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Amalgamated Transit Union3/28/2003
CERTIFIED FOR PUBLICATION
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.
FACTUAL 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 " 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,
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