Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.12484
SECOND DIVISION Docket No. 12112
92-2-90-2-234
The Second Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
{CSX Transportation, Inc. (formerly the Chesapeake
and Ohia Railway Company)
STATEMENT OF CLAIM:
1. That the Chesapeake and Ohio Railroad Company (CSX
Transportation, Inc.) (hereinafter "Carrier") violated the provisions
of Rules 18-1/2, 37 and 38 of the Shop Crafts Agreement between Transporta
tion Communications International Union - Carmen's Division and the
Chesapeake and Ohio Railroad Company (CSX Transportation, Inc.) (revised
June 1, 1969) and the service ;rights of Cayman C. B. Shipe (hereinafter
"claimant") when the carrier removed and excessively withheld the claimant
from service.
2. That, accordingly, the claimant is entitled to be
compensated for eight (8) hours each work day from May 7, 1987 to Julv I:. 1987.
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 employes within the meaning
the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction wry the
dispute involved herein.
Parties to said, dispute waived right of appearance at hearing
thereon.
The basic issue involved in this Docket has been before this
and other Divisions of the Board many times. The claim of the Organization
involves an allegation of inordinate delay in returning an employee to duty
following a medical release by his treating physician. Review of our swards
in similar cases discloses that the Board subscribes to the notion that undue
delay on the-part of the carrier in review of medical documentation, scheduling
of necessary tests' and/or examination by its medical staff, warrant compensatton
for the time the employee loss: as as a result of delays arributable to carrier
inaction. Our Awards, though, have not established a standard on an appropriate
time element for measurement of these delays. Instead the particular facts
associated with each individual case have been reviewed and generalized tests
of reasonableness have been applied to the facts developed.
Form 1 Award No. 12484
Page 2 Docket No. 12112
92-2-90-2-234
In applying this reasonableness standard, the Board has recognized
that both the employee and the carrier share an obligation to expedite
receipt and release of necessary medical documentation and information.
The Board has also recognized that special cases require longer periods
for review than more ordinary cases. Carriers have a basic obligation
to insure that any return of an employee who had been absent because of
illness or injury satisfied its medical standards. Importantly, though,
in cases where the returning employee has satisfied accepted medical
standards, the Board has concluded that delays in effecting a return to
duty, within the control of a carrier, are the responsibility of the
carrier.
Applying these considerations to this case the Board notes that
Claimant suffered a history of back problems, including prior back surgery.
On May 6, 1987, he approached his General Foreman complaining of back
pain. He was directed to have a special examination by a Carrier Medical
Examiner that day, which necessitated a follow-up examination by an
orthopedic specialist. The orthopedic examination could not be scheduled
until June 2, 1987. The results of this examination were received by Carrier on June 17, 1987, and on July 7, 1987, Claimant was approved to
return to duty.- Since he was on vacation at that time, he returned to
service on July ly, 1987.
In the circumstances present it was not inappropriate for Carrier
to withhold Claimant from duty until it was established that his b,~rR
condition was within Carrier's medical standards. Accordingly, Clai-.m
t
is not entitled to compensation for any time lost between the date
was held out of service for medical reasons and the date Carrier w.w
advised of the results of the examination of the orthopedic speciali.t.
Upon receipt of the results of this examination Carrier was obligated
to act promptly. Ten work days should have been more than sufficient
to act upon the matter. Accordingly, Claimant is entitled to payment
for time lost beyond ten work days from the date Carrier received
the
report of the orthopedic specialist, i.e., commencing Thursday,
Juiv
2, 1987.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ant J. D -Executive Secretary - -
Dated at Chicago, Illinois, this 18th day of November 1992.
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