|Physical Ability||TYPICAL TASKS||Environmental Factors|
|1. Stamina||- Black top asphalt; shovel dirt/sand/gravel; carry/chip brush/trees; operate asphalt router||1. EXPOSURE TO SUN 50% - 100% outside|
|2. Extent Flexibility||- Pull/carry brush/tree parts to chipper; shovel from/out of truck bed; operate concrete saw||2. HIGH TEMPERATURE hard labor 80 90 degrees|
|3. Dynamic Flexibility||- Cut brush/trees; operate concrete saw; use a pick; pick up concrete pieces after a "blow-up"*||3. WETNESS occasional wetness|
|4. Static Strength||- Carry snow fence rolls/concrete pieces; shovel asphalt; operate concrete saw/asphalt router; load monuments**||4. NOISE frequent loud noises|
|5. Explosive Strength||- Drive fence posts for snow fence; pull brush up ditch bank; cut trees with chain saw||5. SLIPPERY SURFACES occasional work on slippery surfaces|
|6. Dynamic Strength||- Climb ditch/guard rails; road repair/patch; pick up trash; flag traffic||6. OIL occasional contact with oil or grease|
|7. Trunk Movement||- Cut tree limbs with chain saw from basket truck; operate chain saw; lift/roll/stack snow fence||7. BODILY INJURIES frequent possibility of bodily injury|
|8. Speed Limb Movement||- Drive/operate snowplows; drive under ice/snow conditions|
|9. Gross Body Coordination||- Operate truck/snowplow/plow wings simultaneously; trim trees|
|10. Gross Body Equilibrium||- Carry snow fence; repair/replace roof of sheds; stand on icy freeway ramp|
|------||------||14. IRREGULAR OR EXTENDED WORK HOURS occasionally work beyond normal hours|
Present to Undetermined Degree
1. Work above floor level
2. Low temperature
3. Sudden temperature changes
4. Confirmed or cramped body position
|18. Mobility||- Flag traffic; dodge incoming traffic|
|19. Effort||- Operate air hammer/jackhammer; blacktop; cut weeds by hand|
* "Blow-up" indicates an area where heat expansion fragments road surface requiring clean out debris and patching.
* Monuments large concrete markers used for surveying.
The Grievant continued in the Maintenance Worker position and the parties continued to attempt to resolve the matter. During that time, the Grievant considered it his work to cut and haul brush along the roadside across from the Highway Shop. When Coopman saw the Grievant doing this, he told him to "take it easy" and assigned other employes to help him. The Grievant was also required to inspect work being done on the Highway Shop roof and at times used a ladder or aerial lift to get on the roof.
In early December of 1997, the parties agreed that they would have Dr. Prchal perform a "fitness for duty examination" on the Grievant to determine whether, in her medical opinion, the Grievant was medically qualified to perform the essential functions of a Patrolman as listed on the position's job profile. By letter of December 3, 1997, Pedersen sent Dr. Prchal the
Grievant's medical information regarding his knee injury, including her own reports and those of Dr. Suster and Dr. Mayr, as well as the job profile for the Patrolman position.
Dr. Prchal examined the Grievant on December 8, 1997 and scheduled him for a Cybex test of his lower extremities. The Grievant had a Cybex test done on December 11, 1997 and Dr. Prchal's notes in that regard read as follows:
CHART CHECK: John's Cybex test was done on 12-11-97 at SLT and the results were reviewed by me today. A comparison was made between his left involved knee and his right uninvolved knee with both being tested on 12-11-97. He has a 20% deficit in the left quads an actually has 34% greater strength in the left hamstring as compared to the right. Comparing his recent left results to his previous left results of 8-26-96, his peak torque of the quads has increased 51% and the peak torque of the hamstrings has increased 23%. Based on the fact that the weakest spot is his quadriceps and that only has a 20% deficit, I believe that he is not at any significantly increased risk or reinjurying his knee if he returns to the position of a patrolman. A form was sent to the Personnel Dept. at Walworth County advising them that he is medically capable of performing the essential functions of the patrolman job. C.L. Prchal, M.D./sba
The pay rate of the Maintenance Worker position is the same as that of the Patrolman position, however, there are more opportunities to work overtime in the Patrolman position. From December 1, 1996 to November 7, 1997, the Grievant worked 92.5 overtime hours, while the employe in the Section 4 Patrolman position, Gross, and the employe in the Section 11 Patrolman position, Abell, worked 154.5 overtime hours and 146.75 overtime hours, respectively, during that same period. From December 1, 1997 until August 14, 1998, the Grievant worked 58.25 overtime hours, while Gross and Abell worked 101.75 and 87.5 overtime hours, respectively.
