Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28798
THIRD DIVISION Docket No. MW-27488
91-3-86-3-740
The Third Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier improperly withheld Trackman P. B.. Martinez from
service for the period beginning September 16, 1985 and extending through
November 11, 1985 (System File 160-22-855/11-1500-20-21).
(2) The Carrier shall now compensate Trackman P. B. Martinez for all
wage loss suffered during the claim period described in Part (1) hereof."
FINDINGS:
The Third 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 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 is employed as a Trackman on the Carrier's New Mexico
Division. On or about June 11, 1985, Claimant requested a leave of absence
from the Carrier for medical reasons. Claimant supplied the Carrier with a
letter dated June 12, 1985, signed by Dr. Jack A. Herrmann, M. D., P.A., a
surgeon, which stated as follows:
"Mr. Martinez is having idcreasing left chest pain involving the. muscle wall a&d shoulder,
he had surgery approximately seven years ago. It is
the result of a work induced injury.
He works as a laborer which continually aggravates this
painful area and I have given him a non-steroidal antiinflammatory drug to use and have asked him to
work for three months, to let his shoulder improve."
Form 1 Award No. 28798
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91-3-86-3-740
The Carrier granted Claimant the leave. June 10, 1985, was the last day he
worked before going on leave.
About three months later, on September 11, 1985, the Carrier received
a copy of its Form 2820-Spl., which is captioned "Certification from Employee's Attending Physician
out with certain information pertaining to Claimant. The Form was signed by a
Dr. Alan Zelicoff and indicated that Claimant was fit to return to work as of
September 16, 1985. The Form indicated that Claimant was taking medication
but stated that the medication would not compromise his health or safety or
require any work restrictions.
Because the Form 2820-Spl. had not been completed or signed by Dr.
Herrmann, who in the June letter had described himself as Claimant's attending
physician, and had requested that Claimant be given the time off in the first
place, the Carrier on September 26, 1985, sent Claimant an-they Form 2820-Spl.
to be completed and returned by Dr. Herrmann.
On October 16, 1985, the Carrier received the form from Dr. Herrmann.
It indicated that Claimant was fit to return to work, but included no entry in
the section which asks about the employee's medications. The Carrier returned
the form to Dr. Herrmann, requesting that he complete that section. The Carrier received the complet
statement, like the earlier one submitted by Dr. Zelicoff, indicated that
Claimant was taking certain medication. Unlike Dr. Zelicoff, however, Dr.
Herrmann stated that the medication should require certain work restrictions.
The Carrier forwarded Dr. Herrmann's fully completed form to its
General Manager's office in Amarillo, Texas, for evaluation. On November 8,
1985, the General Manager approved Claimant's return to work. Claimant was so
notified by the Carrier on November 11, 1985. He returned to duty on November
12, 1985.
The Organization asserts that the Ca;rler unreasonably held Claimant
out of service from September 16, 1985, the date on which Dr. Zelicoff originally indicated he could
eventually cleared to return by the Carrier. The Organization accordingly
demands that Claimant be compensated for all wages he lost during that interim. The Carrier argues t
be liable to Claimant for any backpay.
0
The Organization relies on abundant precedent from this Board and
others holding that, although a Carrier has every legitimate right to satisfy
itself that an employee who has been disabled is-physically fit to return to
his responsibilities, a Carrier may not impose unreasonable delay or expense
upon an employee in the process of doing so. E.g., Third Division Awards
23260, 20419, 20344, and 18797. Those Awards hold that, in such circumstances, the Carrier must cond
within a "reasonable time" or with "reasonable speed." In Award 20419 the
Board stated that a Carrier has:
Form 1 Award No. 28798
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91-3-86-3-740
"The obligation to proceed in a diligent manner with
the medical investigation so as not to jeopardize an
employe's right to return to work or to unduly hold
an employe out of service for administrative reasons."
The Board in Award 20344 explained that "the Carrier is required to move with
reasonable speed after receipt of appropriate information suggesting a return
to service," but "each individual circumstance must be considered upon its own
individual merits."
The Carrier does not dispute the principles laid down in prior cases.
The Carrier contends that it complied with them. The Carrier asserts that it
proceeded diligently in verifying Claimant's medical condition, and that the
delay in returning Claimant to work was not unreasonable under the circumstances. According to the C
factors which were beyond its control and which, if anything, were Claimant's
responsibility. Those factors were: (1) Dr. Herrmann, who identified himself
as Claimant's attending physician when Claimant requested the medical leave,
was not the one to submit the,original Form 2820-Spl. on September 11, 1985;
and (2) when Dr. Herrmann eventually did submit a Form 2820-Spl. on October
16, 1985, it was materially incomplete.
The Carrier's position is well taken in the circumstances of this
Claim. It is clearly reflected on the face of the Form 2820-Spl. that the
form is to be completed by the employee's attending physician. The medical
documentation that Claimant submitted to the Carrier when Claimant went on
leave in June was signed by Dr. Herrmann and identified Dr. Herrmann as his
attending physician. It is not unreasonable for the Carrier to have sought a
statement from the same physician when Claimant indicated he was ready to
return to work. This is not to say that Claimant could not substitute
physicians for good reason during his leave. However, when the Carrier requested that Claimant submi
not object or indicate that Dr. Herrmann was no longer his doctor or no longer
familiar with Claimant's case. Consequently, the Carrier was not unreasonable
in requesting Dr. Herrmann's statement and in waiting to receive it.
Nor was the Carrier unreasonable in requesting that Dr. Herrmann
complete the entire form. The Form 2820-Spl. originally submitted by Dr.
Herrmann omitted any information as to whether Claimant was on medication
which might affect his performance. The statement which Dr. Zelicoff had
earlier submitted indicated that Claimant was on some medication. Indeed,
when the fully-completed form finally arrived from Dr. Herrmann, it showed
that Claimant was taking medication whibh, in Dr. Herrmann's opinion, warranted certain restrictions
The Carrier acted reasonably and withouf undue delay on its part in
reviewing and processing the information it received in this case. As the
Board said in Award 20344, quoted above, "the Carrier is required to move with
reasonable speed after receipt of appropriate information suggesting a return
to service." In previous Awards where the Board has found certain delays to
be excessive, the circumstances have been different and the delays were attributable to inefficiency
Division Award 26056, it was deemed unreasonable for the Carrier to have held
Form 1 Award No. 28798
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91-3-86-3-740
an employee out of service for a month awaiting medical evaluation, after the
employee already had passed a return-to-duty physical and worked without incident for almost two wee
weeks was deemed excessive when, during that interval, virtually nothing was
being done to ascertain the employee's physical fitness.
Here, the Carrier merely sought "appropriate information" about Claimant's condition from Claima
the Carrier's request for that information. Furthermore, the Carrier acted
promptly once it had obtained it. The delay was not the Carrier's fault. It
is attributable to external matters, namely, obtaining a report from the doctor who was caring for C
Therefore, the Claim must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
7 ANancy y1"er - Executive Secretary
Dated at Chicago, Illinois, this 15th day of May 1991.