Chaney v. Providence Health Care

165 Wash.App. 578

267 P.3d 544

Robert CHANEY, Appellant,

v.PROVIDENCE HEALTH CARE d/b/a Sacred Heart Medical Center Children's Hospital, Respondent.

No. 29438–2–III.

Court of Appeals of Washington, Division 3.

Dec. 20, 2011.Reconsideration Denied Jan. 23, 2012.

Steven Craig Lacy, Attorney at Law, Stewart Robert Smith, Lacy & Kane PS, East Wenatchee, WA, for Appellant.

Michael Bradley Love, Workland Witherspoon, Spokane, WA, for Respondent.

SWEENEY, J.

[165 Wash.App. 580] ¶ 1 The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. §§ 2601–2654, and its implementing regulations clearly directs when an employer must return an employee to his job. The triggering event is a return-to-work certification by the employee's physician. Here, the employee provided his physician's return-to-work certification with the caveat “as soon as Employer allows.” We conclude that the certification was sufficient to trigger the employer's obligation to return the employee to work and we therefore reverse the judgment entered on a jury verdict in favor of the employer.

FACTS

¶ 2 Robert (Bob) Chaney worked at Sacred Heart Medical Center & Children's Hospital as an interventional radiologic technologist. Mr. Chaney's wife became ill after she gave birth to their second child in April 2005. Mr. Chaney took FMLA leave to care for her. He missed significant periods of time from work for four to five months before returning to a more normal schedule. By April 2006, he had used up all of his FMLA leave and his wife's condition had not improved. Mr. Chaney began to rely on donated leave from other employees to continue to care for her before receiving further leave under FMLA in January 2007.

¶ 3 Mr. Chaney's supervisor, Marshall Francis, assessed his performance in a 2006 annual performance evaluation. He noted that Mr. Chaney had missed work with FMLA leave, but was “meeting standards” overall:

[Bob's] attendance has been subpar, mostly due to family health issues. This has become an area of concern but hopefully this will improve soon. Also of concern is his relations with fellow workers which need to be addressed and improved. I plan on coaching and mentoring Bob in the coming year with his interaction skills with fellow employees. Bob has the potential to be an outstanding member of the team if these two important issues are resolved.

Ex. P8. Mr. Francis talked with Mr. Chaney at least a dozen times about his excessive absenteeism.

[165 Wash.App. 582] ¶ 4 Mr. Chaney received first and second written warnings in January 2007 after he failed to show up for an on-call procedure and later appeared unfit for duty (he nodded off with a patient). Sacred Heart temporarily suspended Mr. Chaney. Gerry Altermatt is the director of Sacred Heart's radiology department. He called a group together to discuss the incidents with Mr. Chaney. Mr. Chaney explained that he had been deprived of sleep because of his family situation but he, nonetheless, thought he was doing an excellent job. Mr. Altermatt thought otherwise:

It is very difficult to determine when compassion for an employee and their home situations is being taken advantage of. Family health issues have been bothering Bob for over 18 months. His work performance is deteriorating and his attendance is unreliable. He has maxed out his FMLA and is working with HR [Human Resources] to see if he can get additional FMLA leave time. He has no (or very little) PTO [Paid Time Off] or EIT [Extended Illness Time] left. Other staff are donating PTO to him. For awhile that was okay, but now it's beginning to be resented and his peers don't consider him a reliable and productive staff member.

Is our compassion helping or has it become a crutch that Bob relies on and if so, are we “enabling” his behavior?

Ex. P12.

¶ 5 Mr. Altermatt and the group investigating Mr. Chaney imposed a number of conditions on his right to return to work and required that he provide a medical release from his doctor. Mr. Chaney's doctor is Jeffrey Jamison, D.O. Dr. Jamison provided the medical release for Mr. Chaney's return to work on January 12, 2007. It indicated that Mr. Chaney had chronic medical problems that were flaring but Dr. Jamison believed he would be “completely fit for full-time duty in one week.” Ex. P13.

¶ 6 Mr. Chaney's 2007 annual performance evaluation by Sacred Heart again noted that he was missing work due to FMLA leave, but was “meeting standards” overall:

Bob has had a tumultuous year due to family health issues and friction with coworkers as a result. He is on intermittent FMLA and attendance is spotty. When Bob is here he is technically good. He is compassionate with patients and does a good job of getting the work done. He grasps new technology well and is willing to help wherever needed.

Bob needs to work diligently to get his personal life back on track and also needs to work on better relations with peers. I will work with Bob to help realize these goals as soon as possible.

Ex. P20.