The parties were ultimately unable to resolve the grievances and proceeded to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Union first asserts that the County's refusal to acknowledge Dr. Prchal's and Dr. Suster's medical opinions was arbitrary and capricious. In that regard, the Union asserts that it is traditional in industrial relations that the physician's opinion in matters of medical certification is controlling. In this case, the County decided to repeatedly ignore Dr. Prchal's
advice about the unsuitability of the Shop Maintenance position, as well as her advice to allow the Grievant to drive a truck with a clutch and to work as a Patrolman. The County also ignored the advice of a second physician, Dr. Suster. The Union posits that the County ignored those physicians' advice because it was shopping for an opinion which matched management's uninformed medical conclusion, and in doing so, was acting in an arbitrary manner. The evidence establishes that Dr. Prchal made it clear that the essence of her first limitation opinion was based on the Grievant's pain and not on possible further injury to him. The Union asserts that arbitrators give great weight to competent medical advice, and have even overturned management decisions to ignore physician prognoses before an operation has been performed. Weyerhaeuser Paper Company, 101 LA 457. Conversely, a review of arbitral awards fails to reveal a single case where an arbitrator supported an employer's decision to disregard competent medical advice as the County has done in this case.
Here, the County acted arbitrarily by repeatedly ignoring the competent medical advice of Drs. Prchal and Suster. The County would not have incurred any additional liability by accepting Dr. Prchal's advice. The County attempted to claim that Dr. Prchal was bullied by the Grievant into allowing him to operate a manual transmission, however, the County ignores the fact that it failed to accommodate the Grievant with an automatic transmission vehicle to perform his Patrolman duties or to make any meaningful attempt to accommodate his desire to be restored to Patrolman.
The County also violated the Grievant's rights by not awarding him the Patrolman Section 4 or 11 vacancies. The Agreement provides that personnel transactions be made through a posting procedure which awards vacant positions based on seniority. There is no dispute as to the Grievant's seniority or qualifications to do the work of Patrolman, a job he successfully performed for five years. Any question as to his fitness was answered by Drs. Prchal and Suster. Further, Dr. Prchal's evaluation that the Shop Maintenance job was inconsistent with his condition is also material. The County was arbitrary and capricious by ignoring her competent medical opinion, and nothing established the Grievant was not qualified or fit to be a Patrolman.
Lastly, the Union asserts that the County violated the Grievant's rights by reassigning him to the Shop Maintenance worker position. Nothing in the Agreement empowers the County to involuntarily reassign the Grievant to a lateral position which significantly reduces his overtime opportunities. The Agreement is silent as to reassignment and the only personnel transactions are voluntary moves into vacancies initiated by an employe pursuant to the job posting provision. The County's action violates not only the Agreement, but common sense, in light of Dr. Prchal's specific rejection of the Shop Maintenance position. In doing so, the County not only ignored the doctor's recommendation that the Grievant was able to work as a Patrolman, but forced the Grievant to work in a position inconsistent with his doctor's advice, thereby making the County susceptible to a liability claim in that regard. The assertion that
Dr. Prchal's medical advice was of little value is not supported by the evidence, and is belied by her medical background, her statements and judgments on the record and Dr. Suster's corroborative statements.
