Form 1 NATIONAL RAIIROAD ADJUSTMENT BOARD Award No.
8668
SECOND DIVISION Docket No. 8260
2-SPT-CM-'81
The Second Division consisted of the regular members and in
addition Referee George E. Iarney when award was rendered.
Brotherhood Railway Carmen of the United States
Parties to Dispute: ~ and Canada
~ Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That under the current agreement Coach Cleaner A. B. Foster hereinafter
referred to as the Claimant, was unjustly deprived of his service rights
and compensation when he was improperly discharged from service under date
of June 30,
1978
after two (2) years of service with the Carrier.
2. That the Carrier be ordered to:
(a) Restore the aforementioned Claimant to service with all service mind
seniority rights unimpaired, and he be compensated for all time lost
restroactive to Monday June
6, 1978
the date that he was certified to
be able to return to duty by his personal physician had he not been
unjustly withheld, and removed from service.
(b) Grant to the Claimant all vacation rights he would have enjoyed,
had he not been removed from service.
(c) Assume and pay all premiums for hospital, surgical and medical
benefits for Claimant and dependents, including all costs for life
insurance.
(d) Pay into Railroad Retirement Fund the maximum amount that is required
to be paid for an active employe, for all time he is held out of
service.
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 employe 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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant, Carman, Amos B. Foster, a Coach Cleaner formerly employed at Carrier's
Passenger Yard in Oakland, California was dismissed from all service of the Carrier
on June
30, 1978,
following an investigation held on June
13, 1978,
wherein, on the
basis of the evidence adduced, he was adjudged guilty as charged of being absent
Form 1 Award No. 8668
Page 2 Docket No. 8260
2 -S Pr-CM-' 81
from duty without proper authority. At the time of dismissal, Claimant had
accumulated with the Carrier of one (1) year and eleven (11) months service.
Claimant allegedly sustained an on-duty injury on date of April 30, 1978, when,
in the process of descending from the second floor locker room he fell down a
flight of nineteen (19) stairs. Following his fall, Claimant was taken to the
emergency room at Providence Hospital where he was examined, given medication,
and subjected to taking X-rays. Claimant was advised by the attending physician he
had not broken any bones and that he should go home to rest and relax. At the
hearing, Claimant testified the attending physician said nothing to him regarding
the length of time he required to be off from work to recuperate. However, J. P.
Recend, Assistant Trainmaster and the inquiring Carrier Officer in the instant case,,
testified that when he saw the Claimant at Claimant's home, Claimant related that
the emergency room doctor had given him an estimated disability period of two (2)
to four (4) days.
On May 3, 1978, at Carrier's direction, Claimant was examined by Dr. Vernon R.
Dennis, a physician selected by the Carrier and employed on the staff of Berkeley
Industrial Medical Group. Following examination of Claimant, Dr. Dennis, in a letter
to Carrier dated May 10, 1978, set forth in extensive detail his findings regarding
Claimant's medical condition. Among his remarks, Dr. Dennis reported the following:
"(After his fall, Claimant), states (that while he did not lose
consciousness) he was unable to arise under his own power because
of pain in the right lower extremitry, the right buttock reg;.on,
the right side of his body and the right shoulder.
The patient is a very well developed black male, appearing to be
about the stated age of 24 years.
Because I was unable to find any visible evidence of old or recent
trauma to the affected parts, he was asked to point out any areas
of abrasion, discoloration, or swelling that the examiner might
have missed. He was unable to point out any areas, but explained
that he had 'pain' in the areas as previously described.
OPINION
Although-the examinee may have suffered the fall described, I
believe that at the time of this examination, there is no
significant residual, at least not sufficient residual to
prevent his returning to work at his customary occupation
(which was described in detail by the examinee to the
examiner), and I believe there is no basis for treatment.
The examinee was advised of this opinion at the time of the
current examination.
