NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-25475
Paul C. Carter, Referee
(Brotherhood of Maintenance of Way Mmployes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) Claimant M. B. Wiggins shall be reimbursed for all compensation
loss suffered by him as a result of being improperly withheld from service
beginning November 2, 1982 (System File MW-83-16).
(2) The claim' as presented by General Chairman
W.
E. Allen on December
21, 1982 to Assistant Regional Engineer R. E. Cox shall be allowed as presented
because the claim was not disallowed by Assistant Regional Engineer R. E. Cox
in accordance with Section 1(a) of Article 15.
'The letter of claim will be reproduced within our initial submission.
OPINION OF BOARD: The dispute herein began on the issue of the physical fitness
of Claimant to return to work for the Carrier as an Assistant
Bridge and Building Foreman. In the handling of the dispute on the property, a
time limit issue also became involved.
The record shows that on July 7, 1982, following consultation with
Claimant's personal physician, the Carrier removed Claimant from service based
upon a diagnosis of Claimant's personal physician that Claimant was suffering
from syncope. Syncope is defined as:
·...a fainting, or loss of consciousness, caused by a
temporary deficiency of blood supply to the brain."
(Webster's New World Dictionary, Second College Edition).
On October 11, 1982, Dr. C. C. Meyers, Jr., whom the Organization
describes as a specialist in Neurology, Beaumont, Texas, wrote the Carrier's
Chief Medical Officer, stating in part:
'Mr. Wiggins states that he has had recurrent episodes
of syncope since 1970. These episodes usually begin with
leg cramps, then he becomes somewhat lightheaded and
then has brief loss of consciousness. No seizure
activity has ever been witnessed. With the last two
episodes, he has been
incontinent, but
this is not typical
of his other attacks. He is somewhat cold and clammy
following these, and is diaphoretic. When he begins to
arouse from the attacks, he can hear but cannot move,
transiently. His last attack was in July of 1982. He has
had possibly four attacks in the last ten years. Most
of the ones in the last ten years have occurred at night
when he was in bed and then when he gets up the syncope
ensues. He had an outpatient CAT scan at St. Elizabeth
and an EEG, both of which were normal.
Award Number 25417 Page 2
Locket Number MW-25475
Impression: I feel that these syncopal attacks may represent either transient arthostatis hyp
reason why he cannot be released to return to work and
normal activities. I have recommended that he discontinue
the Dilantin completely, and will be happy to see him
again should other problems arise.·
The record also contains a letter dated October 18, 1982, addressed
to Carrier's Chief Medical Officer by Dale C. Hager, M. D., P.A., Beaumont,
Texas:
*It is my medical opinion that Michael Wiggins should be
able to return to his normal work duties and activites
based on all the tests performed by me and based on tests
performed by Dr. Clyde C. Meyers, Jr., M.D. neurologist.·
and a letter dated May 19, 1983, addressed to Carrier's Chief Medical Officer, by
Donald R. Webb, M. D., P. A., of Beaumont, Texas:
'Enclosed is a letter that I recently wrote for Mr. Michael
Wiggins. If you need further information please let me
know. Mrs. Wiggins expressed considerable disappointment
in what I had to say. I do feel, however, that this
was as far as I could go in recommending that Michael
return to work. I tried to explain to Mrs. Wiggins that
I am concerned about possible injury to this young man.
As I told her, it is very difficult to quantitate the
increased danger that this man has. Unfortunately, I
think I have lost this family as patients. I do hope
that your company and Mr. Wiggins are able to work out
something to help this young man.·
According to the Carrier, the above-quoted letter of May 19, 1983, contained
the following penned in P. S. ·I talked with Dr. Myers today and he of course
agreed that Michael is an increased risk for climbing.
Following the report of Dr. Meyers, dated October 11, 1982, Claimant
requested that he be allowed to return to work, which request was denied. On
November 2, 1982, the General Chairman of the Organization requested that Claimant's
case be placed won a three panel medical board and he be allowed to see a neutral
doctor in order to resolve his case'. The request was denied, with advice to
the General Chairman that the medical facts were not in dispute, and the Agreement
contained no provision for a three-doctor board.
On December 21, 1982, the General Chairman wrote the Carrier's Assistant
Regional Engineer in part:
Award Number 25417 Page 3
Docket Number MW-25475
·We are presenting to you a claim in behalf of
Assistant B&B Foreman M. B. Wiggins for reinstatement to
his former position with pay for all time lost commencing
November 2, 1982, and to run concurrently until such
time that Mr. M. B. Wiggins is restored to service and
his personal record cleared account him being unjustly
removed from service account of medical reasons.·
The Organization contended on the property and contends before the
Board that the Carrier failed to render a decision on the claim within sixty
days. The General Chairman so advised the Assistant Regional Engineer on February
25, 1983. The Assistant Regional Engineer wrote the General Chairman on March
4, 1983, enclosing what he termed ·a copy of my reply dated February 7, 1983',
in which the claim was denied. The Carrier's highest designated officer of
appeals took the position on the property:
'You have also alleged Mr. Cox failed to decline
claim within the time limit. As you were advised,
Mr. Wiggins' case does not involve an agreement or rule
violation, but is a medical condition being evaluated
by both Carrier and Wiggins' personal physician. As
such, even if claim was not denied within time limit, this
would have no effect on the outcome of Mr. Wiggins release
to return to work.·
The Board does not agree with the Carrier's contention in this respect.
