Medical Evidence in Arbitration: Aspects and Dilemmas - Dispute Resolution Journal - Vol. 39, No. 3
Andrea Wilson is a labor arbitrator based in New York City. The author wishes to acknowledge the contributions to this article by Mollie H. Bowers, Rivona Ehrenreicb, Jacob D. Hyman, and Herbert L Marx. Ir.
Originally from Dispute Resolution Journal
Issues involving medical evidence often present difficult problems for arbitrators. Accepted approaches for dealing with some aspects are broadly recognized, and general guidelines for evaluating medical testimony have evolved over the years. These include recognition of an employer's right to request a doctor's examination, the need for familiarity with job requirements, and the need for scrutiny of a witness' background, training, and relationship to the parties.
Conflicting medical evidence and cases where psychological and emotional factors play a role have proved more difficult. Use of a neutral physician is often resorted to in such cases. This article reviews how arbitrators have approached these issues and confronted their responsibility.
How do arbitrators deal with conflicting medical evidence? An employee's fitness and ability to work is a frequent issue in arbitration. Often a worker maintains that he or she is ready and able to return to work, while the employer claims this is not the case. Or the reverse arises. The employer maintains the employee is able to resume working while the employee claims to be disabled.
A DOCTOR'S EXAMINATION
An employer's right to request an examination by a doctor in such cases is rarely questioned. The employer assumes legal and contractual liability for possible new injury or disability caused by the employee's return and thus has a legitimate concern. Arbitrators therefore have consistently held that management has a right, unless restricted by the agreement, to require employees to have a physical examination where the right is reasonably exercised under proper circumstances.'