Award No. 6320 Docket No. 6074 2-RDG-CM-'72
The Second Division consisted of the regular members and in
addition Referee Don J. Harr when award was rendered.
SYSTEM FEDERATION NO. 109, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. 0. (Carmen)
EMPLOYES' STATEMENT OF FACTS: Car Inspector William Pletz, hereinafter referred to as the Claimant, is regularly employed by the Reading Company, hereinafter referred to as the Carrier, at its Abrams Mechanical Facility, Abrams, P·snnsylvania. -Claimant has a total of eighteen (18) years service with the Carrier.
April 9, 1970, Claimant reported for duty, after being off sick for an extended period. Claimant presented a return to duty certificate from his personal physician, which sta`vad he had no restrictions and that "* * * he may return to his usual duties."
General Foreman Davis sent Claimant to the Medical Examiners for a medical examination to determine his fitness for work, this, without placing Claimant on duty as required by "Regulations for handling and reporting employes holding positions in the scope of Shop Crafts or Firemen and Oilers' Agreements, who Temain away from their work because of sickness or accident."
disabled from performing any and every kind of duty for compensation. Carrier submits that under the unique circumstances present in this case it had an obligation and duty to prevent the claimant from killing himself. This is particularly valid where Carrier's chief medical examiner has concurred with the claimant's own diagnosis of his condition that he is not fit for duty.
Your Board has long determined that where conflicting medical opinions are present it will not intervene when the Carrier's medical examiner has acted reasonably upon the facts and the claimant's medical record. Must the Carrier subject itself to a widow's negligence action by returning an employe to work when both the man and its chief medical examiner agree that sucn action gill place his life in danger? Indeed, in this case the claimant suffered a third heart attack twenty-five days after stating that he knew his work placed his life in danger. Carrier submits that the promulgation of the "E- 7 Instructions" was not intended to abrogate common sense and prudence. Furthermore, they should not be construed to allow a claim advanced to recover monetary damag<:s for an employe desiring to commit suicide.
Assuming arguendo that the "E-7 Instructions" are applicable, Carrier notes that the claimant has not complied with them. Contrary to his notice of April 11, 1970, the claimant failed to present his physician at the hearing and hence deprived Carrier of the opportunity of examing him and of confronting him with the testimony of its medical examiner. Moreover, the claimant or his organization have never requested that a third disinterested doctor be called upon to render his opinion, Carrier submits that it had no obligation under the totality of the circumstances to return the claimant to duty after the April 14, 1970 hearing where he presented no medical testimony and when no request was .advanced for a third doctor's opinion. Carrier suggests that the absence of a request for third party evaluation is in itself significant.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employ e within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Employes contend that Carrier erred when on April 9, 1970, it refused to allow Claimant to return to service in accordance with the practice established by Carrier's Regulations contained in its Standard Instructions E-7.
Claimant a Car Inspector with 18 years service, suffered a heart attack on November 11, 1960, and `vas off work until March 16, 1961. He returned to duty with the provision he remain under medical care. He was off duty from March 6, 1965 until April 6, 1966, due to arterioscherotic heart disease. On August 8, 1965, he applied for disability benefits under his Travelers Insurance Policy stating that he was:
Due to his heart condition, Claimant left his employment on December Q, 1969. On April 9, 1970, Claimant reported for duty. He presented a Teturn to duty certificate from his personal physician, which stated that he had no restrictions and that "* * * he may return to his usual duties."
The General Foreman instructed Claimant to report to Carrier's Chief Medical Officer, and on April 13, 1970, he did so for the purpose of obtaining a return to work card.
The Medical Examiner refused to issue Claimant a return-to-duty slip. Claimant returned to his place of employment and the General Foreman refused to allow him to continue on duty.
On April 9, 1970, Claimant was griven notice, in accordance with Rule 34, to appear for hearing and investigation at 10:00 A. M., April 14, 1970, in connection with his being physically able to perform his duties. He was instructed that it was his responsibility to have his physician present at the hearing.
The hearing was held on April 14, 1970, and Claimant failed to have his physician present. Thereafter, Claimant was informed he would not be permitted to return to work for medical reasons.
The two pertinent sections of Carrier's Standard Instructions E-7 mad as follows:
The Employes rely upon Second Division N.R.A.B. Award No. 5173 (Weston). This Award involved the same parties. In Award No. 5173, Referee Weston stated:
In the instant case, the ~Claiinant was afforded a prompt hearing. We further find that it was incumbent upon the Claimant to invoke the provisions of Standard Instructions E-7 and request an evaluation by a third doctor. The Employes recognize that these Instructions become agreement between the parties, as evidenced by their Submission to this Board.