IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY
NATIONAL AUTOMOBILE, AEROSPACE,
TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA)
RE: GRIEVANCE OF CAR MECHANIC "C"
Sole Arbitrator: Michel G. Picher
Appearing For The Union:
Brian McDonagh – National Representative
John Burns – Vice-President, Local 100
Paul Caines – Grievor
Appearing For The Company:
Patricia Payne – Manager, Labour Relations, Edmonton
Doug Fisher – Director, Labour Relations, Montreal
Dr. Claude Lapierre – Chief Medical Officer, Montreal
Dr. Andreas Wielgosz – Cardiologist, Ottawa
K. Smolynec – Sr. Manager, Occupational Health Services, Montreal
François Galarneau – Technical Supervisor, Montreal
A hearing in this matter were held in Montreal on May 8, 2006
The instant grievance concerns the medical fitness of the grievor, Car Mechanic "C". It is not disputed that the grievor is medically fit to perform his normal duties as a car mechanic, duties which are largely not safety sensitive. The grievor maintains, however, that he has been improperly prevented from being awarded secondary assignments as a crane operator in wrecking service. The Company maintains that the grievor's medical history and ongoing cardiovascular condition are an impediment to his being able to perform the safety sensitive duties of a spare mobile crane operator.
The nature of the dispute is reflected in the ex parte statements of dispute and statements of issue filed separately by the parties. Those statements read as follows:
DISPUTE – UNION:
On June 26, 2003, CN Rail disqualified Car Mechanic "C" from holding the Spare Mobile Crane Operator's position outlined as position "A", … for unspecified "medical reasons".
UNION'S STATEMENT OF ISSUE:
In 1995 "C" suffered a myocardial infarction as well as subsequent angina in 2000.
On March 27, 2003 "C" was the successful applicant to …, the position of Spare Mobile Crane Operator, Position "A".
In a letter dated June 27, 2003 CN Rail refused to award the position of Spare Mobile Crane Operator, Position "A" as advertised in …, to "C" for unspecified "Medical Reasons".
On July 30, 2003 "C" delivered a copy of a letter dated July 27, 2003 from Cardiologist J. Surkes to CN Medical Services, which indicated his Cardiologist's support of "C" stating, among other things:
"I have few reservations in stating that [C] is medically fit for any job he wishes to perform."
In addition, "C" requested that CN rescind the disqualification and allow "C" to be assigned to the Spare Mobile Crane Operator assignment.
On September 11, 2003, the Union filed a Step II grievance claiming that the professional medical opinion and supporting medical diagnosis from Cardiologist Jan Surkes should have alleviated any medical concerns CN may have. In the grievance, the Union requested that "C" be allowed to assume the duties of Spare Mobile Crane Operator and that he be compensated for any and all lost overtime from July 27, 2003 as a result of the disqualification.
On October of 2003, Medysis advised CN that "C" was unfit to perform on a Safety Sensitive position.
In the Company's Step II reply, dated November 14, 2003, the Company denied the Union's appeal stating that the Company could not alter a decision of Medysis (the Company's Medical Agent).
To date the issues preventing "C" from being awarded the position of Spare Mobile Crane Operator, Position "A" as advertised in …, have not been resolved.
DISPUTE – COMPANY:
The decision of the Company's Chief Medical Officer to find Car Mechanic "C" unfit for the Safety Sensitive assignment of Spare Mobile Crane Operator.
COMPANY'S STATEMENT OF ISSUE:
In 1995 "C" suffered a myocardial infarction as well as subsequent angina in 2000.
On March 27, 2003 "C" was notified he was the successful applicant to the safety sensitive secondary assignment position of Spare Mobile Crane Operator. The results of the required pre-placement medical examine [sic] indicated multiple cardio logical [sic] risk factors. Upon reviewing the results of the consultation reports, the Company’s consulting physician in Vancouver, Dr. Kennefik, and the Company Chief Medical Officer, Dr. Lapierre, would not support C's fitness for duty in a safety sensitive position.
On August 7, 2003 "C" provided a copy of a letter dated July 27, 2003 from Cardiologist J. Surkes that indicated this cardiologist's support of "C" fitness for duty on any position. Based on this, "C" requested that CN Occupational Health rescind the "disqualification" and allow him to be assigned to the safety sensitive Spare Mobile Crane Operator assignment.
On September 3, 2003, Dr. Lapierre wrote to Dr. François Sester, Cardiologist, requesting that he review of the medical information on "C" and to provide his professional medical opinion of the fitness for duty of "C" for the Spare Mobile Crane Operator position.
On September 11, 2003, the Union filed a Step II grievance, contending that the professional medical opinion from Cardiologist Jan Surkes should have alleviated any medical concerns CN Occupational Health may have and that "C" was being held from a position that may have a substantial opportunity for overtime. The Union requests that "C" be allowed to assume the duties of the safety sensitive Spare Mobile Crane Operator, and that he be compensated for any and all lost overtime from July 2, 2003 as a result of the "disqualification".
