”The decision to arbitrate has significant consequences and should be made only after careful consideration of many issues. The parties should consider the type of dispute subject to arbitration, the type of arbitration proposed, and the method of selection of the arbitrators. The parties should further consider the nature of the relief sought and whether appellate rights are significant.” See: 1 Alternative Dispute Resolution Practice Guide §3:21.
Before filing an arbitration claim or demand, carefully review the rules of the arbitration organization. The rules affect the arbitration process, including the filing of the claim. See: 1 Alternative Dispute Resolution Practice Guide §8:1.
Arbitration of a multiple concussion injury causing a loss of employment can be complex. In City of Center Line, Employer and Michigan AFSCME Council 25, LOCAL 1103, Union, 2010 WL 6032774 (E.D.Mich.), the Grievant in 2008 was advised that he had been terminated for exceeding 26 weeks of a long-term disability. The Sick Leave Policy in the city’s collective bargaining agreement provided, “Employees unable to return to work in a full-time capacity without restrictions after the first 26 weeks of long-term disability leave shall be considered to have their employment terminated.” The termination was predicated on the report received by an Independent Neuropsychological Evaluation. The report concluded that the Grievant was unable to work. The Grievant filed a union grievance requesting reinstatement and a make whole remedy. An arbitration hearing under the rules of the American Arbitration Association was held in 2009.
The facts of the case were the Grievant fell off his bicycle and broke his clavicle in 2007. He also had at least two concussions with significant post-concussion symptoms. One was associated with a motor vehicle accident in 1991 and the other with the bicycle accident in August 2007.
Upon his return to work following shoulder surgery, he was advised to undergo a return-to-work physical. Next, he was directed to be examined by a neurologist who noted in a report that the Grievant had hydrocephalus, and recommended that he be psychometrically tested to determine his ability to return to work. The Grievant’s CT scan of the brain revealed “marked hydrocephalus.” Hydrocephalus is a condition in which spinal fluid adjacent to the brain is not properly absorbed. This results in pressure on the nerves of the brain, which can produce complications.
The neurologist commented that in view of the Grievant's status with hydrocephalus, and to determine whether he can or cannot competently return to his public works job at the City of Center Line, it was essential that the patient undergo psychometric testing. Further testing revealed the Grievant's symptomatologics reflected some slowing of memory which could be related to a combination of underlying factors, the most significant would be the cerebral concussion the patient sustained in 2007; the hydrocephalus could be post traumatic; but the congenital hydrocephalic condition may have predisposed him to a more severe concussion in relationship to the head trauma. Additional testing was recommended:
- An updated CT scan of the brain.
- If hydrocephalus was present, a 72 hour cisternogram.
- An electroencephalographic study.
- Psychometric testing or a more complete assessment of his intellectual capacities.
The neurologist noted the hydrocephalus could be compatible with a decline in cognitive functions.
The Grievant had surgery to place a brain shunt to relieve his hydrocephalus condition in 2008. The physician felt that the Grievant's hydrocephalus raised concerns about his ability to safely operate heavy equipment in his position with the city. The physician found that the most recent test results were consistent with a process of acquired impairment of higher mental abilities with the most prominent problems in new learning involving procedural learning as well as declarative learning and anterograde memory abilities. There also were findings indicative of a mild acquired impairment of higher mental activities, abstract thinking and problem solving skills. The most likely cause for these test results appeared to be the hydrocephalus, which probably had developed to the point where it is affecting the functioning of the medial basal regions of both cerebral hemispheres. Some compromise of the prefrontal lobes was also indicated, but to a much lesser extent than the findings indicative of bilateral medial basal temporal involvement. His prognosis appeared to be guarded as hydrocephalus can cause dementia.
The physician recommended:
- A referral to neurosurgery to determine if additional interventions could ameliorate his symptoms and prevent further deterioration of mental and personality functioning.
- Although his visual-spatial perceptual and attention abilities were probably adequate for safe driving and operation of familiar equipment, his memory, learning and personality disorders raised concerns about safe operation of equipment in the future especially if he was operating new equipment, was having emotional distress while working or had further deterioration of his mental and emotional status.
- Neuropsychological reevaluation as needed to monitor changes in his status and treatment outcomes. Comparison with earlier neuropsychological test results would probably be beneficial in assessing his progress or deterioration.
Another recommendation was made that the Grievant not return to work as an equipment operator because of the persistent visual-spatial perceptual deficits and the memory and learning deficits as well as probable organic personality disorder. All of these deficits raised significant concerns about his ability to safely operate large equipment at work.
Another physician recommended the Grievant be given an opportunity to return to work under supervision and if found to be capable, then to continue his employment, and if found to be in deficit of his abilities then to permanently lay him off on a medical basis.
The Grievant began employment as a Bus Driver/Maintenance Worker in late 2008.
The employer argued, among other allegations, that the Grievant exceeded the allowable 26 weeks of long-term disability leave, and that therefore termination was required by the contract. It was noted that the Grievant had been on short-term and long-term disability for over 26 weeks each, and that he was unable to return to work without restrictions, as required by the contract.
The union argued, among other allegations, that the Grievant should not have been placed on a long-term disability leave for hydrocephalus, but rather should have been on a second short-term disability leave for that condition, following his initial short-term leave for the shoulder injury.
The arbitrator found that because the Grievant did not return to work without restrictions after 26 weeks of a long-term disability leave, termination was required, and the Employer acted appropriately in terminating the Grievant. The Union argued extenuating circumstances. The arbitrator stated, “I have a great deal of sympathy for [the Grievant] and his plight, However, the-Supreme Court-of the United States has made it clear that an arbitrator shall not dispense “his own brand of industrial justice,” and if he does so, his award will be set aside by the courts…[and] the grievance procedure makes it clear that an arbitrator's decision is subject to review by the courts in the event that the arbitrator fails to follow the contract…Therefore, I have no choice but to uphold the termination required by [the contract]…[and] the grievance is denied.”
See: City of Center Line, Employer and Michigan AFSCME Council 25, LOCAL 1103, Union, 2010 WL 6032774 (E.D.Mich.).
For a comprehensive discussion of arbitration see: 1 Alternative Dispute Resolution Practice Guide §§2:1 to 22:28.
For a comprehensive discussion of mediation see: 1 Alternative Dispute Resolution Practice Guide §§23:1 to 35:7.