By Anthony Rice
I
n City of Marengo, Arbitrator Stanley Kravit found the termination of a police officer to be without just cause when the City improperly ordered the officer to return to work while she was recovering from an injury. Kravit rejected the City’s claim that it was “insubordination” to refuse to return to work once the City’s hired physician found her fit when this finding was against the weight of the evidence that she was, in fact, unable to safely work. Kravitt ruled that the City violated the due process requirement—that all relevant evidence be fairly considered before discharge.
The Officer was injured in an on-duty accident which occurred when an obese pedestrian in a motorized wheelchair rolled over her left foot as she was attempting to assist him. The weight of the pedestrian and wheelchair “may have approached 500 pounds.” As a result of the injury, the Officer missed a considerable amount of work. However, in every absence, the Officer provided a doctor’s note stating she was unable to return to duty.
The Officer’s attorney inevitably filed for workers’ compensation. The City’s workers’ compensation administrator sent the Officer to a doctor handpicked by the City. Predictably, after 15 minutes with the Officer, the City’s doctor concluded “[s]he can be at work, full duty, with no restrictions from a neurologic standpoint from any alleged injuries . . .” Pursuant to the findings of the City’s doctor, the Officer was ordered back to work on pain, in fear of termination.
The arbitrator relied on precedent to help reconcile the competing medical conclusions:
Where there were differences between a company’s and grievant’s doctors as to when the grievant could safely return, Arbitrator Platt stated that “it would seem in all fairness to the employee whose job is at stake, an effort would be made to reconcile the differences.” In the absence of such effort, Platt held that the grievant had “a legitimate reason for her absence.”
Compelling precedent aside, the arbitrator found the conclusions made by the City’s doctor to be unpersuasive because that doctor saw the Officer “seven months after the incident, for one limited examination.” On the other hand, the Officer “is credible, especially since, by maintaining her unfitness, she lost her job, her health care coverage and, as she testified, her house.”
I find that the Grievant was not guilty of insubordination which occurs when an employee violates a lawful order which does not incur risk of one’s safety or health. The charge is undermined by the due process requirement that all relevant evidence be fairly considered before discharge, as well as by Dr. Levin’s flawed conclusions, upon which the City depended.