The Union concludes that the Grievant should have been classified as a Patrolman as of January 6, 1997 and thereafter, and that he is entitled to the difference in overtime pay between the Section 11 Patrolman position and the Shop Maintenance position for all times since that date to the date of the Award and that he should be immediately restored to the Patrolman classification.
The County first asserts that the grievances only cite three provisions of the Agreement, none of which conclusively disposes of this matter, and which beg the ultimate question of the Grievant's qualifications in light of his physical limitations. Section 8.03 of the Agreement only refers to filling a vacancy, and would not seem to apply to the issue raised in the first grievance, which is a question of a transfer out of an existing position. While Section 8.03 would seemingly apply to the two Patrolman positions for which the Grievant later bid, that provision permits the County to take "ability" into account in filling a vacancy and allows "ability" to outweigh seniority in that process. The second sentence of Section 8.01 provides that unqualified employes need not be considered for postings, and Section 8.03 does not establish whether or not the Grievant was qualified for the position.
Section 23.06 of the Agreement prohibits discrimination based on a number of protected categories. Presumably, the Union is claiming discrimination based on "handicap". While the Grievant certainly has some risk of future injury in certain types of work, he does not meet the definition of a handicapped individual under the law. To meet that definition, an individual must be permanently disabled, unable to perform "major life activities" and is only considered handicapped if he/she is excluded from a broad range of jobs, rather than a few narrow jobs. Further, if the Grievant is disabled to the extent that he falls within the non-discrimination clause found in Section 23.06, he is then likely too disabled to perform the requirements of the Patrolman's job without risk of future injury. Even if the Grievant's physical limitation meets the definition of a disability or handicap, it is an appropriate defense to a discrimination claim for an employer to remove an employe who is not qualified to perform the available work. The County had a legitimate basis to reach that conclusion in this case. Further, Section 2.01 of the Agreement gives the County the right to relieve employes from duty "for other legitimate reasons". Removing an employe from a position which places them at significant risk of future injury is such a "legitimate reason". Finally, to determine whether discrimination has occurred, the Union is obligated to present some comparative factual data concerning other similarly situated employes and has failed to present any such evidence in this case. Thus, the Arbitrator cannot conclude that the Grievant was treated any differently than any other employe.
The third contract provision cited in the grievances is the ADA Letter of Understanding. A review of the document shows that it contains only procedural protections, not substantive limits on the County's right or obligation to comply with the ADA. Nothing in the Letter of Understanding authorizes the Arbitrator to interpret, apply or enforce the provisions of the ADA against the County. The County cites an arbitral award wherein it was concluded that the arbitrator did not have the authority to interpret or enforce provisions of the ADA unless such statutory issues are expressly placed before the arbitrator. Even if the ADA is applied, it clearly does not require employers to place employes in positions for which they are unqualified. In determining whether someone is unqualified, it is appropriate to determine if placement in the position would create a significant risk of substantial harm to the health or safety of the individual based on a reasonable medical judgment. The County clearly complied with its obligations under the ADA by engaging in the exact type of balancing and investigation required by the regulations in coming to a good faith conclusion based on medical evidence. Thus, resolution of this dispute comes down to the question of whether the Grievant's medical condition rendered him unqualified to perform the duties of Patrolman.
The County asserts that its determination that the Grievant was not qualified for the Patrolman position based on a high risk of future reinjury is supported by arbitral and legal precedent. The County cites a number of arbitration cases in which it asserts an arbitrator has balanced the interests of the employer and its employes where an employe's medical condition poses a risk to his/her future health or safety if permitted to continue in the job. Those cases support an employer's right to refuse placement of an employe in a job where doing so places the employe at risk of injury, even where there was medical evidence that the employe was able to do the job, but doing so put the employe at risk of further future injury. In Mueller Company, 105 LA 919 (Bittel, 1996), the arbitrator upheld the employer's removal of an employe from his existing job and placing him in another for which he was qualified primarily on the basis that a doctor had advised the employe not to take a forklift job because of the risk for future injury. The arbitrator also went on to discuss the importance of a clause similar to Article 23.05 in the parties' Agreement which expresses their mutual intent to "provide and maintain safe working conditions." To permit employes to work in a job which exposes them to significant risk of future injury, would not comply with that provision of the Agreement.
