Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10738
SECOND DIVISION Docket No. 10516
2-BN-CM-'86
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute; (
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Carrier has violated the provisions of the controlling
agreement when Cayman D. D. Strong was not promptly returned to
service following examination by a Carrier doctor on October 1,
1982.
2. That Cayman D. D. Strong be compensated for all lost time
commencing on October 1, 1982, continuous until he was finally
returned to service on December 25, 1982, sixty-one (61) actual
work days out of eight-five (85) actual calendar days.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence finds that:
The carrier or carriers and the employes or employes involved in this
dispute are respectively carrier and employes 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 Cayman D. D. Strong was employed by the Carrier at its train yard
and rip track facilities known as Tennessee Yards, Memphis, Tennessee, when he
was granted a medical leave of absence beginning April 27, 1982 for injuries
sustained while off duty. On September 30, 1982, the Claimant contacted the
Memphis Foreman's office and stated that he had been released by his personal
physician to return to work. That same day he reported to the Carrier and
received a physical examination by the Carrier's Memphis doctor. Some time
thereafter the Carrier's Memphis office sent the report on the Claimant's
health to the Carrier's Chief Medical Officer Dr. T. V. Mears, at St. Paul,
Minnesota for approval.
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The record, as presented by the parties to this dispute, does not provide
the Board with a very clear picture of what happened next. The Carrier's
Chief Medical officer, in a letter dated after this claim was filed, stated
that at the time he was reviewing the Claimant's file he received additional
information that "there had been possibly some significant psychiatric
problems." Although there is no record of the Carrier or its doctor
requesting additional information from the Claimant, a psychiatric report
prepared by Claimant's treating doctor on November 30, 1982 was received by
the Carrier on December 7, 1982. This report was prepared by Claimant's
doctor after the initial filing of this claim on November 23, 1982.
Once the report was received by the Chief Medical Officer, it took
approximately one more week for him to review it and to approve the Claimant
for a return to work, and then another ten days for the Carrier to return the
employe to work. Thus, a total of eighty-five days (sixty-one working days)
elapsed between the time Claimant reported ready to work on September 30, and
his eventual return to work on December 25th.
The Organization argues that the Claimant's medical leave was only for a
physical injury, and that if there were other reasons not to return him to
work, the Carrier should have notified him of these reasons. According to the
Organization, the Carrier failed to notify him of these reasons, and never
directed him to return to either his or the Carrier's physicians for further
medical evaluation.
For purposes of analyzing this claim the Board must first separate the
period before December 7th, when the Carrier received the Claimant's doctor's
report, from the period after that date, when the Carrier was solely
responsible for any undue delay in returning Claimant to work. The
Organization does not dispute that a Carrier may require proof of an employe's
fitness to return to work after a medical leave. The Carrier may require the
Claimant to submit a statement from his personal physician(s), and may either
accept this statement, or require another examination by one of its doctors.
Second Division Award No. 6569. In addition, the Carrier may direct and
require an employe to be examined by a psychiatrist or psychologist as long as
the Carrier's action is not based upon arbitrary or capricious reasons.
(Third Division Award No. 25634.) However, the Carrier must make its request
for additional examinations or reports within a reasonable period. (Second
Division Awards No. 6331, No. 9143) Although the Carrier in the instant
dispute argues that the Organization's claim rests upon no specific
contractual provision, these principles have evolved over the years out of the
Carrier's implicit right to ascertain whether an employe is fit to return to
work, a right which also is not explicitly spelled out in the contract.
In the instant case the Organization does not argue that a request by the
Carrier for information from Claimant's doctor about Claimant's mental health
was arbitrary or capricious. Instead it claims that no request was ever made.
And yet, a psychiatric report from Claimant's doctor appeared in the Carrier's
Chief Medical Officer's office on December 7, 1982. This is the only fact
clearly evident from the record; it is a safe assumption that the Claimant's
doctor would not have sent such a report, however, without a request from the
Carrier, either directly, or indirectly through the Claimant.
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Both the Carrier and the Employes bear the burden of expediting the
necessary information for the Chief Medical Officer to make a determination of
an employe's fitness to return to duty. (Fourth Division Award No. 4269) If
the Carrier delayed in requesting such information, then it bears the burden
of delaying the Claimant's return to work. But in this case the Board has no
evidence of whether the delay was caused by the Carrier in requesting the
information, the Claimant in relaying this request to his doctor, or his
doctor in complying with it. Therefore, the Board must hold that the
Organization has not met its burden of proving that the Carrier is solely
responsible for the delay prior to its receipt of the physician's report of
the Claimant.
The facts occurring after the report was received on December 7th are more
definite. The Carrier acknowledges that eighteen days elapsed between the
receipt of the doctor's report and Claimant's clearance to return to work. The
Board is of the opinion that this delay was too long. In similar situations
this Board has approved delays of five days, a week, even ten days, depending
on the circumstances involved. (See Awards cited in Third Division Award No.
20344) The Carrier has cited no cases in which delays of almost three weeks
have been upheld. Furthermore, the Carrier has not offered any special
reasons, other than its own administrative procedures, for this delay. The
Chief Medical Officer had only to review a letter from a treating physician,
and once he had arrived at his decision, a simple telephone call from him
would have sent the Claimant back to work. Furthermore, the Claimant had
already filed this claim by the time the Carrier received the report,
indicating his strong desire to return to work immediately.
Balanced against the Claimant's rights is the need for the Carrier to make
certain that the Claimant was fit to return to work. Under the circumstances
the Board finds that a delay of five days was appropriate, in order to give
the Chief Medical Officer some time to review and consider the information and
transmit his decision to the Carrier. Consequently, the Claimant should have
been paid for all regularly-scheduled work days after December 12, 1982.
The Board need not address the Organization's complaint that the Carrier
violated the contract by refusing to allow them an extension of time to
respond during the handling of this case. Neither party missed any procedural
deadlines. Consequently, this point does not affect the outcome of this
dispute.
A W A R D
Claim 1 is granted as to the period after December 12, 1982. Claim 2 is
granted in that the Claimant shall be compensated for all regularly-scheduled
work days after December 12, 1982.
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J 07"er - Executive Secretary
Dated at Chicago, Illinois, this 19th day of February 1986.