The article is no longer available free, but some relevant legal decisions are: (and maybe more -- I don't claim to have made an exhaustive search). What's most interesting to me is what happened to the Third Doctor Procedure contained in the National Master, Article 20:
"Section 3. Third Doctor Procedure The Employer reserves the right to select its own medical examiner or doctor and the Union may, if it believes an injustice has been done an employee, have said employee re-examined at the employee?s expense. If the two (2) doctors disagree, the Employer and the Union shall mutually agree upon a third (3rd) doctor within ten (10) working days, whose decision shall be final and binding on the Employer, the Union and the employee. Neither the Employer nor the Union will attempt to circumvent the decision of the third (3rd) doctor and the expense of the third doctor shall
be equally divided between the Employer and the Union."
Let's see what happens:
"
On February 9, 2004, Dr. Legler[[second company doctor]] examined plaintiff. Plaintiff gave Dr. Legler a copy of the release from Dr. Poppa[[plaintiff's doctor]], but did not discuss with Dr. Legler the results from the FCEs in November and December or Dr. Stechschulte’s [[1st UPS's doctor]] permanent restrictions. Dr. Legler gave plaintiff a work status report which released him to return to work. That same day, Monica Sloan, Kansas District Occupational Health Manager for UPS, contacted Dr. Legler about the work status report. Sloan asked Dr. Legler if he knew that Dr. Stechschulte had placed permanent lifting restrictions on plaintiff. Dr. Legler changed his recommendation and imposed a restriction of “20 lb. overhead lift limit per ortho.” Exhibit Y to Defendant’s Memorandum
(Doc. #89). At the time Dr. Legler spoke with Sloan, and when he revised his recommendation, he did not have a copy of plaintiff’s records from Dr. Stechschulte. Based on these restrictions, however, defendant again refused to let plaintiff return to work."
So, the company doctor says he can't work, his doctor says he can, another company doctor says he can but when UPS tells him that's the wrong decision, he gets back in line.
Now it gets interesting:
On May 21, 2004, Dr. Buck examined plaintiff. Dr. Buck’s report states in part as follows:
Upon examination patient was noted to be a well-developed male with what appeared to be full range of motion on abduction, abduction [sic], and forward flexion. His grip strength: is essentially normal in positions 2 and 3 with 3 efforts each averaging respectively: 2 positions 121.6 lbs. and 3 position 103.3 lbs. This examination was performed on a non-replicating examination without extrapolation over a 9.5 hour day which would alter the above findings. * * *
It should be noted that this employee is carrying restrictions which are permanent of no lifting overhead greater than 20 lbs., maximum 45 lb. chest the [sic] shoulder lift with left upper extremity. These are provided by the orthopedic specialist, Dr. Stechschulte. To substantiate and support the previously noted restrictions was a Functional Capacity Examination performed by Bob Mitchell, PT, on Mr. Jones, dated 12/4/03. It is Mr. Mitchell’s opinion that although the patient with [sic] the ability to perform work in a heavy classification according to the United States for Labor [sic], it does not meet the essential functions of a package car driver UPS, as the job has been previously noted, I would concur with this statement per the findings of the Functional Capacity Examination.
Per the material provided including medical records from Dr. Stechschulte office notes, Dr. Gary Legler’s clinic notes . . ., and the Functional Capacity Examination from Spine Extremity Rehabilitation Center, and Essential Job Functions provided by UPS as a basis for my determination. It is my professional medical opinion that the job essentials its [sic]
UPS are beyond the scope of this client’s permanent restrictions and results provided by the Functional Capacity Examination... Dr. Buck did not perform an FCE because Sloan advised him that one had been performed in December of 2003, that defendant would not pay for another one and that Sloan did not believe another FCE was necessary. Dr. Buck testified that Sloan told him that the union and UPS agreed that he was to base his opinion on plaintiff’s medical records, not on his examination. Dr. Buck also testified that even if he had ordered an FCE, the results would not be sufficient to alter Dr. Stechschulte’s prior lifting restrictions because with Dr. Stechschulte’s expertise and credentials, his restrictions superseded Dr. Buck’s opinion. Defendant therefore again refused to let plaintiff return to work."
Got that? "Dr. Buck did not perform an FCE because Sloan [[Monica Sloan, Kansas District Occupational Health Manager for UPS]] advised him that one had been performed in December of 2003, that defendant [[UPS!]] would not pay for another one and that Sloan did not believe another FCE was necessary. Dr. Buck testified that Sloan told him that the union and UPS agreed that he was to base his opinion on plaintiff’s medical records, not on his eamination" And this clown whose whole purpose for being involved is to provide an independent third opinion is getting his instructions from UPS, not ordering tests that UPS doesn't want to pay (half - the contracts says costs are split between UPS and union) for, and says he wouldn't dream of second-guessing the eminent company doctor. Tilt!