The County asserts the record clearly supports the legitimacy of its judgment regarding the qualifications of the Grievant and its reliance upon the opinions of Dr. Mayr and Dr. Suster over those of Dr Prchal. Dr. Mayr carefully analyzed the specific duties of the Patrolman position and the Maintenance position and stated, "My major concern regarding this position is the one of knee stability in the face of uneven working surfaces." He then describes a long list of duties which the Grievant agreed were part of the job, and which would require walking on uneven surfaces. Dr. Mayr concluded: "I, therefore, feel that John is not physically qualified for the full dimension of required tasks for the position of Highway Patrolman in his requirement to avoid uneven work surfaces." He further concluded that: "He
is at a considerable risk for a breakdown of the surgical repair by engaging in tasks similar to the actual cause of injury." Dr. Mayr's opinions were supported by the conclusions of Dr. Suster that it was possible that the Grievant would suffer temporary aggravations from time to time as to his left knee and that "he should avoid all uneven surfaces." While the Union attempts to make much of Dr. Suster's use of the word "should", reading his entire medical opinion, especially in light of Dr. Mayr's opinion, leads to the conclusion that "should" is a limitation, rather than merely a suggestion.
With regard to Dr. Prchal's medical opinions in January of 1997, after recommending that the Grievant receive a trial period in driving a truck with a clutch, she lifted the clutching restrictions, but continued other limitations, advising that the Grievant may not stand on a hard surface such as a concrete floor or a road for more than 30 minutes at a time, and that if he did so, he had to be off his feet for an additional 30 minutes. She indicated no restrictions concerning walking on uneven surfaces. On June 2, 1997, she fully released the Grievant to perform the duties of a Patrolman, despite the fact that Dr. Mayr, three weeks later, completely rejected that opinion. The County questions who it was supposed to rely upon and asserts that the record is clear that Dr. Mayr's medical opinion, along with Dr. Suster's, is far more reliable than that of Dr. Prchal. Dr. Prchal's opinion flip-flops several times. After an assessment of permanency in late November of 1996, she declared that the Grievant would never again drive a truck with a clutch. Without any follow-up medical treatment or surgery, Dr. Prchal then changed her mind, apparently upon the request of the Grievant. After recommending a trial period, she then made a new finding of permanency concerning driving a truck with a clutch completely opposite from her finding only two months earlier. Dr. Mayr's opinion is also more reliable because of his unique and intimate knowledge of the jobs involved. No evidence was presented as to Dr. Prchal's knowledge of the job except those facts reported to her by the Grievant, while Dr. Mayr was earlier part of a detailed and extensive study of the job of Patrolman. Further, Dr. Mayr's opinion is in complete agreement with that of Dr. Suster, while Dr. Prchal's opinion stands alone.
Dr. Prchal's opinion of complete ability to perform the job is also inconsistent with the Worker's Compensation settlement reached with the Grievant based on a determination that he is 15% permanently disabled in his left knee. Having made an assessment of 15% permanent disability, Dr. Prchal's later opinion that the Grievant is fully capable of performing all of his former job duties in June of 1997, is problematic at best.
In assessing the credibility of the various medical opinions, the level of detail provided by the physician is also relevant. The carefully-analyzed and detail-oriented analyses of Drs. Mayr and Suster, as compared to the brief conclusory determination by Dr. Prchal, lends more credibility to their opinions. Also supporting their opinions is the Grievant's own behavior. In the early part of 1997, while working in the Maintenance position, the Grievant was frequently observed resting. If standing in one place or walking for over 30 minutes resulted
in such pain and soreness to his left knee that he was required to take a break, this would indicate that Dr. Suster's and Dr. Mayr's conclusions regarding his left knee were accurate.