On October 15, 2003, Dr. Sester wrote, concurring that, in his opinion, "C" was presently unfit for the position of Spare Mobile Crane Operator.
Based on the concurrence of Dr. Sester, Dr. Lapierre maintained that "C" was unfit to work in the safety sensitive position of Spare Mobile Crane Operator position.
In March 2005, Dr. Lapierre requested Dr. Andy Wielgosz, Cardiologist, to review the medical information on "C" and to provide his professional opinion on the fitness for duty of "C" for the Spare Mobile Crane Operator position. Dr. Wielgosz also concurred that "C" was, based on the 2003 information, unfit for the position of Spare Mobile Crane Operator. Dr. Wielgosz suggested that current medical information be obtained to see if "C's" condition and modifiable risk factors were under satisfactory control. "C" refused to provide more current information.
The Company maintains that the medical determination that finds "C" unfit for a safety sensitive position has been appropriately determined based on a bona fide medical assessment.
The grievor entered the service of the Company in March of 1974 as a car mechanic. He suffered a heart attack in 1995, at the age of 38. He subsequently developed angina in 2000.
In March of 2003 the grievor successfully bid a bulletined position as Spare Mobile Crane Operator, for a secondary assignment. The mobile crane he would operate is described as being an approximately 214 ton unit used to lift rail cars at the site of derailments or other repair operations, as required.
Prior to undertaking his functions the grievor was required to undergo a medical consultation and certain medical testing. It does not appear disputed that such medical fitness tests are routine before entering into a safety sensitive position. On April 10, 2003, "C" attended at the Company's Occupational Health Services provider where he completed a Pre-Placement Health Assessment Questionnaire on which he declared that he had been treated for heart disease. As a result the Company's physician, Dr. Kenefick referred him to a cardiologist for further testing. Tests were performed at the Langley Memorial Hospital by Dr. D.E. Chandler on May 5 and May 28, 2003. Following the tests Dr. Kenefick recorded his concerns about a number of risk factors which the grievor presents. Among those he noted the myocardial infarct and stenting, as well as the grievor's obesity, the history of heart disease in both of his parents, his high blood pressure and hyperlipidaemia. It appears that the grievor declined to undergo further testing with respect to gauging lipid levels, apparently admitting that he had high levels but did not wish to take the medication for it, which might cause arthritis.
As a result of the foregoing, Dr. Kenefick communicated with the Company's Chief Medical Officer, Dr. Claude Lapierre. He advised that the grievor had six risk factors which he characterized as multiple cardiological risks with a 23% probability of occurrence on an annual basis. After some further exchange of information, on June 26, 2003, the Company's medical provider, on behalf of both Dr. Kenefick and Dr. Lapierre, stated that they could not support C's fitness for duty in a safety sensitive position. Based on the foregoing the grievor requested to obtain his own physician's opinion, with a referral to his own cardiologist.
The grievor was thereafter referred to cardiologist Jan Surkes. In her initial report to his family physician she stated, in part, "I have few reservations in stating that [C] is medically fit for any job which he wishes to perform. Unless he develops a change in symptoms, his risk for ongoing difficulties is in the range of 5 to 10% per year. He is on excellent medical therapy which is currently being optimized." It appears that following that opinion Dr. Surkes subjected the grievor to a further exercise test to determine whether she could rule out the "few reservations". As a result of these further exercises she issued an additional report which essentially stated, in part: "I have no reservations about supporting him in pursuing whatever form of work he wishes to pursue." It also appears that the reporting letter of Dr. Surkes disclosed a new diagnosis of diabetes obellitus Type II.
In light of the information received, the Company's Chief Medical Officer sought the opinion of cardiologist and Professor of Medicine of the Université de Montréal, Dr. Francois Sestier. In a letter dated October 15, 2003 Dr. Sestier, who was provided with the reports of Dr. Surkes, stated, in part:
I totally agree with your letter dated September 3, 2003 that [C] is presently unfit for a Safety Critical Position of the kind of crane operator:
– He had an MI before age 40, which makes his prognosis 5 times worst that than if he had his first MI 20 years later,
– He has a strong family history,
– He had a progression of his coronary disease between 1995 and 2001, in spite of the medication,
– He had an uncontrolled blood pressure of 150/95 on July 27, 2003,
– His LDL cholesterol was recently superior to the guidelines for coronary patients,
– His low LVEF makes his prognosis twice worst than if he had a normal LVEF,
– The association of diabetes mellitus in a young adult of 47 y.o. associated with heart disease makes prognosis of that coronary heart disease twice worst than if he had not diabetes mellitus.
I consider that the risk of sudden impairment of [C] for his type of position is anywhere between 10 and 20% A YEAR.
