APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. Affirmed with directions. (Super. Ct. No. INC085082).
The opinion of the court was delivered by: Hollenhorst Acting P.J.
CERTIFIED FOR PUBLICATION
Plaintiff SunLine Transit Agency (SunLine) appeals from a judgment entered after the trial court denied SunLine's petition to vacate a contractual arbitration award, and granted a petition to confirm the award, brought by SunLine's employee, Rafael Navarette (Navarette), and Amalgamated Transit Union, Local 1277 (the Union), referred to collectively as respondents. In the award, the arbitrator found that SunLine terminated Navarette without good cause in violation of the collective bargaining agreement, also known as a memorandum of understanding (the MOU). SunLine was thus ordered to reinstate Navarrete as a motor coach operator (bus driver), with back pay, less interim earnings and vocational rehabilitation compensation.
SunLine contends the arbitration award should be vacated on the grounds the award contravenes public policy under the Workers' Compensation Act (WCA) (Lab. Code, §§ 3600, et seq.) and the arbitrator exceeded his powers under the MOU (Code Civ. Proc., § 1286.2, subd. (a)(4)).*fn1 SunLine also argues that respondents were estopped from using arbitration as a competing forum to contest workers' compensation findings and remedies.
We conclude the trial court properly denied SunLine's motion to vacate or modify the arbitration award and appropriately confirmed the award, as corrected. The award neither invades the exclusive jurisdiction of the Workers' Compensation Appeals Board (WCAB) nor was entered in excess of the arbitrator's powers under the MOU.
The Union's cross-appeal challenges the trial court's insertion in the judgment of language declaring that Navarrete "is judicially estopped later to claim continuing permanent disability benefits in the pending Workers' Compensation case." The Union contends the trial court did not have authority to issue a judgment containing this additional language, which was not in conformity with the arbitration award. We agree, and order the language stricken from the judgment. In all other regards, the judgment confirming the arbitration award, as corrected, is affirmed.
1. Facts and Procedural Background
Navarrete began working for SunLine as a bus driver in April 1997. During his employment with SunLine, Navarrete sustained numerous industrial injuries and submitted six separate workers' compensation claims, including three in 1999, one in 2002 and two in 2003.
On February 19, 2006, Navarrete was injured while conducting a pretrip inspection of his bus. Navarrete sustained injuries to his head, neck, back, shoulders, right wrist, right leg and right ankle. As a consequence, Navarrete was placed on an industrial leave and filed a workers' compensation claim.
In September 2006, Navarrete and SunLine agreed to designate Dr. Richard I. Woods (Dr. Woods) as an agreed medical examiner (AME), who was to examine Navarrete and evaluate his disability and need for medical care under the WCA.
In November 2007, Dr. Woods examined Navarette and reviewed his medical records related to his injuries sustained on February 19, 2006, as well as Navarrete's medical records related to his previous industrial injuries and workers' compensation claims.
On February 15, 2008, Navarrete's treating physician, Dr. Douglas J. Roger (Dr. Roger), gave Navarrete a "return to work" slip, which stated Navarrete was temporarily partially disabled and able to return to modified work as a bus driver on February 18, 2008. The return-to-work slip included a restriction against lifting more than 30 pounds. Because of this restriction, SunLine refused to allow Navarrete to return to work. SunLine notified Navarrete that "as of February 18, 2008, per the MOU Article G-18: Section 3 (k) your employment with SunLine Transit Agency terminates."
The MOU mentioned in the notice of termination referred to a collective bargaining agreement, which SunLine and its employees' Union entered into, effective from April 1, 2006, through March 31, 2009. The MOU contained written terms and conditions of employment relating to SunLine's employees, including its bus drivers. The MOU specified employee grievance procedures and provided for arbitration in the event a dispute arose concerning interpretation or application of the MOU terms.
Article G-18, section 3 k) of the MOU, cited in SunLine's employment termination notice as the ground for terminating Navarrete, stated: "Employees shall lose all seniority rights and employment shall cease for any of the following reasons: [¶]... [¶] k) If an employee is absent from work for an industrial illness or injury in excess of two (2) years." As of February 19, 2008, Navarrete was absent from work at least two years due to his industrial injury sustained on February 19, 2006.
When SunLine and the Union met on February 19, 2008, to discuss Navarrete's employment termination grievance, SunLine agreed to send Dr. Roger a copy of Navarrete's job description, along with an inquiry as to whether Navarrete would be able to perform the essential duties of his job based on the job description. In return, the Union agreed not to appeal to the second grievance level under the MOU, until Dr. Roger responded to the inquiry. Navarrete's job description, which SunLine provided Dr. Roger, included the following:
"Primary Duties, Responsibilities, Job Outcomes
"4. Assists passengers as necessary and deals courteously and effectively with passengers, the public and fellow employees at all times.
"5. Calls out all major intersections as prescribed by ADA and company policies; assists special passengers as instructed. [¶]... [¶]
"7. Performs related duties as necessary or special assignments as directed."
Navarrete's job description also included the following:
"Walking, reading, writing, bending, stooping, speaking, hearing and repetitive motion of wrist, hands, leg neck and head; prolonged sitting.
"Ability to operate wheelchair lift and maneuver wheelchairs and their vehicles used by disabled to accommodate."
There were no lifting requirements listed in the job description.
In response to SunLine's inquiry regarding Navarrete's ability to return to work, Dr. Roger stated, "OK to return to work as a motor coach operator."
By letter dated February 28, 2008, SunLine notified Navarette that Dr. Roger confirmed that the same work restrictions applied and therefore SunLine's previous decision to terminate Navarette based on MOU article G-18, section 3 k) still "stands." SunLine further notified Navarrete that a grievance hearing was set pursuant to the MOU, during which Navarrete could present his case.
On March 11, 2008, Dr. Roger provided a disability status report confirming that Navarrete was able to return to his job as a bus driver on March 11, 2008, without any restrictions. Dr. Roger noted he was awaiting the AME report.
Meanwhile, on March 5, 2008, Dr. Woods completed the AME report. The report was sent to the parties on March 13, 2008. Dr. Woods concluded in the report that Navarrete had a permanent disability and his condition was stable and not likely to improve. Dr. Woods further concluded that, based on Navarrete's stated job duties and due to accommodations and work restrictions currently imposed, Navarrete was not ...