C:\AWARDS\OUT\2-07901.htm

Form l

NATIONAL RAILROt`1D ADJUSTP,1ETTT BOARD Award No. 7901
SECOND DIVISION Docket No. 7902
2-EJ&E-CM-'79

The Second Division consisted of the regular members and in addition Referee Herbert L. Marx, Jr. when award was rendered,

( System Federation No. 6, Railway Employes'

Department, A. F, of L. - C, I. 0.
Parties to Disrnzte: ( (Carmen)

Dispute: Claim of Emuloyes:

( Elgin, Joliet & Eastern Railway Co~npar~y

1. That the Elgin, Joliet & Eastern Railway Company violated Rule

103 ,,Then they refused to have their Chief Surgeon examine Car-man

Painter Arthur L. Powell fox his return to service.

That the Elgin, Joliet & Eastern Railway Company, hereinafter referred to as the Carrier, be ordered to reinstate Cayman Painter Arthur L. Powell, hereinafter referred to as Claimant,, with all seniority, vacation and a71 other rights uniirpaired plus eight hours pay at the pro rata rate for each day that he is wi.th_h.eld from service coYLnnencing, T:iay 13, 1977 until said reinstatement :!_s in effect, in addition to the r^.oney amounts claimed herein, the Carrier shall pay Claimant an additional amount of 6°~, per annum compounded annually on the anniversary date of the claiLm,

2,

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 exnploye within the meaning of the Railway Labor Act as approved June 21, 193+.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

This dispute involves the rights of Claimant to return to work

following his hospitalization from July 12, 176, to July 30, 176. This
matter was covered in Award iTo. `T766 (~vTeiss), in which the claim z-,ras denied_
In the present -dispute there is, however, a diff erence in that the Organi_zai;ion
rests its cla.Ln on the failure of the Carrier to follow the provisions of
Rule 103, which read in part as follows:
Form 1 Award No. 7901 Page 2 Docket No. 7902 2-EJM-CM-' 79
"(b) If the medical findings, of the Carrier's physician and the employe's physician disagree, they shall promptly select a neutral physician who shall be a practitioner of recognized standing in the medical profession, and where any special type of case is involved, he must be a certified specialist in the disease or impairment which resulted in the employe's disqualification. After the neutral physician has examined the findings and conclusions of the Carrier's physician and of the employe's physician, he shall examine the employe. Within fifteen (15) caIendar days after completion of this examination he shall render a written report of his medical findings, which small be controlling. This report shall be made to the Carrier's physician and to the employe. The employe will pay the expense of the physician representing his interest. The Carrier t;rv.11 pay the expense of its own physician. The expense of the neutral ~vri.ll be divided equally between the Carrier and the employe.

In the case where the employe accepted his original disqualif:icat:ion but then, at a later date., presented himself to the Carrier's Chief Surgeon for a reexamination (because he believed his condition had improved and vrarranted his return to service) and the neutral concludes that the Carrier unjustifiably refused to al 1ow the em.ploye to return to service, then, in such a case, the emplo~re will be entitled to be compensated. only for loss of earrings of his assignment from the time said employe presented hinseLf for a reexamination until restored to service."

The facts in Award No. 7766 are nevertheless applicable here. There is no basic disagreement as to the "medical findings of the Carrier's physician and the employe's physician"., which disagreement is a necessary precondition to the implementation of the provisions of Rule 103. The medical findings not in dispute are "S/P Herniated disc L 4-5", a widely recognized condition which is regularly used as a bar to employment and is not unreasonably, applied by the Carrier for the type of work required of its employes. While improvement as to coping with such a condition tray be shown (and apparently was shown in the case of the Claimant herein), there is no indication of change in the underlying physical findizigs. With this conclusion, the Board reaches the same point as it did in Award No. 7766; i.e.,, that "we find no basis to support the contention that Claimant was improperly disqualified for service cornmenci.ng August 3, 176," or that e.>:axninations by the Carrier's physician and possibly a neutral physician under Rule 103, were improperly denied. Form 1 Award No. 7901
Page 3 Docket No. 7902 2-EJ&E-CM- `79

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTP= BOARD By Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board By ~-r.~.._P=.~..--c . :a. . ~~ s ~c~ax9_e Bx asch -- Adananistrative Assistant Dated at `Chica_;o, Illinois, this 19th day of April, 179.