You will note the complete absence of any visible evidence
of injury. You will also note the peculiar gait with and without a crutch. You will also note the contradiction in his
poor ability to flex his trunk when standing or allow straight
Form 1 Award No.
8668
Page
3
Docket No.
8260
2-S
Pr-CM-'
81
"leg raising when lying, as compared with his ability to
forward flex his trunk (straight leg raise) when seated."
The Carrier takes the position that based on the medical findings of Dr. Dennis,
Claimant was found to be physically fit to return to work as early as
may 4, 1978
and that his failure to do so was in violation of Rule 810 of the Carrier's General
Rules and Regulations which reads in relevant part as follows:
"Rule 810 - Employes
XXX
must not absent themselves from their
employment without proper authority.
Continued failure by employes to protect their employment shall
be sufficient cause for dismissal."
The Carrier notes that in his testimony at the investigation, Claimant acknowledges
the fact that Dr. Dennis told him that in his (Dr. Dennis') opinion, his physical
condition did not prevent him from returning to work and that he understood that
such a finding constituted a medical release terminating his authority to be
absent.
It is Carrier's view there does not exist one iota of medical evidence that
Claimant ever sustained a personal injury. Rather, Carrier submits that the instant
case is a classic example of an employee with little service who has a past record
of poor attendance and performance attempting to justify further absence from work
by employing the personal injury game.
The organization asserts Claimant was not absent from work without proper
authority and in support of its position relies on the policy set forth in Western
Division Superintendent's Special Notice No.
27,
issued May
12, 1977
which reads
as follows:
"Written authorization is not required for an absence when such
absence is caused by an employee being under the care of a
physician. In such cases, the name and address of the attending
physician must be disclosed. If requested, it will be necessary
for the employee to immediately provide medical proof of necessity
for 4jh4ence; if the absence extends beyond
30
days, it will be
incumbent upon the employee within 10 days to have his attending
physician furnish medical proof of necessity for such absence and
estimated length of such absence."
The organization notes that Claimant testified he consulted and was examined
by his own personal physician, Dr. Constantine on May 1,
1978
and that he remained
under Dr. Constantine's care and continued to receive medical treatment from him
until June
5, 1978.
On this latter date, Dr. Constantine issued Claimant a medical
Return to Work Order certifying Claimant would be able to return to work as of
June
12, 1978.
Therefore, contends the Organization, Claimant could not be considered
as being in violation of Carrier's General Rule 810 as his authority to be absent
from work flowed from the provision set forth in Special Notice No.
27
cited above.
In addition, the Organization argues that, notwithstanding Dr. Dennis' opinion that
Claimant was physically fit to perform his assigned work, Claimant was nevertheless
Form 1 Award No.
8668
Page 4 Docket No.
8260
2-SPT-CM-'81
experiencing pain to a degree he felt he was unable to return to work. The
organization submits thatsin spite of Claimant's profession of pain and inability
to perform his assigned duties, carrier without any compassion and without
seeking a second medical opinion, chose to accept Dr. Dennis' opinion as gospel
without giving Claimant the benefit of doubt.
The Organization further submits that in the private sector, second medical
opinions are sometimes sought because there is a recognition that no matter how
well qualified a doctor may be, he/she may not always be infallible. In the instant
case, Claimant placed himself under the care of his own personal physician and in
said physician's judgment, which here, argues the Organization, constitutes a second
medical opinion, Claimant was not physically able to return to work until June
12,
1978.
In support of this latter point, the Organization notes that in his testimony
at the investigation, Assistant Trainmaster Recend observed that it is allowable for
an employee to place himself under the care of another doctor for any reason. Thus,
inasmuch as Claimant continued to be in pain as a direct restdt of the inaury
sustained on-the-job April
30, 1978
and the fact that Claimant was being treated
by a qualified physician between May 1,
1978
and June
5, 1978,
he was therefore not,
the Organization asserts, in violation of Rule
810
and should thus be reinstated
with all benefits restored.