Further, the County's legitimate interests must also be considered. The County is self-insured for Worker's Compensation injuries. Thus, there is a very direct cost to the County for future Worker's Compensation injuries. More importantly, the County does not want to place employes in jobs where they most likely will be injured, even without financial consequences. While every job has certain inherent risks which cannot be eliminated, to the extent risks can be controlled or reduced, the parties have mutually agreed through Section 23.05 to take appropriate action to reduce those risks. To permit the Grievant to continue working in the Patrolman position would have put him at risk of future injury and the County was not required to do so. The County carefully analyzed the medical documentation, considered other workplace alternatives that would put the Grievant in nearly the same position as if he had stayed in his old position, and made a reasonable judgment, having carefully balanced the interests of the employe and the County. Further, it remained open to receipt of additional medical documentation as it made its decision. The County concludes that it could not have been more fair or reasonable.
With regard to remedy, the Union requests a remedy that it cannot obtain under the Agreement. The Union claims that by moving the Grievant from one position to another, he received full regular pay and benefits, but lost some overtime. Section 4.03 of the contract clearly states that an arbitrator is authorized to award back pay and benefits, "but not more than the regular wages or benefits that would have been paid had the violation not occurred." (Emphasis added). This does not mean that the County would be able to violate the contract with impunity as long as the only harm to the employe is lost overtime, as Section 10.05 clearly indicates that overtime is to be distributed as evenly as possible among regular full-time employes. There is, however, no time frame as to when overtime must be distributed. Thus, even if it is determined that the Grievant should have been retained in the Patrolman's job, back pay for overtime, which would exceed "regular pay", under Section 4.03, should not be awarded. At most, future priority for overtime opportunities under Section 10.05 should be awarded until such time as the Grievant "catches up" to other similarly-situated employes. The County concludes that it has complied with its obligations under the Agreement and made a good faith determination based on competent medical evidence that the Grievant could not perform the central functions of the Patrolman job without risk of future reinjury to his knee. Thus, it requests that the grievance be denied.
The first issue is whether the County violated the Agreement when it transferred the Grievant from his Patrolman position to the Maintenance position in January of 1997. It is noted that the Grievant was injured in May of 1995 and was either off of work or on light duty
in the ensuing 18 months before he was transferred to the Maintenance position. Section 7.06 of the Agreement states that seniority will be followed in cases of transfer "where the employe is able to perform the work." Section 2.01 authorizes the County to relieve employes from duty for lack of work or "other legitimate reasons." The inability to perform the work without an unacceptable level of risk of further injury or reinjury constitutes a "legitimate reason."
Regarding the duties of a Patrolman, the Highway Commissioner, Coopman, testified that the duties of a Patrolman vary with the seasons and that one in that position might spend 80 percent of his/her time driving the truck during winter months depending on the amount of snow, and only 15 to 20 percent of the time driving during the other months. In those other months, Patrolmen would also be doing patching, crack filling, acting as a flagman, brushing along the roadway, picking up debris and dead animals from the roadway and ditches, clearing out vegetation, cleaning out culvert ends, etc. Driving the truck requires being able to use a clutch and in the winter months might also require sitting in one place for long periods of time. While there was testimony that the County has some trucks with an automatic transmission that can be used to plow snow, there was further testimony that they are not of adequate size to be used on the highways for plowing, and are generally used for plowing out parking lots and like jobs.
