please the court i represent joyce anderson who lost her career as a coal miner at the age of fifty two based on testimony or opinions of doctors who knew almost nothing about the osteoporosis that led to her discharge believe the problem that some of had with this case including the appellate is that they had difficulty understanding that winning an arbitration under the collective bargaining agreement did not immunize them from their state law claims indeed your honour's at the arbitration the consolidation coal company argued to the arbitrator in both their free arbitration and post arbitration memos that the arbitrator could not consider state law claims and in fact when the arbitrator ruled against her the arbitrator specifically said in his decision that this is not  positive of her state law claims now under the law as articulated most recently in fourteen penn plaza the someone who loses an arbitration under a i think it actually does your honor i mean if one looks at and i'm not sure what you mean by no bearing because that's a fairly broad statement  now yes on the discrimination and workers comp no on a direct threat analysis the direct threat analysis is a whole separate concept that is not based upon discrimination a retaliation the way i understand a direct threat as articulated both under the west virginia human rights act and also your honor under the americans with disabilities act as a similar provision w that provision is about is to prevent exactly what happened here normally what happened in this case why was joyce andersen terminated from her employment the answer is very clearly because of her osteoporosis if an employer wants to terminate the employment of an employee based upon a condition which the lower court agreed is a disability it can do so excuse me based upon a direct threat so if the employers in this case believes that osteoporosis is a condition that may lead to harm to the individual in this case testimony it's harm to the individual not to others if they believe that they can terminate that based on direct threat however if they terminate based on direct threat they must meet the standards of the direct threat legislated regulations under the human rights act and those standards clearly state that  terminations based upon the notion that an employee represents a threat to herself or others must be based on medical opinions based on the most current medical knowledge  established in this case and i think the lower court was confused on the analysis the prime aphasia case the lower court found that she was an individual with a disability she certainly was regarded as one i the consolidation coal company and she was terminated and she was terminated based upon her osteoporosis disability that's not a question when is all that leave the collective bargain here because the whole sixty four discusses exactly what happens in these contexts the fact that you go consolidation coal companies and major coal companies they understand when they go through the three day provision under the collective bargaining agreement that they also have obligations under state law your obligations under state law aren't thrown out the window by a provision in a collective bargaining agreement they know that going in this is not a mom and pop call mine they know going in that they've got a three j responsibility under section three j of the collective bargaining agreement and they also have a responsibility under the west virginia human rights act and the americans with disabilities act and prevailing under three j does not erase their obligations under state law claim that the employee right about those in good faith then followed their collective bargaining agreement or return to work disappears i'm just not guess there's two issues i want to raise in response to that one is with regard to the workers compensation retaliation claim certainly that is evidence of good faith on part of the employer however there is other evidence that negates good faith on part of the employer this is a summary judgment decision not of jury verdict that i lost and as a summary judgment decision there is evidence that goes both ways i'm whether the employer was in good faith in the way it handled the three what what is your prime concern it my prime but whether two different theories the direct threat is the one i want to put that i woke up on the most and although i believe there's been plenty of evidence on bad faith when you get involved in these union employees you know i don't show all that just cut to the chase and give me a minute if you can tell me the biggest mistake the judge made was ignoring while ignoring the proper analysis when i wanted a proper analysis what in think i know you think the judge didn't properly analyze on the great british got there yes and you apparently think that's your strongest point although you don't give up the other but you think that's the players you have a family and i am asking what is the strongest articulate well you know what i'm giving you the chance of trying now but i may be retreading you may think i'm retreading look under the human rights act legislative rule i don't need all that what what in your opinion d wrong i'll start this anderson you finish it the judge made the greatest mistake because he did not want to review that the spew did facts on the testimony as to what the law what the medicine of osteoporosis have a situation here where the doctor the go to doctor for the consolidation coal company had at that point his career never treated osteoporosis patients did not know the current then current cases where there is undisputed evidence that could lead to a summary judgment decision but that's not the case here but how would you do that on her medical knowledge could you would new always challenge and say the jury needs to decide the best the most current medical knowledge i'm not saying he's not qualified or she's not qualified but but based on some responses they gave him my question to you is not as a matter of all that they know the medical knowledge there's a bit of weakness they knew almost known medical knowledge that doctors know i'm not asking you about these doctors i'm actually the hypothetical do you think if it focuses on the most current medical knowledge is that standard yes ok why do you think that's always a question or just can't that be decided as a matter of all it could be but not in this case the facts i mean i laid out in detail perhaps it was i'm talking about is that the speed that that the court that the doctors were not up on the most common medical knowledge that is probably the most egregious they have what do you do with the fact that you accepted the doctor at least in the collective bargaining contacts i mean they choose these doctors make whittle down the list and then what which you wanted to come up with you said well his opinion is is incorrect it's not sufficient very specialized but that's why it's about classics am bad when separate and then he comes with an opinion you don't like the way he came back and suddenly there's launched an attack upon him after the fact that pursuant to a procedure it wasn't like somebody agreed that he is a competent doctor two things three let me make two or three quick points on that but one only acceptable from the standpoint of neutrality no i don't they were there you get so many strikes and then you're left with what's left nobody said we think is neutral as least as far as i understand it procedure see this in your bio ok thank you ro well with all due respect your honor bart my reason for raising the arbitration is because that was the first point raised during the course of the opening argument but the relevance of that went to the significance of the top and the instance and then the whole issue here is a summary judgment so all we have to deal with here on trade what this seems like the need i'm not saying it was around about argument but all this case is about is is there a genuine issue of fact that doctors all being specialists or seated surgeons and then you've got the top of the company being journalist one of which at mit i don't even know anything about this study that was being used to be able to evaluate her and the question is is that we're not saying it