Award Nos. 3 & 4 Case Nos. 3 & 4 PUBLIC LAW BOARD NO. 4178 BROTHERHOOD OF LOCOMOTIVE ENGINEERS VS. Parties to Dispute CSX TRANSPORTATION, INC. (Former Seaboard System Railroad, Former Louisville and Nashville Railroad company) STAT124ENT OF CLAIM: 11 (Claim No. 3) Claim of Engineer T. R. French, NC&STL Seniority District #4, Nashville Division, that he be allowed a physical examination in accordance with the provisions of the August 1, 1981, Physical Examination Agreement." "(Claim No. 4) French, T. R., Engineer, NC&STL Seniority District #4, Nashville Division, claim for lost time account of beizig held out of service by Chief Medical Officer C. A. Mead, the first and second payroll periods of January and the first pay period of February, including the months of March through May, 1984.1' FINDINGS Upon the whole record and all the evidence, the Board finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended, and that the Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter. Claimant entered the Carrier's service as a train service employee in 1970. Subsequently he entered the Apprentice Engineers' Program and on February 5, 1979, was promoted to position of Locomotive Engineer on the Nashville Division of the former L&N Railroad. 1 image: ------- on August 13, 1982, the Carrier's Chief Medical Officer advised Claimant that he was disqualified from service due to high blood pressure pending treatment and evidence that the condition was under control. He returned to work on October 4, 1982 and performed service until October 30, 1983. He underwent surgery identified as Ilaortofemoral bypass and left renal bypass graft" on November 8, 1983. This was Claimant Is second bypass surgery procedure, the first having been performed in 1977. Following evaluation of medical reports, the carrier Is Medical Examiner advised Claimant on December 21, 1982, that he was medically disqualified from further service as locomotive engineer. The BLE General Chairman was so advised under the 1981 Physical Examination Agreement reading in part as follows: 115. Any employee hereunder, who in the Company Is opinion fails to pass a Company physical examination may within fifteen (15) days, at his option, have a review of his case in the following manner: (a) In the event the Chief Medical Officer determines that an employee's physical condition is such that it will interfere with the safe performance of his duties, the Chief Medical Officer will report his findings to the Carrier and if it is decided the employee should be removed from the service, the department head will notify the employee and his General Chairman.,, The General Chairman appealed this decision and named a physician to carry forward the following provisions of the 1981 Agreement: (b) An employee who is removed from the service account of his condition may appeal from an adverse decision of his department head through his General Chairman, provided he presents his General Chairman with evidence of a thorough examination by a recognized physician, subsequent to his rejection, which examination 2 image: ------- shows conclusions contrary to those on which his rejection from service was based. If the decision is appealed, the employee involved, or his representative, will select a physician to represent him notifying the Director of Labor Relations accordingly, and within f if teen days after such notification, the Director of Labor Relations will select a physician to represent the Company in conducting a further physical examination. The two physicians thus selected will examine the employee and render a report within a reasonable time, not exceeding fifteen days. If the two physicians thus selected shall agree, the conclusions reached by them will govern." The Carrier rejected the General Chairman's request for a medical panel on the premise that there had been no evidence furnished of an examination showing conclusions contrary to those on which the disqualification was based. The record indicates that what was furnished was a statement from Claimant I s surgeon stating that Mr. French was "recovering nicely from his procedure [and) ... I see no contraindication to his performing his normal duties as a locomotive engineer." In March of 1984, Claimant filed a complaint against the Carrier with the Department of Labor, incident to his not being permitted to return to work. Handling with the Department of Labor resulted in a physical examination by a physician in Nashville who reported in part as follows on October 9, 1984: 14 .... Mr. Thomas French can be employed though the restrictions of a train engineer as imposed by the company and the industry probably would rule him out as a candidate for this position. He certainly would be capable of being retrained for less risky jobs with his coronary artery disease. It should be of modest or limited physical requirements ... 11 The Department of Labor did not pursue the complaint and 3 image: ------- Carrier agreed to consider Claimant for other positions but he was not interested. Subsequently, the General Chairman again requested establishment of a medical panel, which request was again denied by the Carrier on premises previously stated. The parties ultimately agreed to submit the matter to this Board for decision, the claims for our consideration being identified in the "Statement of Claims" above. The record in this case shows that the Carrier's Chief Medical Examiner wrote Claimant on February 4, 1987, advising that he would be considered for unrestricted service provided his physician furnished results of recent tests, medical history, evaluations, etc. With letter of March 3, 1987, this data was furnished to the Carrier, and on May 5, 1987, Claimant was advised that he was found medically qualified to return to service as engineer conditional upon follow-up reports every three months. Accordingly, Claim No. 4 covers the period from January, 1984, until May 5, 1987. It is the position of the Employees that Claimant should have been examined by a two or three doctor panel as initially requested. They state the 1981 Physical Examination Agreement provided a means to redress an adverse decision. They state Carrier's denial of the request was without basis because it is evident Claimant's doctor had conducted a thorough physical examination and his opinion was contrary to that of the Carrier's Medical Examiner. The Employees also state that when they again requested a medical panel, the Carrier arbitrarily denied their 4 image: ------- request and continued to violate Article 5(b) of the Physical Examination Agreement. The Employees state that when they continued to pursue their request under the 1981 agreement, they furnished formal statements from Dr.