The Grievant has asserted he was able to perform the work of a Patrolman in January of 1997, when the County involuntarily transferred him to the Maintenance position then held by a less senior employe. The Grievant further claims that he should not have been placed in the Maintenance position due to Dr. Prchal's restrictions on his walking or standing on the concrete floors. The Union relies on Dr. Prchal's note of January 6, 1997, and the return to work certification for the Grievant she completed on that same date to support the Grievant's claims. Dr. Prchal's statement of January 6, 1997 that the Grievant can try driving a truck with a clutch follows her findings on November 25, 1996 by little more than a month. In those earlier findings, Dr. Prchal concluded that the Grievant continued to have pain in his knee due to activities such as "sitting in one place for a long period of time, standing in one place for more than 30 minutes, and activities which require extending the knee with force such as pressing down the clutch of a truck." She concluded he had reached an end to healing and placed permanent work restrictions on the Grievant of "no driving a truck which requires the use of a clutch and no standing in place for more than 30 minutes at a time."
Dr. Prchal's changes in the Grievant's work restrictions without explanation a little more than a month after placing those permanent restrictions on his work was a reasonable basis for the County's concern as to whether it could or should rely on her January 6, 1997 conclusions. Dr. Prchal's follow-up response of January 11, 1997 to the County's questions indicated she had the same concern about the Grievant working on a road surface as she did
about his working on a concrete floor. She also responded that it would help the Grievant if he could walk around periodically when he had to be on his feet longer than 30 minutes and that he should be off his feet for 30 minutes after standing 30 minutes before he stood again. Presumably, the Grievant could walk around periodically in the Shop and he was permitted to sit and rest when he felt the need to do so. Dr. Prchal also indicated the Grievant could attempt to drive a truck with a clutch, however, she did not explain why she had changed her mind in that regard until her letter of January 27, 1997, when she indicated her latest conclusions were based on what the Grievant had told her. While the Grievant did drive the manual transmission truck in mid-January and plowed snow on January 25 and 26, he did complain of soreness in the muscle of his upper left leg. Although not his knee, it is not clear whether that soreness was or was not related to his knee problems. It does not appear from Dr. Prchal's January 27, 1997 letter that he had advised her about the soreness in his upper leg from the plowing. Dr. Prchal's letter of January 27, 1997 indicates that she was lifting the restriction on the Grievant's driving a truck with a clutch based on his having told her that he had done so in the past week without difficulty, but continued to have increased pain and stiffness in the knee from working on the Shop's concrete floor. She placed a permanent restriction on the Grievant's standing on a hard surface, such as a concrete floor or road for more than 30 minutes at a time, and after doing so, he would have to be off his feet for at least 30 minutes before he could stand on a hard surface again. Unlike the Grievant, Dr. Prchal did not distinguish between standing on a concrete floor and a road surface as far as the restriction on the Grievant's standing on a hard surface. At this point, the County still had a reasonable basis for concern regarding the Grievant's ability to perform the functions of a Patrolman without exacerbating his knee problems. The Grievant's own willingness to live with the pain and risk further injury to his knee does not change that. Further, those restrictions were more readily accommodated in the more controlled environment of the Shop than out on the highway or work gangs. The record does indicate that the Grievant's maintenance duties have included changing tires out in the field, and at times, climbing a ladder in order to inspect roof work being done. Still, those duties do not generally occur on a daily basis, whereas as a Patrolman, the Grievant would have been required to work outside on hard surfaces and uneven surfaces as part of his regular duties. Therefore, the County was not acting unreasonably or arbitrarily at that point in removing the Grievant from his Patrolman position and placing him in the Maintenance position in order to avoid further injury to his knee.
