This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On September 2, 1989, the Claimant (who was a Machinist) suffered a stroke because of an aneurysm. Following hospitalization, he was medically aprpoved for work and he returned to the service on November 20, 1990. Because his Supervisors observed that he acted erratically and appeared to be disoriented, the Claimant was removed from his position pending further medical evaluation.
A neuropsychological evaluation of the Claimant was performed on December 19, 1990. The report prepared as a result of this evaluation concluded, among other things, that the Claimant had "significant impairment on several of the most sensitive general indicators of brain damage" and that he should not return to his machinist position. On January 2, 1991, the Carrier disqualified the Claimant.
Following further correspondence involving the Claimant's wife, the Organization and the Carrier, another examination was conducted by a neutral doctor pursuant to Rule 8-J-1 on March 21, 1991. That person found the Claimant fit to return to work. However, he neither saw nor considered the results of the earlier neuropsychological test. Subsequently, a "return from nonoccupational disability" physical examination was performed on May 1, 1991. The Carrier's Medical Director found the Claimant not qualified to perform his job on May 9, 1991 based on a finding that the Claimant could not work safely. However, after a follow-up medical examination on June 4, 1991, the Carrier's Medical Director qualified the Claimant with the stipulation: "For retraining and close observation for ability to carry out assigned tasks."
On June 17, 1991, the Claimant returned to work. However, on June 18, the Carrier's Locomotive Shop superintendent wrote a letter, because three Supervisors reported certain irregularities with respect to the Claimant's behavior. For example, the Superintendent reported that the Claimant had difficulty finding locations, that he could not place recent events in proper time sequence and that he could not remember what he had seen. On the basis of this report, the Carrier's Medical Director disqualified the Claimant from service. (It should be noted here that the Claimant continued to be compensated as if he were working, pending further medical evaluation.) Form 1 Award No. 12899
Subsequently, on July 24, 1991, the Claimant was examined by a neurologist and a neurophychologist. These two medical specialists confirmed that the Claimant could not work as a Machinist. When a suitable position could not be found for him in consideration of his physical condition, the Claimant was again disqualified and compensated through October 15, 1991.
Under the provisions of Section 503 of the Rehabilitation Act of 1973, the Claimant filed a complaint on February 14, 1992 with the U. S. Department of Labor. That Agency, in a six (6) page decision document rejected the Claimant's complaint.
Following further appeal and correspondence which also served to clarify the earlier medical determination with respect to the requirements for a "structured job" that would be suitable for the Claimant, the matter was appealed to this Division for final resolution.
Concerning the medical qualification issue, the Board has carefully reviewed the voluminous file that has been assembled in this case and on the basis of this review finds that the Carrier has not acted arbitrarily when arriving at its determination that the Claimant was not medically fit to work as a Machinist in a shop environment.
This Board notes that the Carrier has a clear duty and responsibility to maintain a safe workplace. Also, and equally as clearly the Carrier has a duty to itself, the affected employee and to its other employees as well as the public generally to assure that persons in its service are both physically and mentally competent. Moreover, there are legions of awards that have established a basic principle that a determination of medical fitness for service is the sole purview of the Carrier, if based on proper medical information.
In this case, with respect to the medical questions, the Claimant returned to work on November 20, 1990. Subsequently, because of the observations of the Carrier's Supervisors on January 2, 1991, the Claimant was again medically examined and was disqualified on January 2, 1991. A neutral doctor then concluded that the Claimant could return to work. After he did return to work and again after being observed by several Supervisors, the Claimant was again medically disqualified. As noted earlier, further medical examination followed and all medical persons concluded that the Claimant could not perform the duties of a Machinist. While the Organization asserts, in effect, that certain of the Carrier's Supervisors schemed to keep him off the job, there is no evidence to support such an assertation. Form 1 Award No. 12899
Stated simply, every medical examination of the Claimant (with one exception) since 1990 has found him to be unfit for duty. In the one exception, the examination of March 21, 1991, the doctor performing the examination did not have available for review the Claimant's prior evaluation. However, that fact is not particularly relevant because of the subsequent events which occurred after the Claimant returned to work when repeatedly was found to be disqualified.
With respect to the question of compensation, the claim is for eight (S) hours pay at the pro-rata rate commending on January 2, 1991 and continuing. The record developed on the property provides no basis for this Board to support any part of the monetary claim. No specific part of 8-J-1 has been cited and related to any given period of time. The Organization bears the burden to show that a rule has been violated. It has not met this burden.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.