In the following spring Dr. Lapierre requested a further expert opinion from Dr. Andy Wielgosz, head of the Division of Cardiology, the Ottawa Hospital – General and Riverside campuses, and Professor of Medicine at the University of Ottawa. The report of Dr. Wielgosz, dated April 13, 2005, reads in part as follows:
On balance, given the favourable exercise test results but depressed left ventricular function and unfavourable (for recurrence) risk profile, I would place his risk of sudden incapacitation at that time as between 2 and 5% over the ensuing year.
The next issue is what is the acceptable level of risk. I have not seen this defined explicitly for the specific job in question. In the assessment of airline pilots, a 2% threshold is applied for independent piloting. At a level of risk from 2 to 5% a co-pilot is required. If we apply the same criterion here, which I would consider very reasonable given the job description, [C] would be unfit to work alone as a Mobile Crane Operator. I consider that an appropriate decision at the time. [sic]
It does not appear disputed that the maximum risk factor standard which the Company generally applies with respect to placing an employee in a safety sensitive position is at the level of 5.5%. A person having a higher risk factor of experiencing a disabling incident while at work in the space of a year is subject to not being placed in a safety sensitive position unless further individual examination justifies such an assignment. As is evident from the foregoing account of events, the five separate physicians involved in assessing the grievor gave assessments of the risk factor per annum for him ranging from 2% to 23%. While the lowest appears to have been Dr. Wielgosz, at 2% to 5%, his report is clear that he does not consider that the grievor is medically fit to perform the safety sensitive duties of a crane operator. The specialist of the grievor's own choosing, Dr. Surkes, assessed his risk factor per annum at between 5 and 10%.
The Union's representative submits that greater credibility should be given to the grievor's personal cardiologist, and that the opinions of the other physicians should be discounted. In that regard he questions their objectivity, to the extent that they have been retained by the Company for their opinions. He also stresses that Dr. Surkes is the only physician who actually examined the grievor directly, whereas Dr. Kenefick, Dr. Lapierre, Dr. Sestier and Dr. Wielgosz all based their opinions on the medical record, including the report of Dr. Surkes.
The Arbitrator has some difficulty with the position advanced by the Union. Firstly, there is no significant basis upon which the Arbitrator can conclude that the standard adopted by the Company, namely a 5.5% risk factor as the limit of acceptability, is inappropriate, arbitrary or discriminatory. While it is open to the Union to attack that standard, it must surely do so on the basis of some expert evidence or professional opinion which would give a basis to reject the Company's approach. As the Company's representative argues, the employer has little or no interest in keeping any employee from gainful and productive service. It does, however, have a high interest in ensuring the safety of all of its operations and the well-being of its employees, particularly those who work in a safety sensitive environment. It is not disputed that railway wreck sites, where the grievor would be called upon to work, are intrinsically dangerous places where employees can work long hours in difficult and hazardous conditions. I have no difficulty accepting that in that circumstance it is legitimate for the Company to avoid the assignment of any individual who poses an unacceptable level of risks of impairment by reason of any medical condition.
What does the record in the instant case disclose? Significantly, in my view, the grievor's own personal cardiologist, Dr. Surkes, reports that in her opinion "C" stands at a 5% to 10% risk factor per annum. That is to say that the grievor's own specialist places him above the cut off point established by the Company as constituting an acceptable risk. At least three other of the physicians involved placed him at even higher rates of risk. In the result, even if I should accept the opinion of Dr. Surkes as being preferable, she places her patient at a position of the risk of recurrence of a heart attack at a point which is above the acceptable standard. While it may be that the grievor performed well on the stress tests administered on a given day by Dr. Surkes, it is not his condition on that day which is determinative for the purposes of this grievance. What is significant is the ongoing level of risk which he represents. It does not appear disputed that by reason of his suffering a heart attack at a young age, coupled with other physical attributes and medical conditions, including high blood pressure, the grievor represents an ongoing risk at a level above that which is acceptable in a safety sensitive position.
The Arbitrator well appreciates the perspective of "C" and his Union. He has apparently functioned well and without any medical incident in the three year period since the denial of the position which is the subject of this grievance. Be that as it may, however, those facts do not change the risk factor level which he carries with him now, and always, absent a new and different diagnosis which would indicate a radical change in his overall condition. As unfortunate as this result may be, the Arbitrator cannot ignore the over-arching responsibility of the Company to ensure safe operations and, in that endeavour, to avoid any conscious unacceptable level of risk.
In the result, the Arbitrator can find no violation of the collective agreement in the decision taken by the Company with respect to the limits to be placed upon the grievor as regards safety sensitive work. The standard which the Company applied and the evidence upon which it based its opinion are, in the Arbitrator's view, legitimate and well established. Indeed, they are essentially supported, albeit indirectly, in the assessment of the grievor's own cardiologist.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Ottawa this 15th day of May 2006.
MICHEL G. PICHER