Physical Unfitness: Using Medical Expertise in Personnel Adjudication
Finkle, Arthur L., Public Personnel Management
New Jersey's Merit System Board has jurisdiction to reject candidates for physical inability to perform job. It also has jurisdiction to adjudicate cases involving employees who seek leave with pay caused by o-the-job injuries. Some of these Board decisions are extremely complex for lawyers to decide because of the technical medical issue and theories. To assure the maximum feasible expertise in deciding these cases, the Board established a Medical Examiners Panel. This article describes the Panel's function, composition and procedures. The article then describes some of the interesting cases which the Panel has considered in the medical fields of audiology, cardiology, orthopedics, hematology and opthalmology .
In New Jersey, the Merit System Board ("Board" is responsible for testing and providing lists of candidates for employment for State and local governments. While most public sector jobs involve office work, there are many situations in which candidates,particularly in public safety, craft, maintenance and hospital worker jobs are rejected for physical inability to perform the job. Indeed, New Jersey, more than one-fifth of new appointments involve law enforcement jobs. In these situations, the Board finds itself in the position of attempting to rule on complex medical findings.
In addition, the Board personnel rules provide that the employer shall award sick leave with pay for up to one year from the date of injury to State employees who are disabled due to work-related injury or illness. If the employee disagrees with the employers medical determination. he/she may appeal to the Board which will adjudicate these sick leave with pay appeals. The Board often finds itself adjudicating medical cases based on its legal expertise. It cites the arguments, weights the logic of the physicians' reports and decides on the credibility of the litigants. Finally,it arrives at a decision.
In many cases the Board's legal analysts do not understand the medical complexities of the case. The medical test may be outdated. New developments may have occurred in medical science. And, the relationship of one injury to another may be obvious to the medical eye, but invisible to the legal eye.
Overlayed on the entire process of the potential for illegal handicap discrimination. The touchstone is that, when such a handicap exists, a reasonable accommodation must be made. Otherwise, the employee is liable for damages (Rabin, Teasley, Finkle and Carter, 1985:82).
To resolve these conflicts, the board attempts to legally reconcile the two divergent medical reports of the employer and the employee. Since the Board uses a preponderance of the evidence standard(in which one side has to prevail by more than 50%), the legal analyst will weigh the evidence and make a determination. However, the medical community uses a much higher standard of evidence. Furthermore, the medical community is accustomed to making determinations for insurance companies so that it has the necessary expertise and experience to make such determinations.
In addition to the standard of evidence, the Board's rules establish the burden of proof. In the procedures for eligible list rejections, the burden of proof is on the appointing authority. Thus, if an appointing authority rejects a candidate for a medical reason, it has the burden to document the disabling condition. On the other hand, if the appointing authority rejects a sick leave with pay claim, the burden of proof rests with the appellant.
Medical Examiners Panel
To optimize medical expertise in its personnel decision making the Board established the Medical Examiners Panel ("MEP") in 1978 as a semi-autonomous body with the power to report and recommend to the Merit System Board. The panel consists of members of the faculty of the State medical school (University of Medicine and Dentistry of New Jersey). Its Chairperson is the Dean of Medicine, its permanent member is an Internist and its third voting member is the consulting physician who is a specialist in the particular case at issue. …