(s) Wray and Finch that Claimant should be returned to service as locomotive engineer without restriction. Nevertheless, the Carrier's Medical Examiner did not approve Claimant's return to service and did not provide the organization with medical evidence to support the disqualification or denial of request to establish a panel. Award 65 of Public Law Board 1241 is cited in support of this point. The Employees argue that Carrier's Medical Examiner never examined Claimant, so his disqualification could not have been based on competent evidence. It is also alleged that the Medical Examiner seemingly challenged the veracity of his professional colleagues. This resulted in an unjust delay of Claimant's right to be examined by a panel and deprived him of his seniority and gainful employment, say the Employees. It is the Carrier's position that Claimant did not meet its medical standards during the period in question. The record shows he had two bypass procedures and a diagnosis of coronary artery disease. No doctor who treated him asserted any contrary conclusion to that upon which his disqualification was based. Thus, says the Carrier, the 1981 Agreement did not require that a medical panel be assembled. The pertinent provision reads as follows: 5 image: ------- 11 .... provided he presents his General Chairman with evidence of a thorough examination by a recognized physician, subsequent to his rejection, which shows conclusions contrary to those on which his rejection from service was based." The Carrier also points out that an interpretation of the 1981 Physical Examination Agreement, signed February 12, 1987, supports its position with this language: "It is the prerogative of the Carrier to establish reasonable medical standards for its employees and this Section 5 shall not be construed as a means to challenge such standards." The Carrier argues that it has not only the right but also the obligation to implement reasonable standards for its employees, giving consideration to the individual, fellow employees and the public at large. Claimant was handled the same as others under the Carrier's medical policy. Also, says the Carrier, the 1981 agreement does not guarantee that every case involving a medically disqualified engineer will be taken to a two-doctor panel, but only in those cases where evidence of a thorough examination by a recognized physician shows conclusion contrary to those upon which rejection was based. The Carrier also cites several decision of Public Law Boards on this property which are stated to recognize the right to establish and implement reasonable medical standards for its employees. This Board holds, as has been held in many awards, that it is and should be the right and obligation of a Carrier to establish and maintain medical standards for the craft or class of employees. 6 image: ------- It has also been held that these standards must be reasonable and applied uniformly. Nevertheless, the pivotal question in this case is whether or not there was compliance with a specific agreement covering such matters, i.e. , the Physical Examination Agreement effective August 1, 1981, quoted, in part, earlier in this Award. It is our interpretation of the above provision that there must be a medical dispute as to the condition on which the disqualification was based if a medical panel is to be established. The language requires that a thorough examination by a recognized physician show conclusions contrary to those on which the rejection was based. Claimant produced no evidence of a thorough examinations showing "conclusions contrary...," etc. Brief statements from physicians stating to the effect that he was "recovering nicely" and "no contraindication" to returning to work do not fulfil what is required by the 1981 Agreement before a medical panel is created. It is noted that when Claimant took the matter up with the Department of Labor, the physician who examined him stated on October 9, 1984, that 11 .... the restrictions of a train engineer as imposed by the company and industry probably would rule him out as a candidate for this position." It was not until the Carrier received report of March 3, 1987, that its Medical Examiner had solicited, that any detailed information was furnished. The Carrier then returned Claimant to work on May 5, 1987, as his condition apparently had improved. We hold that the Carrier did not err in refusing to create a 7 image: ------- medical panel ,under the 1981 Physical Examination Agreement. Accordingly, Claim No. 3 is denied. In view of the above, Claim No. 4 is denied except for the period March 17, 1987 to May 5, 1987. our finding here is that the Carrier's Medical Department should have been expected to rule upon the data received within two weeks as opposed to two months. Our decision on this point is consistent with paragraph 5(e) of the 1981 Agreement. AWARD As indicated above. ORDER The Carrier is ordered to make this Award effective within 30 days of the date shown below. Employee Member 'Ea-Tier' "er Chair'man and 6butral Member Dated at Jacksonville, Florida, 1990 |