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Hejda v. Bell Container Corp.

Superior Court of New Jersey, Appellate Division

May 9, 2017

BRIAN HEJDA, Plaintiff-Appellant,
v.
BELL CONTAINER CORPORATION, Defendant-Respondent.

          Argued September 14, 2016

         On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4179-14 .

          John P. Brennan, Jr. argued the cause for appellant.

          Jamie S. Felsen (Milman Labuda Law Group, PLLC) of the New York bar, admitted pro hac vice, argued the cause for respondent (Milman Labuda Law Group, PLLC, attorneys; Mr. Felsen, Netanel Newberger, and Robert F. Milman, of the New York bar, admitted pro hac, on the briefs).

          Deborah L. Mains argued the cause for amicus curiae New Jersey Association for Justice (Costello & Mains, LLC, attorneys; Ms. Mains, on the brief).

          Before Judges Messano, Espinosa and Guadagno.

          OPINION

          ESPINOSA, J.A.D.

         In Puglia v. Elk Pipeline, Inc., 226 N.J. 258 (2016), our Supreme Court applied principles the United States Supreme Court clarified in Hawaiian Airlines v. Norris, 512 U.S. 246 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), to conclude that an employee's state whistleblower claim was not pre-empted by § 301 of the Labor Management and Relations Act (LMRA), 29 U.S.C.A. 185(a). This appeal presents the question whether an employee-union member's disability discrimination claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and retaliatory discharge claim under the Workers' Compensation Law (WCL), N.J.S.A. 34:15-1 to -128.5, are pre-empted by § 301. We conclude the claims as asserted are not pre-empted because they do not require interpretation of any provision of the collective bargaining agreement (CBA) between the union and employer.

         I.

         A.

         Plaintiff Brian Hejda, a member of Teamsters Local Union 813, was employed as a commercial truck (CDL) driver by defendant Bell Container Corp. when he suffered a workplace injury to his knee on August 22, 2012. A physician's assistant examined him at Bell's request and referred him for an MRI and six physical therapy sessions.[1] Hejda was cleared to return to work that day with the following restrictions: "No squatting and/or kneeling, " "Must wear knee brace, " and "No climbing stairs or ladders." The report also noted, "NO WORK IF NO LIGHT DUTY." Hejda averred that, despite these restrictions, Bell's safety director asked him to continue driving. Hejda refused, orally demanded workers' compensation, and left for home.

         After follow-up visits on September 21, 2012 and October 5, 2012, physician reports cleared Hejda to return to work immediately with the same restrictions, adding he was "[u]nable to drive company vehicle." Hejda asserted Bell advised him that no light duty work was available.

         In October and November 2012, Dr. Toby B. Husserl, an orthopedic specialist, examined Hejda's knee and reviewed his MRI results.[2] He concluded Hejda required surgery and, without it, Hejda was not "safe for his work as a tractor-trailer driver and would be best sedentary." Although he cleared Hejda to return to work in November 2012, Dr. Husserl included the restriction that Hejda be limited to "Sedentary work (primarily sitting), " and perform "NO COMMERCIAL DRIVING."

         On November 20, 2012, Hejda filed a workers' compensation claim with the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation (NJDOL). In its answer, Bell denied Hejda "sustained a disabling injury while in the course and scope of his/her employment with [Bell]."

         In February 2013, Hejda consulted Dr. Mark Seckler, an orthopedic specialist. Dr. Seckler agreed with Dr. Husserl that arthroscopic surgery was "the treatment of choice" and that, despite Hejda's claim to be "absolutely asymptomatic, " such surgery was inevitable. Nevertheless, he cleared Hejda to return to work on February 7, 2013, with full duty and no restrictions.

         Hejda reported to work every day during the week of February 11-15, 2013, but was not given much to do. When he reported to work the following week, he was told by Bell to leave.

         B.

         On February 20, 2013, Bell sent a letter to the union explaining that before Hejda could return to work, he had to be recertified pursuant to the Department of Transportation (DOT) Federal Motor Carrier Safety Regulation, 49 C.F.R. § 391.45(c). That regulation requires "[a]ny driver whose ability to perform his/her normal duties has been impaired by a physical or mental injury or disease" to be "medically examined and certified in accordance with [49 C.F.R.]§ 391.43 as physically qualified to operate a commercial motor vehicle."

         49 C.F.R. § 391.43(a) requires that the physical examination "be performed by a medical examiner listed on the National Registry of Certified Medical Examiners." In addition, medical examiners must:

(1) Be knowledgeable of the specific physical and mental demands associated with operating a commercial motor vehicle and the requirements of this subpart, including the medical advisory criteria prepared by the [Federal Motor Carrier Safety Administration] as guidelines to aid the medical examiner in making the qualification determination; and
(2) Be proficient in the use of and use the medical protocols necessary to adequately perform the medical examination required by this section.

[49 C.F.R. § 391.43(c).]

         The results of the medical examination must be recorded on a specified Medical Examination Report Form, MCSA-5875, set forth in the regulation. 4 9 C.F.R. § 391.43(f). That form requires the driver to complete a "Health History, " which must be reviewed and discussed with the physician.

         In its letter to the union, Bell represented it would contact Hejda to schedule the recertification. Hejda declined to submit to the scheduled independent medical examination.

         C.

         Pursuant to the terms of the CBA, the union filed a grievance against Bell in February 2013, alleging violations of Articles 2 (wages), 4 (hours), 5 (overtime), 19 (non-discrimination) and 20 (seniority) of the CBA for "failure to schedule [Hejda] to work after doctor's release." The remedy requested was payment of "all lost wages and benefits as well as schedule to work immediately." The grievance arbitration was conducted on April 5, 2013.

         On April 11, 2013, Hejda obtained a medical certificate from Dr. Alexander Goldberg, a family physician.[3] On the form, Hejda certified he had provided "complete and true" information and acknowledged the examination and certification could be invalidated by "inaccurate, false or missing information." However, he reported he had no medical history of issues relating to an "impaired . . . leg." Dr. Goldberg's comments on the form reflect no discussion of Hejda's knee injury. Dr. Goldberg executed the Medical Examiner's Certificate and sent a copy to Bell.

         Bell asked Dr. Goldberg to confirm he considered the evaluations made by Dr. Husserl and Dr. Seckler. Dr. Goldberg wrote a letter to Hejda, acknowledging he knew about Hejda's work injury and subsequent clearance to return to work, and reiterated that Hejda "meets the standards in 49 [C.F.R. §] 391.41; [and is] qualified for 2 year certificate." Bell accused Hejda of obtaining the certificate from Dr. Goldberg "under false pretenses" by failing to inform him of his knee injury or provide him with the earlier evaluations.

         In July 2013, the arbitrator issued an award and opinion, denying the union's grievance. The issue arbitrated was "[w]hether the Employer's refusal to return the Grievant to his former position upon Dr. Seckler's letter violated the [CBA] or applicable [DOT] regulations, and, if so, what shall the remedy [be]?" The arbitrator identified the applicable contract section as Article 32, which addresses the employer's rights.[4]

         Bell submitted it had "just cause"[5] for refusing to reinstate Hejda as a CDL driver until he was certified in compliance with 49 C.F.R. § 391.43.[6] The union argued that Hejda should be reinstated because Dr. ...


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