On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2360-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 14, 2009
Before Judges Alvarez and Fall.
Plaintiff, New Jersey Transit Corporation (NJT), appeals from a final order entered in the Law Division on May 9, 2008, which dismissed with prejudice its verified complaint seeking judgment vacating an Award of Arbitration in favor of defendant, New Jersey Transit Police Superior Officers Fraternal Order of Police, Lodge 37 (FOP), and confirmed that Award in accordance with N.J.S.A. 2A:24-7 (permitting a party to an arbitration involving collective bargaining agreements to commence a summary action in the Law Division for the confirmation of the arbitration award or its vacation, modification or correction). We affirm.
The following factual and procedural history is relevant to our consideration of the issues presented in this appeal. NJT is a State agency created pursuant to N.J.S.A. 27:25-1 to -34. The NJT Police Department is a division of NJT that has "police and security responsibilities over all locations and services owned, operated or managed by [NJT] and its subsidiaries." N.J.S.A. 27:25-15.1(a). The FOP is the exclusive representative for all superior officers below the rank of captain, including sergeants and lieutenants. N.J.S.A. 34:13A-3(e); N.J.S.A. 34:13A-5.3. NJT and the FOP entered into a comprehensive collective bargaining agreement covering the period July 1, 2001 through June 30, 2006. Article V of the agreement, entitled "Physical Examinations," provides in pertinent part:
SECTION 2. (a) When a SO [Superior Officer] has been removed from his position on account of his physical or mental condition and the Union desires the question of his physical or mental fitness to be decided before he/she is permanently removed from his position, the case shall be handled in the following manner:
(b) The President of the Union shall bring the case to the attention of the Director-Labor Relations. NJT and the employee shall each select a doctor (physician), each notifying the other of the name and address of the doctor (physician) selected. The two doctors (physicians) thus selected shall confer and appoint a third doctor (physician).
(c) Such Board of Doctors shall then fix a time and place for the employee to appear for a physical examination. After completion of the examination, they shall make a full report of their finding, sending copies of those findings to the Director-Labor Relations, the NJT Medical Director and the employee.
(d) A decision of the majority of doctors on the board as to the physical fitness of the employee to resume duty at the time examined shall be final and binding on the parties, but this does not mean that a change in the employee's physical condition shall preclude a re-examination at a later date.
(e) The neutral physician selected for such board shall be a specialist in the disease or disability from which the SO is alleged to be suffering.
On October 8, 2002, Sergeant Gerard Robson, a NJT police officer and member of the FOP, was on duty. While responding to a fare dispute involving an unruly passenger, Sergeant Robson tripped on a piece of PVC pipe lying on the rail tracks and fell, causing severe and debilitating pain in his left hip. He was taken to Jersey City Medical Center where he was treated and released. Robson reported the incident to his supervising Lieutenant; submitted required paperwork to NJT's Medical Services Division documenting the injury and incident; and filed a claim for workers' compensation benefits.
Following his report of the incident, Robson was examined by Dr. Charles Rowe of NJT's Medical Services Division, who referred him for evaluation and treatment to Dr. Mark Zawadsky of University Orthopedics in New Brunswick. After undergoing treatment and diagnostic testing, Dr. Zawadsky determined that Robson was suffering from avascular necrosis of his left femoral head, causing deterioration of the hip joint. On April 4, 2003, Robson underwent hip replacement surgery, authorized by NJT and performed by Dr. Zawadsky.
Following a course of rehabilitation and treatment Dr. Zawadsky issued a report to NJT dated July 3, 2003, releasing Robson from medical care and authorizing his return to work as of July 14, 2003. He also completed and submitted a form on that date that indicated Robson had not yet fully healed from the surgical procedure.*fn1 In response, Lois McFadden, Senior Nurse of NJT's Medical Services Division, and Manager of Clinical Services for NJT,*fn2 sent a letter to Dr. Zawadsky dated July 7, 2003, stating:
Enclosed is a job description and list of functions tested on a RTW [Return To Work] agility test.
Can Gerard Robson take this test as a part of his RTW evaluation? Is he a greater risk, than the general population, for injury to himself while working as a policeman; and if so, what is that risk?
We will await your response before scheduling the agility test. Ms. McFadden testified that her Division had been orally instructed by the Director of the NJT Police Department that when a police officer was absent from work for a period in excess of ninety (90) days, that officer would be required to satisfactorily perform an agility test prior to his or her return to duty as a police officer; there was, however, no written policy to that effect. Ms. McFadden explained that among the tasks required by the agility test were a wall climb; trigger pull; agility run; horizontal jump; and dummy drag.*fn3 In reply to Ms. McFadden's July 7, 2003 letter and its enclosures, Dr. Zawadsky issued a report to the Medical Service Division, dated July 22, 2003, stating:
In regard to this patient, he underwent a left total hip arthroplasty on 4/07/03, for a diagnosis of avascular necrosis of the left hip. He has recovered nicely from this procedure and has regained excellent mobility. He is now planning on returning to work. I received your letter dated July 7, 2003, with questions about his return to work. His limitations in terms of his left total hip replacement require that he undergo no activities that require running or jumping. He needs to protect his left hip from extremes of flexion and internal rotation. He is otherwise able to engage in full normal activities and is able to stand and walk without limitations except for activity tolerances. His major risk in terms of activity would be dislocation or fracture.
If I can be of any further assistance in the future, please do not hesitate to contact me.
Upon review of Dr. Zawadsky's report, Dr. Rowe issued a document entitled "Request For Medical Services," dated August 12, 2003, in which he concluded that Robson had reached Maximum Medical Improvement (MMI), and was "not medically qualified to work as a policeman[,]" but was medically qualified to assume the duties of a position in which there was "no running or jumping, no extremes of flexion and internal rotation." NJT managerial personnel then orally informed Robson that following exhaustion of all his accumulated sick and other types of leave, he would be terminated as a police officer;*fn4 that he could apply for a disability pension from the New Jersey Police and Firemen's Retirement System (PFRS); and that he could be considered for a position with NJT as a communication dispatcher at a significantly-lower rate of compensation. Subsequently, Robson applied for the dispatcher position and filed a claim with PFRS for a disability pension. By letter dated September 5, 2003, NJT offered Robson the position of Communication Dispatcher at an annualized gross salary of $36,000, which offer was accepted by him on September 15, 2003.*fn5 Meanwhile, the FOP had filed a grievance on behalf of Robson on August 20, 2003, contending:
The Employer, New Jersey Transit, has violated the above listed provisions of the Collective Bargaining Agreement (CBA),*fn6 by failing to return Sgt. Robson to full duty, requiring him to utilize personal sick leave for a duty-related injury, and discriminating against him by applying and improperly implemented, non-prospective, an incompletely conceived physical fitness policy. The policy in question was implemented without referral to the Standing Committee for deliberation and discussion and does not define any accommodations for age and other typically necessary considerations. Aside from the policy's unreasonable standards, [its] implementation negatively impacts the level of retained ...