Given the foregoing, when the vacancies were posted in the Section 4 and Section 11 Patrolman positions on February 13, 1997 and the Grievant applied for them, the County had a reasonable basis for having another doctor examine the Grievant. Dr. Suster had seen the Grievant for his knee in late 1995 and at the County's request saw the Grievant in mid-February of 1997. Dr. Suster gave a detailed report of his findings and concluded:
As far as permanent work restrictions are concerned, put very simply, Mr. Markgraf's left knee is not normal although he has reached a healing plateau. Biomechanically his left knee is not normal. He has range of motion restrictions, both in extension and in flexion. Therefore, he will be subject to the left knee pain exacerbations/temporary aggravations. Depending on the frequency of use of the knee and weight bearing on the knee, it is my opinion that most of Mr. Markgraf's future difficulties with regard to the left knee would be secondary to time spent weight bearing through the left lower extremity, and the type of surface he will be walking on. His examination reveals that he has no problems moving the left knee throughout its restricted range of motion from 15 degrees of extension through the limited arc of flexion of 130 degrees. Operating a clutch will not demand that he operate the knee outside of this restriction. I, therefore, would not limit him to driving a truck with a clutch mechanism. However, with regard to standing and walking, if he is having pain, he should be allowed to rest. If he is not having any pain, he should be allowed to continue his duties in the usual fashion. Finally, with regard to future medical treatment, it is very possible Mr. Markgraf may suffer again temporary aggravations from time to time with increased pain and swelling of the left knee which may require any or all of the following: Prolonged rest, oral medications or arthrocentesis of the left knee/corticosteroid injection. Unfortunately, the only way to know for sure how frequent these interventions or treatments may be required is to give Mr. Markgraf a return to work trial.
Dr. Suster's report was hardly a ringing endorsement of the Grievant's ability to work as a Patrolman without aggravating his knee problem. While Dr. Suster's report seemingly removed the restriction on driving a truck with a clutch, the report states that the Grievant would be subject to pain exacerbation/temporary aggravation regarding his left knee and it noted future problems would depend on time spent weight bearing on the knee and the "type of surface" he would be walking on, and suggested that he should be allowed to rest if he was experiencing pain with standing and walking. The County asked Dr. Suster to clarify what permanent work restrictions should be placed on the Grievant, and he gave the following clarification by his letter of February 25, 1997,
"There should be no standing nor ambulation more than 20 minutes at a time and he should avoid all uneven surfaces."
At that point, driving the truck with a clutch could not reasonably be considered a problem by the County, however, those Patrolman duties that require standing or walking on the road surface, shoulders, ditches, etc., were the type of duties the Grievant should avoid according to Dr. Suster. It was not unreasonable of the County, at that point, to continue to
view the Grievant as unable to perform those functions of a Patrolman that require walking or standing on hard surfaces and uneven surfaces without a higher than usual degree of risk of further injury to his knee, given Dr. Suster's permanent restrictions, as well as Dr. Prchal's permanent restriction on standing on a hard surface for more than 30 minutes at a time. Again, those restrictions were more readily accommodated in the more controlled environment of the Shop than out on the highway. Therefore, the County did not violate the Agreement when it refused to grant the Grievant the Section 4 or Section 11 Patrolman positions.
The parties continued to attempt to resolve the grievances and both parties have cited and relied upon subsequent medical opinions the Union, Dr. Prchal's June 2, 1997 opinion, and the County, Dr. Mayr's June 26, 1997 opinion. A comparison of those reports reveals the different perceptions of those physicians. Beginning with her January 6, 1997 report, it is evident that Dr. Prchal's concern was with regard to what activities did nor did not cause the Grievant pain; those that did not, he could do; those that did, he should avoid or minimize. Her conclusions went to what the Grievant was physically able to do without pain or minimal discomfort. In reaching her conclusions in that regard, she understandably relied upon what the Grievant told her. On the other hand, Dr. Mayr, and earlier, Dr. Suster, were concerned more with what activities would or would not aggravate the Grievant's knee problem or possibly result in reinjuring the knee. It appears that these differing perspectives, which reflect the perspectives of the parties as well, are what is responsible for this dispute, i.e., the Grievant felt he could do the work of a Patrolman without pain in his knee or within tolerable limits, and was willing to take his chances on aggravating or reinjuring his knee, while the County's concern has been that working as a Patrolman would create an unreasonably high level of risk in those latter regards.