The letter of December 21, 1982, did constitute a claim as contemplated by
Article 15 of the applicable Agreement. The issue before the Board in this
respect is whether the claim was timely denied. In Fourth Division Award No.
3760, with this Referee participating, it was held:
·Many awards have been issued by the different
Divisions of the Board involving the time limit rule of
the 1954 National Agreement. Numerous awards have held
that where the addressee denies receipt of a claim or
a denial within sixty days, it is then the responsibility
of the addressor to ensure receipt by the addressee within
the time limit. See Third Division Awards Nos. 21088,
20763, 18661, 18004, 17999, 16357, 16000, 14354. See
also Fourth Division Awards Nos. 3615, 3234 and 3097.·
In addition to the Awards cited in Fourth Division Award No. 3760, see Third
Division Awards 16163, 16537, 15070, 17227, 17291. We realize that there have
been some Awards to the contrary, holding in effect that mail properly addressed
and placed in the usual location for pickup and delivery, is constructive delivery
of the letter. However, such Awards seem to be in the minority. We are forced
to the conclusion that the Carrier was in violation of Article 15 of the Agreement.
The question then arises as to the proper remedy for such violation. In our
Award No. 24298, we held:
Award Number 25417 Page 4
Locket Number MW-25475
"Many awards have been rendered by this Division
involving late denial of claims by Carriers, especially
since Decision
No.
16 of the National Disputes Committee.
See also Decision No. 15 of the same Disputes Committee.
Decision
No.
16 of the National Disputes Committee, and
awards following the issuance of that Decision, have
generally held that a late denial is effective to toll
Carrier's liability for the procedural violation as of
that date. From the date of late denial, disputes are
considered on their merits if the merits are properly
before the Board.·
There is no denial that the General Chairman received Assistant Regional
Engineer Cox's letter of March 4, 1983, on March 7, 1983. Receipt of that
letter was sufficient to toll Carrier's liability. We find that the proper
measure of damage for Carrier's violation of Article 15, is compensation for
Claimant Wiggins at his straight time rate from November 2, 1982, to and including
March 7, 1983. Again we refer to Award No. 24298. Allowance of this portion
of the claim on the time limit issue has no effect on the merits of the dispute.
As to the merits of the dispute, we adhere to the principle enunciated
in our Awards
Nos.
15357, 18512 and 22553 that the Carrier alone has the duty
and the right to set and enforce medical standards for its employes, and the
right to accept the recommendations of its Chief Medical Officer in such matters.
In
connection with
the request for a neutral doctor determination, we stated in
Award
No.
22553, with this Referee participating:
'The governing collective bargaining Agreement does
not diminish the Carrier's right to determine medical
qualifications of clerks. There has, however, been an
understanding between the Organization and the Carrier
over many years that adjudication of a medical dispute
by a neutral doctor will be provided when 'the findings
of the employee's doctor conflict with those of the Carrier's
doctor.' This understanding only subjects the disputed
medical condition of a disqualified employe to neutral
determination. It does not require the adjudication of
the validity of the standards which the Carrier has the
right to determine.
"The record before the Board does not contain evidence
of a conflict in findings between claimant's physician and
Carrier's physician. There is, therefore, no proper basis
for the Organization's
contention that
the Carrier violated the Agreement when it refused to agree to a neutral
doctor to resolve the issue of claimant's disqualification.·
Award Number 25417 Page 5
Docket Number MW-25475
The above findings are applicable in the present dispute. There is
no dispute that Claimant has had recurrent episodes of syncope since 1970. The
statement of Dr. Meyers, dated October 11, 1982, is clear on this, and Dr.
Webb's statement of May 19, 1983, expressed concern as to the 'increased danger"
that Claimant may present. With this information, the action of the Carrier's
Chief Medical Officer in declining to approve the return of Claimant to service
as a Bridge and Building employe was not arbitrary, capricious or in bad faith,
and the Board is in no position to overturn his decision. We will not award
that Claimant be restored to service or that he be compensated, except for the
period November 2, 1982, to and including March 7, 1983.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties
to this dispute due notice of hearing thereon, and upon the whole
record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively
Carrier and Employes within the meaning of the Railway Labor Act, as approved
June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated to the extent shown in Opinion.
A W A R D
Claim sustained in accordance with Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r = Executive Secretary
Dated at Chicago, Illinois, this 30th day of April 1985.