¶ 7 From January to June 2007, Mr. Chaney showed signs of fatigue. On one occasion, two nurses noticed that Mr. Chaney had dilated or constricted pupils, glassy or reddened eyes, slurred speech, and a staggering or unsteady gait. He also had difficulty speaking when he attempted to describe to the nurses the three dimensional spin procedure he was about to perform on a patient. The nurses notified Mr. Francis and he consulted with Mr. Altermatt about the concerns. Mr. Francis and Mr. Altermatt ordered that Mr. Chaney submit to a drug test. Sacred Heart placed Mr. Chaney on leave pending the results.

¶ 8 Mr. Chaney tested negative for illicit drugs, but positive for methadone. Mr. Chaney explained that he had a prescription for methadone to treat chronic back pain. Dr. Paula Lantsberger was Sacred Heart's medical review officer. She recommended that Mr. Chaney undergo a fitness-for-duty evaluation or a visit to his doctor to fine-tune his medication. Mr. Chaney visited Dr. Jamison before Sacred Heart's fitness-for-duty evaluation. Dr. Jamison's office sent a letter to Sacred Heart that said Mr. Chaney “can safely perform his duties as an xray/special procedures technologist.” Ex. P25. It appears that Dr. Jamison did not sign this authorization and there is some dispute over whether he authorized the same.

¶ 9 Mr. Chaney then went for his fitness-for-duty examination and evaluation by a physician selected by Sacred Heart, Dr. Royce Van Gerpen. Dr. Van Gerpen specializes in occupational medicine. He asked Mr. Chaney to sign a standard release of information form. Mr. Chaney refused to sign it because he thought that his medical history was privileged and the release went too far; it allowed Sacred Heart access to all of his medical records and history. Dr. Van Gerpen modified the release to allow only “a statement about whether [Mr. Chaney was] fit for duty.” Ex. P32; Report of Proceedings (RP) at 360–61. The examination and evaluation proceeded.

¶ 10 Mr. Chaney reported to Dr. Van Gerpen that he had a long history of chronic back pain and severe anxiety that required treatment with prescription medications. He also brought medical reports from Dr. Jamison's office.

¶ 11 Dr. Van Gerpen concluded that Mr. Chaney should not be released to return to work because Mr. Chaney was not well adjusted to his medications. Dr. Van Gerpen explained that the six to eight different medications Mr. Chaney was taking (Soma, Ambien, Imitrex, Wellbutrin, methadone, Lorazepam, Norco, etc.) “could adversely affect his ability to concentrate and make rapid and appropriate sequential decisions.” Ex. P33. Dr. Van Gerpen also opined that “an individual with this level of medication usage would not be allowed to operate a commercial motor vehicle.” Ex. P33. Dr. Van Gerpen provided a limited release for Mr. Chaney to return to work as a general x-ray technician.

¶ 12 Sacred Heart's human resources department informed Mr. Chaney that it needed more information to better understand Dr. Van Gerpen's restriction. Sacred Heart requested that Mr. Chaney sign a full release for his medical information. He again refused. Sacred Heart concluded that Mr. Chaney's absence from work was due to his health. Sacred Heart then sent him a letter explaining that his time off was being designated as provisional under the FMLA and that benefits were being used as of July 16, 2007. The letter further indicated that his FMLA leave would expire on August 27, 2007 and if he was not released to return to his full duties as an interventional radiologic technician by that date, his position would not be held for him. The letter directed Mr. Chaney to complete the FMLA paperwork and have Dr. Van Gerpen complete the medical certification portion.

¶ 13 Dr. Van Gerpen sent a letter to Sacred Heart and explained that he could not complete the FMLA medical certification because he was not Mr. Chaney's physician. Dr. Jamison completed the certification and reported that Mr. Chaney could return to work but added the phrase “as soon as Employer allows.” Ex. P45.

¶ 14 Sacred Heart did not ask Dr. Jamison to clarify or explain during this process.

¶ 15 Mr. Chaney filled out a request for FMLA leave and indicated that he could return to work immediately. Mr. Chaney returned to Dr. Van Gerpen's office for a follow-up visit on August 23, 2007. He explained that Sacred Heart would not allow him to return to work even as a routine x-ray technician with the restrictions Dr. Van Gerpen imposed. Mr. Chaney reported to Dr. Van Gerpen that he continued to use four to six methadone tablets per day. But he continued to maintain that Sacred Heart did not need to know all of his medical conditions. Dr. Van Gerpen refused to change his opinion that Mr. Chaney was unfit to do his job. Dr. Van Gerpen believed that federal law prohibited a commercial driver from driving while using methadone. Based on this understanding, he did not believe that Mr. Chaney could return to work...