goes one way or the other but why should that be a matter of law why not put that to the jury and in this issue i think your honor you pointed out in response to mr carlin questions  company the company just has that as a basis for compensation yes or frankly that is the argument plus the company went beyond just article three jeff the company took dr steinman's decision sorry he was an orthopedic yes or he was north b c he was in washington pennsylvania he did a record review so the company went beyond what conny they are claiming ends i believe you don't own direct employer makes the action not through the use of after the fact experts last pretty clear you evaluate in the first decision at the time that it's made not after the fact but more importantly i want to make this point or run up i put this question for medical opinion then the doctors you consulted us the collective bargaining procedure led you to make the decision that you did and you're saying that that medical evidence was the most current medical evidence in the world whether it could have been better that doesn't seem to me to be there on the discrimination plain as necessarily  of the point is that it's not discriminatory to make a decision based on the competent medical evidence both under the collective bargaining agreement and under the physicians you discrimination laws simply declare the bargaining agreement never require the best medical evidence but i think even more importantly the hulloa discrimination does not require about an employer make the decision on what the court believes to be the best medical evidence the law requires that the employer make a decision based on on nondiscriminatory some sort of fraud or pretext or horrible or or whatever i agree in fact i would agree with your points with regard to what the law requires i go one step further the law does not even bring in generals who probably see all kinds of patients they don't know anything about this one of the men admitted i don't even know anything about this particular report study as being used to determine these kinds of issues and that's the issue here and i specialist over only on the one hand and then you bring in three doctors here with who say ok fine but but i don't know anything about that stuff and i agree these were not general we were certified in occupational and if they were board certified in employ ability analysis she has never rated anybody for determining whether they can go back to work i think in this case you need both the medicine because it is a return to work it is for duty question you need the medicine and then you need also that is what dr simon dr sevier provided the the orthopedic surgeon that the family doctor or the treating doctor said common sense would suggest that she should not return to work and i'm not aware of any evidence based that she in her own opinion did not give a unqualified she should go back she said how mean sense which suggests she should not that's what she said that's the evidence you have before  hand and it's you know it's it's admirable but on the other hand you don't want somebody to return to work and be seriously claim has been abandoned by the plane but the evidence of what the company did to try to find her employment he print oid goes to the issue of whether there was a pretext the company looked at the surface company and say you can't come back to work nobody said you can't go order is if you know about particular study and i give it as another study out there for it but you don't know about the people one is that sufficient to be able to say that you up on current medical knowledge you don't know the competing study and you only know one study it's not even clear that the risk study which was developed in the united kingdom and has now subsequently been adopted by the world health organization is not even clear that for the practitioner a not b but at least you've got evidence that from the point of from the claimant side i think what you really need to do as i suggested is an occupational medical specialist who can determine the disease and how it impacts the job not just the disease process even if you look at pratt's which is what dr bell and tony relied upon you know it's a calculation she's likely to have a repeat fracture or an additional fracture thirty two point seven percent that's still a very high fracture risk that's something that all of the medical professionals in this case of three on dr mckinley dr bill tony included that because of her heigh he found it on google not by a medical database when i took him over the study i don't see the the limit in print any limiting principle to your physician it seems to me this is going to go down the road of second guessing doctors are in for a night of the kind of anytime doctors disagree or anytime you are dissatisfied with the credentials of one doctor or a novice or that you can argue somebody who is not sufficiently specialized will somebody was not aware of this study out there then we you know then we come into court on it and it it just doesn't seem to me that we that there's any logical stopping point to this we're going to be in a swamp and we're going to be a sort of a board of a lot of what one of the employment discrimination laws which which are to prohibit discrimination but i don't see in this record that this implore you is a bad actor th concern let's see what you're describing to me is almost seems more fitting to a medical malpractise than it does a discrimination suit i mean this is the wars of competing doctors and everything that's what you have when you when you have of a medical malpractise thing but here the question is whether the employer discriminated osteoporosis and the law permits them to do that but they have to do it on good medical knowledge the evidence in the infinitely open ended not in this case though your honor that this is the this is an doctors expertise is not only a matter of of orthopedics which it is but it's also a matter of occupational expertise they try to select they have they inquired of a specialist outside of this elective bargaining process they offer her jobs and we're going to so you very discriminated against for all that there was some issue or private fact on that point  you know that pushes it pretty far i don't think in this case it does your honor this is a union the starts was a do union company dispute those are not done in the kind of academic there's a there's a fight between the union and management this case and there was lots of reason which we haven't gone into what's the question of material back to the way this case we've watched the question there are questions about that but point to the question that's what i was trying to get at earlier what is the question of material fact is still it is the question of an aerial fact the other side let me say perhaps at the other that what you want to talk about they think on of the law we don't even get  that they don't even get that issue while they wrong i would because the direct threat affirmative defense is a different species than the typical pretext case the direct threat defense was developed because it was recognize that in some cases employer will want to fire an employee because they represent a threat to themselves or others that's what happened in this case and when we get into that paradigm it's not the the question is not whether the employer was evil and wanted to get rid of this employee but about the pretext paradigm he was tablas their own to a reasonable degree that she shouldn't be working there again so why how then do you get to the direct threat question the direction from those two questions sort of mutually exclusive that if they don't know if one of the pretext approached what they did this case and they find that the if she she your answer would be that one mystery to find such a thing of this case my answer would be that i guess i respectfully disagree with the way in which the court seems to be analyzing the case well you know it wouldn't that's not an answer my question you can answer it you can say the best of separate issue no not that you disagree with that so that issue in touch at all only your issue or you think it doesn't at all i guess i'm not fully sure under the stand the question