This Board, after heating upon the whole record and all evidence, finds that the pies herein are Carrier and Employe within the meaning of the Railway Labor Act as amended; that this Board has jurisdiction over the patties and the subject matter of the dispute herein; that this Hoard is duly consti'ated by an Agreement dated July 23, 1982; and that all parties were given due notice of the hearing held on this matter.
Fitrsuant to proper notice dated April 10, 1996, the Carrier charged Claimant, a Track Machine Operator on Surfacing Gang No. 9084, with three separate offenses. First, the Carrier alleged that Claimant submitted a late on-duty personal injury report. Second, the Carrier charged that Claimant falsified an on-duty personal injury. Third, the Carrier alleged that Claimant had not fully completed a Carrier sponsored Back Hardening Program through the Cottonwood Hospital.
Following a lengthy investigation on May 1, 1996, the Carrier assessed Claimant a Level 2 or the Carrier's Upgrade Disciplinary Process. The May 20, 1996 disciplinary letter clearly states the; the discipline was -or Claimant's purported failure to promptly report and to timely file a personal injuryreport. Since the disciplinary letter does not allude to the other two charged offenses, the Carrier apparently either exonerated Claimant of those charges or recognized that the hearing did not acct:mulate substantial evidence to sustain the remaining two charges. Therefore, this Opinion will merely address the charge of alleged failure to promptly submit a report of an on-duty personal injury.
Claimant has worked for the Carrier since 1977. In 1985, he suffered an on-duty injury to his lower back. Thereafter, Claimant experienced periodic back pain.' The Track Supervisor of Gang No. 9084 testified that Claimant started constantly complaining about back pain in the early summer of 1995. The Track Supervisor informed Claimant that the Carrier would attempt to enroll
him in a Back Hardening Program. The Director of Track Programs was ultimately successful in getting Claimant admitted to the Back Hardening Program at the Intermountain Spine Institute at Cottonwood Hospital. Claimant commenced the Back Hardening Program on February 26, 1996 and concluded the program on March 22, 1996.
Near tae -nd of Claimant's participation in the Back Hardening Program, the Track Supervisor and the Dir--etor of Track Programs learned that Claimant intended to file a personal injury report attesting that he had suffered an on-duty personal injury on January 21,1996, while he was working with the gang near Tracy and Stockton, California.
The Director of Track Programs testified that Claimant first raised the allegation that he had been injured while on duty only after a Carrier Claims Agent informed Claimant that he could no longer file a claim based on the 1985 injury. The Director of Track Programs emphasized that, while Claimant stated that he experienced ongoing back problems, Claimant did not mention a specific accident, incident or injury to him during the time the Director was trying to gain Claimant's admtttancetotheBackHardeningProgram. Similarly, the Manager of Track Programs testifredthat although the gang reviewed safety rules, including the rules pertaining to injuries, at a February 20, 1996 s-2n up meeting, Claimant never told the Manager that he had allegedly suffered an on-duty injury. Claimant's immediate Supervisor was not aware that Claimant had ostensibly incurred any injury until mid-March, 1996. The Supervisor denied threatening Claimant to deter him from filing a personal injury report. However, the Supervisor warned Claimant that if he filed a personal injury report he would probably be disciplined for filing a late report.
On April 3, 1996, Claimant completed and submitted a personal injury report alleging that, on January 21, 1996, he injured his lower back while helping a fellow employee lift a derailed buggy.
Public Law Board No. 3241 Page 3The fellow worker vaguely remembered an incident where a buggy wheel had come off the stack. He and Claimant managed to re-ail the buggy? However, the other employee was certain that ;he incident aid not occur on January 21, 1996, but he could not pinpoint the exact time of the Incident.
T he ~ianager of Track Programs researched Carrier records and discovered that the tamping :nacaire was not in use during the period around January 21, 1996 and, on that date, Claimant and other wr rkers were servicing and washing machines at Stockton. The Manager also asserted that it would be impossible for two people to lift the heavy buggy.
The Carrier presented substantial evidence that Claimant failed to promptly file a personal injury report and his inaction (for many weeks) warranted the assessed level of discipline.
The record i s unclear as to exactly when Claimant and his fellow worker purportedly rerailed the bnzSy. In all likelihood, the alleged incident occurred weeks before January 21, 1996. Therefore, when Claimant filed the personal injury report on April 3, 1996, the report was at least :wo and a half months late and potentially three to four months late. The late report, coupled with the vagueness concerning the date of the incident, raised the Carrier's suspicion that the injury might not have occurred= However, this Board need not consider whether Claimant actually suffered a back injury as he retailed a buggy because, as we discussed at the onset of the Opinion, the Carrier did not discipline him for feigning an on-duty personal injury.
Prompt reporting of personal injuries is an essential safety rule that the Carrier must vigorously enforce. Employees are required to report a personal injury when it occurs or as soon as
= The record don not disclose if Claimant and his fellow worker actually lifted the buggy or of they used sown leverage to reran the baggy.
The Carrier'ssnspfdocswereheighteoedbythet)ireaorofTnekPsvgrama»artionthatClaimantspokeabwt the eileged 'st,jary only after CVlssant learned that the statute of limitations bad expired on his 198! injury. Public Law Board No. 3241 Page 4
practical thereafter for several reasons. The rule insures that the employee will receive immediate, necessar- medical treatment, permits the Carrier to correct any hazardous condition and allows the Carrier to investigate the incident while the facts are fresh.
In this case, if Claimant truly injured his back sometime in December 1995 or January 1996, he may very weil have aggravated the condition by continuing to work. By failing to report the alleged injury, the Carrier was deprived of any opportunity to make certain that Claimant received neeessa:v- medical treatment. Also, in this case, it now may be impossible for the Carrier to determine whether or not the injury occurred because, as a consequence of Claimant's late report, most of the facts surrounding the alleged injury are stale. Witnesses' recollections, like the memory of Claimant's fellow gang member, deteriorate over time.
In sum, the Carrier submitted substantial evidence proving that Claimant was late in reporting an alleged persons: injury. The Level 2 on Upgrade was a penalty commensurate with the seriousness of Claimant's offense.