Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11520
SECOND DIVISION Docket No. 11120
88-2-85-2-250
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
(International Brotherhood of Electrical Workers
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. That in violation of the governing Agreement, the Burlington
Northern Railroad arbitrarily refused to allow Electrician Lawrence M. Thivel.
to return to service after recovering from an illness and being released for
service by his personal physician.
2. The Burlington Northern again violated the Agreement when Electrician Thivel later presented additional documents attesting to his recovery
and was again denied service by the Carrier.
3. That accordingly, the Burlington Northern Railroad should be directed to compensate Electrician Lawrence M. Thivel for all time he was denied
service between Wednesday May 23, 1984 and July 11, 1984.
FINDINGS:
The Second Division of the Adjustment Board upon the whole record arid
all the evidence, finds that:
The carrier or carriers and the employe 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.
The Claimant, an Electrician at the Carrier's 14th Street Coach Yard
facility in Chicago, Illinois, alleges that the Carrier improperly withheld
him from service between May 23, 1984 and July 11, 1984.
The Claimant was absent from work due to illness from May 17, 1984
through May 22, 1984. On May 23, 1984 the Claimant submitted a statement from
the "Doctor's Emergency Officenter" indicating that he had been treated for
chest congestion, nasal congestion and productive cough going on for two
months.
Form 1 Award No. 11520
Page 2 Docket
No.
11120
88-2-85-2-250
The initial issue to be resolved is whether the statement presented
by the Claimant on May 23, 1984 constitutes a medical release authorizing him
to return to work. Support for the Organization's position that the statement
constitutes a -medical release is based upon a letter from the Director,
Employee Relations, to the General Chairman in which, in relevant part, he
states
"*
* The Claimant had been absent because of illness
and when he was released to return to work by his
personal doctor, he was sent by the Carrier to the
Clearing Clinic which determined that his medical
condition was such that the matter should be referred to the Carrier's Chief Medical Officer * *."
(Emphasis added.)
The Director, Employee Relations' statement concerning the release of
the Claimant is contradicted by the Chief Medical Officer in a letter dated
December 13, 1984. In his letter, the Chief Medical Officer, in relevant
part, states:
"*
* Our physician noted at that point in time that
he had been off work since May 17 and he had not yet
been released by his own treating physician."
Except for the Director, Employee Relations' statement, there is
nothing in the record to indicate that the Carrier treated the statement
presented by the Claimant to the Carrier on May 23 to be a release. On its
face the statement fails to disclose that the Claimant has recovered from his,
symptoms and is able to return to work. In fact, at the Carrier's request,
the Claimant underwent a medical examination from Dr. Boyd at the Clearing
Clinic on May 23, at which time the decision authorizing the Claimant to
return to work, was referred to the Chief Medical Officer. On the basis of
the May 23, 1984, examination, the diagnosis of the Claimant was that he had
bronchial pneumonia. Moreover, the examination disclosed that the Claimant
continued to suffer from dizziness and shortness of breath. The medical
examination of May 23, 1984, and deferral of a decision authorizing the Claimant's return to work constitute objective evidence that the Carrier did not
believe that the statement from the Claimant's doctor on May 23, 1984 was a
medical release. The Carrier's actions concerning the Claimant on May 23,
1984 are consistent with "the right of the Carrier's Chief Medical Officers to
set and maintain reasonable and necessary medical standards." Second Division, Award
No.
10928.
Addressing the next issue, this Board cannot conclude that the Claimant submitted a medical release to the Carrier on May 30, 1984. Among the two
(2) documents that were sent to the Carrier on May 31, 1984, one (1) document
is a completed form of the Provident Life and Accident Insurance Company.
This form is presented to the Insurance Company in order to receive payment
for a Claim for sickness benefits. This Board is persuaded that the Claim for
sickness benefits was not presented to the Carrier. Indeed, the form indicates that upon completion it is to be mailed "to the office where [the] Claim
will be handled as shown on the reverse side of the form."
Form 1 Award No. 11520
Page 3 Docket No. 11120
88-2-85-2-250
The office where the Claim is handled is the office of the Insurance
Company. The form is also signed by the Claimant's attending physician on May
31, 1984. The- form also shows that the Claimant first consulted the doctor on
May 31, 1984. Thus, the form could not be in the Carrier's possession on May
30, 1984.
The second document, a completed "Application for Sickness Benefits"
was presented to the Railroad Retirement Board in order to receive payment for
sickness benefits. This document was also signed on May 31, 1984 by the
Claimant's attending physician; as a result, it could not have been given to
the Carrier on May 30, 1984. Both documents signed by the Claimant's attending physician indicate that the Claimant has recovered and is able to return
to work on May 31, 1984. Despite these statements, the two (2) documents
cannot be considered as medical releases. The documents serve a different
purpose than a medical release; furthermore, they were not submitted to the
Carrier.
The Claimant was not approved by the Carrier to return to work until
July 11, 1984. The Carrier's decision was prompted by a telephone call from
the Claimant's wife to the Carrier's Medical Department in which she advised
the Department that the Claimant had been released by his physician. This
information was received by the Medical Department on July 6 and reviewed by
an associate Medical Officer on July 9. The Organization indicates that
"[U]nder the conditions as they existed, the Claimant * * had no option but to
await the Company's call at his home. * * He had not been advised that he was
withheld from service * * he knew only that his test by the Company doctor [on
May 23] had been passed on the Chief Medical Officer." However, based on the
record this Board cannot conclude that the Organization has satisfied its burden of proving that the Carrier is solely responsibile for the delay prior to
its receipt of doctor's report of the Claimant. As stated in Second Division,
Award No. 10738, "* * the Board has no evidence of whether the delay was
caused by the Carrier in requesting the information, the Claimant in relaying
the request to the doctor, or his doctor in complying with it." As applied to
the facts of this case, the Board has no evidence of whether the delay was
caused by the Carrier because it had not yet received a release from the
Claimant's doctor, "the Claimant in relaying the request to the doctor, or his
doctor in complying with it." Accordingly the Claim is denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. - joeliff Executive Secretary
Dated at Chicago, Illinois, this 3rd day of August 1988.