The Grievant's desire to return to his preferred job with more overtime opportunities is understandable, and it is obvious from the record that he was doing what he could to get his knee back into shape to where he could do his old job. From the County's perspective, however, the Grievant's knee injury in May of 1995 had resulted in two knee operations, his being off from work or on light duty for approximately 18 months, and a Worker's Compensation claim settled at 15 percent permanent partial disability. The County had a legitimate basis for concern in avoiding a situation where the Grievant would be likely to reinjure his knee. Dr. Prchal's reports, including her June 2, 1997 report, did not address that concern.
Dr. Prchal's report of June 2, 1997 is similar to her January 27, 1997 report in that it relies primarily on what the Grievant has told her and it does not address the likelihood of reinjury to the knee if he is placed back in the Patrolman position, other than the statement, "Physical examination of his knee does not reveal anything which would cause any specific limitations."" In light of Dr. Suster's detailed report several months earlier in which he
concluded the Grievant "will be subject to left knee pain exacerbations/temporary aggravations", with the time spent weight bearing on his knee and the type of surface he is walking on being the primary factors, it was not unreasonable for the County to seek a third opinion at that point.
While the Union would infer a darker motive for the County's seeking Dr. Mayr's opinion in June of 1997, there is nothing in the record to support such an inference. Rather, just as the record indicates that the Grievant did what he could to return to work, it also indicates that the County made a reasonable effort to accommodate his work restrictions and to place him in a position that would not reduce his rate of pay and would not place him at unreasonable risk of reinjury. Coopman testified he considers the Grievant to be a good employe, and there is no motive evident from the record for the County not wanting to return the Grievant to the Patrolman position other than avoiding the risk of reinjury to his knee.
Given his awareness of Patrolman position's functions based on his previous involvement in developing job profiles for the Highway Department, Dr. Mayr's medical opinion as to the Grievant's ability to perform those functions without undue risk of reinjury to his knee would appear to be quite relevant. It is also noted that Dr. Mayr is certified in "occupational medicine". After examining the Grievant, reviewing the reports of Dr. Prchal and Dr. Suster, and reviewing the job profile for the Patrolman position, Dr. Mayr stated that his major concern regarding the Grievant working in the Patrolman position was the knee's stability on uneven surfaces. Dr. Mayr concluded that the Grievant was not "physically qualified to perform the full dimension of required tasks" for the Patrolman position due to the requirement that he avoid uneven work surfaces. He further advised that, "I feel the most prudent course would be to avoid uneven work surfaces. I would maintain an option for rest after 20-30 minutes of continued standing or walking, and minimize ladder or stair climbing."
Having reviewed Dr. Mayr's report that concluded that the Grievant continued to be at risk of aggravating or reinjuring his knee if he performed the full range of Patrolman functions, it continued to be reasonable for the County to consider the Grievant physically unqualified for a Patrolman position. It is also noteworthy that the County remained open to the possibility that the Grievant's knee could, at some point, improve to the extent that he would be able to perform all of the functions of Patrolman without an unreasonably high risk of reinjuring his knee. It appears from the record that point did not come until December of 1997, after the parties agreed to have Dr. Prchal reexamine the Grievant and have a Cybex test performed on his knee.
In sum, it is concluded that the County could reasonably conclude from Dr. Suster's and Dr. Mayr's reports and the work restrictions they placed on the Grievant that he did not have the physical ability to perform all of the essential functions of a Patrolman in February, 1997 and thereafter, without an unreasonable degree of risk of reinjury or further injury to his
knee. As the County asserts, it should not be required to place an employe at risk of further injury or reinjury even if the employe is willing to live with that risk, as it is the County that is responsible for the well-being of its employes on the job and it is the County that is financially liable for injuries to its employes on the job. Thus, it is concluded that the County did not violate the Agreement when it did not grant the Grievant the Section 4 or Section 11 Patrolman positions.
Based upon the foregoing, the evidence, and the arguments of the parties, the undersigned makes and issues the following
The grievances are denied.
Dated at Madison, Wisconsin this 8th day of March, 1999.
David E. Shaw, Arbitrator