Exhibit J - March 1, 1963-Denial of Appeal-Assistant

Chief Engineer to Vice Chairman.

Exhibit g- March 20, 1963-Appeal-Vice Chairman to Chief

Engineer.

Exhibit L - April 4, 1963-Denial of Appeal-Chief

Engineer to Vice Chairman.

Exhibit M- April 11, 1963-Appeal-Vice Chairman to

Director of Personnel.

Exhibit N- June 7, 1963-Denial of Appeal-Director of

Personnel to Vice Chairman.

Exhibit 0 - July 10, 1963-Letter-Vice Chairman to

Director of Personnel.

Exhibit P - July 17, 1963-Affirmation of Denial-Director

of Personnel to Vice Chairman.

(Exhibits not reproduced,)

OPINION OF BOARD: The issue in this case is whether Carrier, wrongfully, found Claimant to be physically disqualified for all service.

That a wrongful physical disqualification may be found by this Board to be a violation of an agreement, without specific provision therein, has been established in Gunther v. San Diego & Arizona Eastern Railway Company, 382 U.S.257.

THE PACTS

Claimant holds seniority in the Track Department as a laborer with seniority date of October 23, 1950; and, as an assistant section foreman with a seniority date of April 6, 1953.

On June 22, 1961, Claimant alleged that while working as an assistant foreman and while in the process of assisting in lifting a 39-foot rail, he sustained injury to the lower portion of his back. He lost no time as a result of the incident. However, thereafter, he initiated an action against Carrier, for damages, in a United States District Court. The action was settled on November 29, 1962, the amount of settlement being $3500.

Of great evidentiary weight is Carrier's recitation in its Submission as to what occurred during the settlement conference, which stands undisputed in the record:

"At the conference the claimant stated that his back still bothered him at times and he claimed that he had difficulty performing some of the heavier duties usually performed by an assistant section foreman while working with his gang. He said he had been accordingly confining his activities to `light' work. This, incidentally, was done without the Carrier's knowledge or consent. At this conference the claimant's attorney (Mr. Balzarini) provided the Carrier's representative with copies of two reports from the claimant's personal physician, Dr. Mayer S. DeRoy, an orthopedic specialist of Pittsburgh. In the earlier of these reports, dated September 22, 1961, the claimant's doctor stated that the claimant had an `osteoarthritis of the lumbar spine of long standing' which had been made `clinically active and symptomatic.' He advised that the claimant should 'continue to do light work' and that he was not in condition to return to heavy labor and that the question of his physical ability to do so was not clear. The second report made by Dr. DeRoy on October 25, 1962, as a result of a physical examination conducted the same day, concluded that there was no change in the claimant's physical status ....

The Carrier's representative, at the conference referred to, informed the claimant and his attorney that the only medical report the Carrier had as to the claimant's alleged back injury was a report from the Carrier's local Company doctor at Dillonvale, Ohio, a general practitioner, such report being dated June 22, 1961. The Carrier's representative further informed the claimant and his attorney that in view of Dr. DeRoy's report and the limited information contained in the Carrier's files, he (the Carrier's representative) questioned the ability of the claimant to perform the laboring duties customarily performed by an assistant section foreman while working with his gang. The Carrier's representative further advised that he felt the claimant's physical qualifications to work should he passed on by the Carrier's Medical Director. Neither the claimant nor his at-

torney objected and the following day, November 30, 1962, the claimant was advised that he was being withheld from service pending physical qualification by the Carrier's Medical Director."

Pursuant to direction of Carrier's Medical Director, Claimant, on December 3, 1962, was examined by Dr. Karl S. Alfred, a specialist in orthopedics. Dr. Alfred also arranged for X-rays of the Claimant's back which were examined by a specialist in that field. On December 4, 1962, Dr. Alfred submitted to Carrier's Medical Director the findings of the examinations and his diagnosis and prognosis in which he concluded:

"This man has a rather severe degenerative process between L-3 and L-4 and L-5 and sacrum. This is of long duration. Such a back may go along quite well with no discomfort, but it does not take much to make it symptomatic and then incapacitation may be quite severe. I would advise caution in this man's activities and I think he is a poor risk for any activity requiring any bending or lifting."

In substance the findings of Dr. Alfred confirmed those of Claimant's own doctor, Dr. DeRoy, also an orthopedic specialist. Dr. DeRoy first examined Claimant on September 22, 1961-three months after the date on which Claimant alleged he was injured. He concluded:

"This man should continue with light work, inasmuch as he has shown his desire to continue working in spite of residual complaints. He is not in condition to return to heavy labor at this time, and the question of physical ability to do so is not clear at present."

On October 25, 1962-a month before the conference during which Claimant's action in damages was settled-Dr. DeRoy re-examined Claimant and concluded:

"This man's present status is similar to that of previous examination, there being apparently no change."

With the reports of Dr. DeRoy and Dr. Alfred before him, Carrier's Medical Director found Claimant physically disqualified for all service. Upon receipt of notice of the disqualification, Claimant caused himself to be examined by three doctors, each a general practitioner, one of whom was his personal physician. The scope of their respective clinical examinations is not revealed. In brief statements of conclusion, not supported by facts, we find the following:

Dr. Martin:

"It would be my opinion that he (Claimant) is physically able to work."

Dr. Brettell:

"He (Claimant) has no complaints and his examination would suggest that he is physically able to work."

Dr. Heeley:

"He (Claimant) has no pain on bending, lifting or walking and he

is able to do any kind of work."

Pointing to the afore three statements, the Organization made demand upon Carrier to withdraw its findings of physical disqualification and to make whole Claimant for loss of wages flowing from the finding. Carrier refused.

RESOLUTION

It is the prerogative of Carrier to determine the physical qualifications of its employes so long as its findings are not arbitrary, capricious or exercised in bad faith or for the purpose of circumventing the terms of the Agreement.

It must be conclusively presumed that Claimant was satisfied that the diagnosis and prognosis of Dr. DeRoy, upon which he relied in his action for damages, was correct; otherwise, he would have been perpetrating a fraud on the court. Carrier might well have found him physically disqualified on the basis of Dr. DeRoy's findings and conclusions, alone. But, out of what appears to be an excess of caution in the protection of Claimant's rights, Carrier caused Claimant to be examined by an orthopedic specialist who confirmed the findings of Claimant's own doctor. Only then did Carrier's Medical Director find Claimant to be physically disqualified. We find that Carrier's conclusion of disqualification was predicated upon credible, concurring and expert medical diagnoses and prognoses; and, its action, in classifying Claimant as physically disqualified, did not violate the Agreement.

We attach no probative value to the statements of three doctors who examined Claimant after the disqualification. Claimant had already had his day in court. There must be an end to disputes. The Gunther case does not stand for the proposition that once an employe is fairly found physically disqualified that he can later claim that it was wrongful.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That Carrier did not violate the Agreement.

AWARD