Award No. / 4D Case No, 10

Org. tile LA 76-38-Yed. Co. File 011-221 (W

Public Law Board No. 1922

PARTIES To DISPUTE: United Transportation Union (Switchmen)
                    and Southern Pacific Transportation Company

STATEMENT OF CLAIM: Claim is made for loss of earnings OF beginning July 8, 1976, loss of holiday  pay during the period involved, and for vacation credits lost for each day beginning July 8, 1976 for Switchman P. P. Carone, Los Angeles Yard.

FINDINGS: While a switchman in Carrier's employ, claimant suffered a heart attack in May 1975; he under-went coronary artery surgery on February 17, 1976.

On July 8, 1976, claimant reported for duty in Los Angeles Yard and furnished a letter dated June 4, 1976, from his attending physician, Dr. Harry Green, stating that "He is able to return to work - full-time without restrictions, as of 7/l/76.' Carrier advised claimant at that time that he would be withheld from service pending an evaluation by Carrier's Chief Medical Officer, Dr. J. E. Meyers.

By letter of September 3. 1976, Carrier's Medical Department was informed by Dr, Jerome Kay, a specia- list in cardiovascular surgery, that 'he saw no reason why claimant cannot return to work at his original position. At this time he appears to have had a good result from his sur- gery." A copy of the operative nota on claimant was enclosed in that letter.

In a letter of September 10, 1976, Dr. John Camp, Director of Coronary Rehabilitation at the Hospital where claimant had been operated on, advised Dr. Meyers of details concerning claimant's physical condition. Dr. Camp made the following observations:

'Assessment of Mr. Carone's physical work capacity at this time is that he is capable of safely performing moderate levels of physical exertaion (3-4 METS) continuously, for 8 - 10 hours at a time without impairment or cardiovascular symptomatology. Furthermore he is capable of brief periods of severe physical exertion (6 METS) for brief periods, probably not exceeding 2 minutes."

Dr. Camp concluded that 'These levels of exertion far exceed that required to perform his usual duties as a foreman at the Southern Pacific Yard. Furthermore Mr. Carone's prognosis, in light of his successful surgery and his current rehabilitation status, is excellent, and his risk of recurrent infraction or sudden death is minimal, and does not greatly exceed that of the general population in his age group." Dr. Camp went on to recommend that claimant "be returned to full employment, without restriction or limitation, in his former position, as a foreman, or to any position requiring physical exertion equal to or less than his former position.'

On November 18, 1976, after Dr. Meyers had reviewed the matter, claimant was released for service but subject to restrictions. Claimant declined to accept employ- ment on a limited basis.

Letters were also submitted to Carrier from Dr. Joe Wong on June 20, 1977 and Dr. Herbert Rubin on July 12, 1977, Both physicians are specialists familiar with claimant's condition and recovery. Each asserts that claimant is physically fit to return to his position without restrictions. One of Dr. Rubin's points is that claimant completed physically exacting stress tests during cardiac rehabilitation and is a safer employment risk than many in his age bracket who have not been as carefully studied and stress tested.

The record establishes that Carrier has agreed to limit its right to determine whether an employee is physically fit to return to work. Agreement YDM 1-32OF effective September 14, 1959, provides that 'where a question arises' involving physical fitness of a switchman to return to duty, it will be submitted to a three-doctor board con- sisting of one of Carrier's physicians, a physician selected by the employee and a specialist appointed by the other two doctors. The Agreement stipulates that 'The findings of the majority of those doctors 'will govern the right of the switch- man to return to duty,"

Petitioner has requested that a YDM 1-320 board be established to decide whether claimant is fit to return to a switchman position. Such a request was made first by the Local Chairman in a letter of December 1. 1976 and then an a higher level by the General Chairman on January 11, 1977. It was denied by the Manager of Personnel on the ground that "the Company's medical policy cannot be overridden by a panel of dotors" since there is no dispute as to claimant's medical problem.

We do not agree with Carrier that it is empowered, as a general proposition, to determine unilaterally any dispute as to whether or not an employee is physically fit to return to work after an illness or injury. Under the terms of YDM 1-320, it has committed itself to procedures that call for a three-doctor board to resolve that dispute once it is ascertained that a question has arisen as to physical fitness.

Heart ailments are not excepted from YDM 1-320's scope. The dramatic progress made in treating and rehabil- itating heart patients in recent years has done away with the old notion that an employee who suffers a heart attack can never again occupy a position involving physical labor.

YDM 1"320 must be considered realistically in the light of Carrier's enormous responsibilities for safety. Before a question can validly be held to have arisen within the meaning of that agreement, it must be shown that the physicians supporting the claim are familiar not only with the employee's medical history but with all the physical duties and pressures of the position he seeks, That burden of proof will ordinarily be relatively easy to meet where employment in clerical, administrative, restricted duty or certain types of maintenance of way or shop craft positions are concerned. It may be more involved, however, where it relates to the reinstatement of a man with fairly recent major heart illness and surgery to a position that deals directly with train movements,

We are not satisfied that the present record shows that claimant's physicians are fully aware of the demands, in terms of physical labor and pressures, of a switchmen position. Nor is it clear, under the circumstances, that it is unreasonable for Carrier to wait at least two years after claimant's coronary by-pass surgery before empanelling a medical board to determine whether claimant is fit to work as a switchman on an unrestricted basis.

We of course are not disputing any of the medical testimony that has been presented in this case. Our conclusion is simply that no question has arisen as yet that requires Carrier to refer to a medical board the matter of determining whether or not claimant can perform switching in its railroad yards.

AWARD: Claim denied.

Adopted at San Francisco, California, September JA r 1977*

Chairman Haroll M. WestoA.

'L ( @ I AA@r_ Carriff Member 11 EMPloyee Member %wf