Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7646
SECOND DIVISION Docket No.
7373
2-MP-Ew -'
78
The Second Division consisted of the regular members and in
addition Referee Robert G. Williams when award was rendered.
( System Federation No. 2, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Electrical Workers)
(
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company unjustly held Crane
Operator J. H- Ross out of service, from June
9, 1975
and
continuous, when he complied with past practice, i.e., submitting
from his personal physician a medical release, but Carrier's
Chief Medical Officer disqualified him for return to service
thereby depriving Mr. J. H. Ross of his contractual rights as a
Crane O.perator at North Little Rock, Arkansas.
2. That accordingly, the Missouri Pacific Railroad Company be
ordered to join with the employes' and initiate a plan the two
(2) physicians agree upon and appoint a neutral physician to
examine Mr. J. H. Ross to determine whether or not he is
physically able to return to work.
Findings:
The Second 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 employe 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.
Claimant, Mr. J. H. Ross, was a crane operator in Carrier's Mechanical
facilities at North Little Rock with an original seniority date of July 12,
1953.
The facts surrounding this dispute are lengthy and many, as we shall
briefly set out.
In Feb-rzary of
1972,
claimant alleges an injury occurred while on duty.
However, he did not make a timely claim with the Carrier's claim department
for any rights he might have had under the Federal Employers' Liability Act.
i
i Form 1 Award No. 7646
Page 2 Docket
No. 7373
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78
Claimant continued working until August 11,
1972,
when he laid off
stating he was physically unable to work. In December of
1972,
he reported
to Carrier advising he desired to return to service. He was then examined
by Carrier's Medical Officer at Little Rock on December
20, 1972,
and
although this examination disclosed Claimant had degenerative disk disease,
Carrier's Chief Medical Officer approved his return to service on December 26,
1972.
Claimant worked a regular shift on December
26, 1972,
but at the end
of that shift, stated he was physically unable to work.
Nothing more was heard from Claimant for over two years until January,
1975,
when Claimant appeared at Carrier's offices and stated he wished to
return to service. Again, he was examined by Carrier's local medical
officer at Little Rock on the date of January
22, 1975.
This examination
disclosed Claimant no longer met Carrier's minimum physical standards, and
he was therefore physically disqualified from service.
In June of
1975,
Claimant again sought to return to service and reported
to Carrier's Medical Officer in North Little Rock on June
27, 1975.
During
this examination, Carrier's Medical Officer reported that Claimant was unable
to lift at all and, by his own admission, he had almost continual low back
pain with radiation to his right leg which was so painful that he had to
sleep on the floor to obtain relief. On July
3, 1975,
Claimant was
disqualified for return to service by Carrier's Chief Medical Officer.
The Claimant's case here is appealed to the Board in two separate
dockets, Docket
7372,
alleging that he should have not been medically
disqualified and seeking compensation for all time lost, and Docket
7373,
requesting that Carrier agree to appoint a three
(3)
doctor panel to
evaluate Claimant's condition.
Carrier has stated that throughout the handling of this case on the
property, they continually advised Claimant that if he wished to pursue
his request to return to work, it would be essential that he have his
personal physician provide Carrier's Medical Department with a write up
outlining his condition and treatment received during the twenty-nine
(29)
month period from August 11,
1972
to January
22, 1975,
the period when
Claimant was absent from work voluntarily. The record verifies that
throughout the local level handling, Carrier made this request and that
notwithstanding the foregoing, the Claimant failed to provide such information.
There is in the record a shift, hand written note from a Veteran's
Administration Doctor dated June
28, 1976
which simply stated claimant
"...had a minor back problem which is well enough to go back to work now,"
however, our review of the entire record discloses that this note was not
made a part of the record while the dispute was being handled on the property
and is consequently improperly before us. However, even if we could
consider this evidence, we do not think. that it meets the request of
Carrier's Medical Department and would b e sufficient for them to make any
evaluation of Claimant's condition. We have long recognized that in cases
Form 1
Page
3
Award. No.
7646
Docket No.
7373
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78
such as this, Carrier has a right to obtain complete medical information
frown an employees physician concerning the nature of his illness and
treatment and that failure to provide this information reulsts in the
employe, himself, precluding his return to service. (See First Division
Award
17
934 and Second Division Award
7171).
The brief note provided by
Claimant certainly does not meet the requirements of the information
requested by Carrier's Medical Department.
In light of the entire record of this dispute, the Board has concluded
that, while it will retain jurisdiction over this case, further data is
needed to permit rendering a final determination on the matter, and
therefore it is remanding this dispute back to the property solely for the
purpose described below.
We direct Claimant, if he still desires to possibly return to Carrier's
service, take iranediate steps to obtain from his personal physician who
treated him during the period of his absence from his assignment from
1972
to
1975,
a complete write up outlining his condition and treatment received
during the twenty-nine
(29)
month period from August 11,
1972
to January
22, 1975.
This write up should be promptly furnished to Carrier's Medical
Department (at the office and location specified by Carrier's Chief Medical
Officer) so that Carrier's Medical Department and its Chief Medical Officer
can make a final determination, on the basis of this clinical information,
as to whether Claimant's condition meets Carrier's minimum physical
standards.
This determination by the Carrier should be made as promptly as possible
and its final decision then forwarded to the Executive Secretary of the
Second Division - National Railroad Adjustment Board for study and
consideration by the Board.
A W A R D
above.
Claim held in abeyance pending receipt of further data as described
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By . t
le~ez
Ros~fnarie Brasch - Administra'°~ive Assistant
Dated at Chicago, Illinois, this 4th day of August,
1978.