The Carrier rejects the Organization's defense of Claimant based on the policy
enunciated in Special Notice No.
27,
arguing such position lacks validity on two
grounds: (1) there was no reasonable evidence supporting Claimant's need to remain
off duty account injury beyond May
3, 1978,
as Dr. Dennis could find no signs of
injury nor evidence of lingering effects from his alleged fall; and
(2)
according
to the requirements set forth in Special Notice No.
27,
it is incumbent upon an
employee, should he/she require extended care by a doctor, to disclose the name
and address of the attending physician and this the Claimant never did. As to
Claimant's medical release issued by his personal physician Dr. Constantine, Carrier
asserts this document was never presented either prior to the commencement of the
investigation, during the investigation nor any time before June
30, 1978,
the
effective date of dismissal. Carrier maintains that the first time it became aware
of the release was during the handling of the claim on-the-property on December
18,
1978,
a full six
(6)
months after the formal investigation was held. Carrier
submits said medical release obtained from Dr. Constantine is untimely but that in
any event, even assuming arguendo he was released on June
5, 1978
for unrestricted
return to service beginning June
12, 1978,
Claimant never did return to service
any time prior to the investigative hearing or date of dismissal. Carrier asserts
it has a right to expect regular, punctual and reliable service of its employees
and argues that in the instant case, Claimant's absence was without justification
and therefore it should not be required to take back Claimant into its employ.
A very thorough review of all the evidence and argument of record convinces
this Board that the Claimant, for reasons known only to him, did, in fact, choose
to malinger rather than return to work when physically restored to do so. At the
same time, however, we are not sure Claimant was so physically fit on date of
may
4,
1978
as so judged by Dr. Dennis. In any event, we note Dr. Dennis' full
account of his examination of Claimant is set forth tethe Carrier in a letter that
was dated May 10,
1978,
and we presume Carrier did not receive the letter until -
sometime after that date. Claimant therefore could not have returned to work on
Form 1 Award No. 8668
Page
5
Docket No. 8260
2-SPT-CM-'81
May 4, 1978 even if he were fit to so do. Although Dr. Constantine's medical release
is indeed deficient, as the Carrier notes, with regard to indicating certain
information, specifically, the exact period in which treatment was administered to
Claimant, nevertheless, such release constitutes a prima facie difference of opinion
between Claimant's personal physician and Dr. Dennis as to the date Claimant was
able to return to work. However, we are disturbed over Claimant's failure to ,attempt
to return to work on June 12, 1978 even though he was scheduled to appear at his
investigation the very next day. In addition, we are baffled as to why Claimant did
not present a copy of Dr. Constantine's medical release to the hearing officer any
time during the investigation. These latter two concerns, we confess, cause us
to view Dr. Constantine's medical release with some skepticism. Nevertheless, we
are persuaded by the evidence Claimant did experience the accident from which 1'ae
apparently sustained an injury or injuries causing him pain which, for real or
imaginary reasons, prevented him from returning to work within a reasonable
period of time. We agree with Carrier's position that under the circumstances, it
was incumbent upon Claimant to notify Carrier of his continuing physical condition
and to provide Carrier with the required information regarding his personal physician.
We therefore admonish Claimant for neither notifying Carrier or providing this
required information. However, despite Claimant's failure to provide such information
and his failure to resume work when released by Dr. Constantine, we are inclined to
give Claimant one more, that is, one last chance, to keep his employment with
Carrier. in so doing, we caution Claimant in no uncertain terms to get himself
10
together and to conduct himself in a responsible manner. We believe a job, especially
in today's economy, is a precious commodity to be honored, highly regarded and
protected and we urge the Claimant to view his job as such.
A W A R D
Carrier is directed to reinstate Claimant, Amos B. Foster with seniority
unimpaired but without back pay or other requested monetary benefits. Theitime
Claimant has been out of service shall serve as the disciplinary penalty imposed
for his conduct.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By v'CC~-~'
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 18th day of March, 1981.