Form 1 NATIONAL AAILf , \D AD,mSTMENT BOARD SECONV "IVISION
A ward No. 7033 Docket No. 6807
2-SCL-CM-' 76
'flle Second Div ision consisted of the regula r members and in add ition Referee Dana E . E ischen when award wa s rendered .
( System Fed era tion No. 42 , Ra ilwa y Employes' ( Depa rtment, A . F. of L. C. I. o.
Pn rt ies to D ispu te : ( Carmen
(
( Seaboard Coa st Line Ra ilroad Compa ny Dispu te: Cla im of Emgloyes:
L Tha t the Seaboard Coa st Line Ra ilroa d Company v iola ted terms of the controlling agreement when they held Carma n Dewey R . Ba zzell out of service May 29 , 1972 until January 15, 1973.
2 . '111at the Seaboa rd Coa st Line Ra ilroad Company be ordered to compensa te Carma n Dewey R. Ba zzell eight ( 8) hours ea ch work
day , forty ( 40 ) hours each week , at pro ra ta ra te , all overtime he would have ma de , and tha t he be made whole for va ca tion
r ights he ma y have lost a nd all other benef its wh ich accrue to h is posit ion .
The Secnnd Division of the Adjustment Boa rd , upon the whole record and all the evidence , find s tha t :
The carr ier or carriers a nd the employe or employes involved in this d ispute are respectively carr ier and employe within the meaning of the
Ra ilway Labor A ct a s a pproved June 21, 1934.
Th is Div ision of the Adj ustment Boa rd ha s jur isd iction over the d ispu te involved here in .
Par ties to sa id d ispute wa ived r ight of appeara nce at hea ring thereon .
Th is ca se involves a physical d isqua lif ica tion by Carr ier of Cla iman t
and the latter ' s cha llenge thereto. The principles regard ing physica l d isquali fica tions ca ses have been well established in a plethora of earlier Awa rd s .
As we read the record , none of the established teachings of these ea rlier
l\wa rd s is contested herein . Thus, the pa rties both recognize tha t 1) C.'arrier ha s the righ t to determine physical f itness of an employee 2 ) The find ings
of Carr ier are not absolute and , if challenged , Carr ier has the burden of
proof on physical d isqualif ica tion and 3) If Carr ier hold s Cla ima nt physically d isqua lified a nd hold s him out of service it a ssumes the r isk of fallibility.
See Award s 5847 and 5943.
Form 1
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Award No. 7033 Docket No.6807 2-SCL-CM-'76
Claimant was operated on for hern1.· ,1d lumbar discs on January 24 ,
1972. His personal physician Dr . Benjamin :i yer approved his return to work on May 29, 1972 but Carrier demurred and sent him for examination on June 7, 1972 by Carrier's Local Physican Dr. Joseph Butler. Thereafter, by letter dated June 26, 1972 Carrier 's Chief Medical Officer informed Claimant as follows:
"I have received reports from Dr.Benjamin S.Meyer and Dr.Joseph L.Butler from which it appears that you have had a satisfactory result from your recent spine surgery.
You have had two discs removed from your back, and in view of the nature of your job which requires stooping,
bend ing and lifting, I do not believe that you can safely be returned to your assignment and regret that it is necessary to medically disqualify you for further service .
I am sorry that the above decision was necessary, but assure you it was made in your best interest ."
Thereafter, on ,July 20, 1972 the instant claim and grievance were filed
claiming that Mr.Bazzell has been medically disqualified improperly. Followirg substantial handling, carrier gave Claimant an extensive medical/surgical examination in January, 1973 approved him for return to service on January 10 and returned him to work on January 15, 1973. It should be noted that Carrier offered to re-examine Claimant on December 21, 1972 but Claimant requested
postponement of the examination until January 4, 1973.
As we read the record and the case authority, Carrier has the burden of showing competent medical evidence which supports its disqualification on June 26, 1972. We concur with Carrier's assertion that back surgeries and operations are especially troublesome cases when employees engage in heavy work and we can appreciate that carrier would be especially apprehensive and careful in such cases. But that is not the issue herein . The very arguments advanced by carrier suggest a heightened need for competent medical evidence to support a disqualification decision. Yet the instant record contains not one iota of evidence absent conjecture and speculation bordering on "folk knowledge" to underpin the Chief Medical Officers decision of June 26, 1972. Insofar as the record shows and by his own statement, the medical evidence · available to the Chief Medical Officer at that time was contained in the opinions of Claimant 's physician and Carrier's own physician who had each
examined Cla imant and concluded in the words of the Chief Medical Officer that Claimant "had a satisfactory recovery from spine surgery". Yet in the face
of this bilateral medical opinions based upon examinations the Chief Medical Officer - without examining Claimant at all - decided as follows : "I do not belitwo that you can safely be returned to your assignment and regret that it is necussary to med ically disqualify you from future service". We do not
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Award No .7033 Docket No.6807 2-SCL-CM-'76
substitute our lay judgement for that of a medical doctor when we fulfill
our function of inquiring into the evidentiary basis for such a decision• .The
plain fact is that there was no medical evidence at all adduced on this record upon which the June 26,1972 decision to disqualify was or could
have been based. Indeed, such evidence as was available all pointed in the other direction. In the facts shown on this record Carrier has failed to carry the burden of proof on this physical disqualification and must suffer the consequences of such failure.
In sustaining the claim.we do so for the period of June 26,1972 through December 21,1972. We find no dilatory tactics or unreasonable delay in Carrier exercizing its right to have Claimant originally examined by
Dr . Butler or in reviewing those findings. And any delay between December 21, 1972 and his ultimate return to service were occasioned by Claimant 's request to postpone the re-examination.
A W A R D
Claim sustained to the extent indicated in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
Dated at Chicago, Illinois, this 9th day of April, 1976.