical examiners, the Union had not demonstrated a viable discrimination claim under Labor Code section 132a (a claim, however, later settled before the WCAB and resolved in Sutherland's favor).

On August 20, 2001, the trial court denied the Union's petition to compel arbitration and for an award of attorney fees, and then denied the Union's alternative request to amend the complaint to state a claim for breach of contract. After the MTA prevailed, it moved for attorney fees and costs as provided in the 2000 Agreement, but thereafter withdrew its request.

On May 9, 2001, the MTA permitted Sutherland to return to work as a mechanic. At the time Sutherland returned to work from her disability...