Award No. 16926 Docket No. SG-17482







PARTIES TO DISPUTE:



STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Erie-Lackawanna Railroad Company:




EMPLOYES' STATEMENT OF FACTS: This dispute involves an employe who-in spite of favorable medical opinions and reports by three different doctors-has been held out of service since October 26, 1966, allegedly because of his physical condition.


On July 9, 1966, Leading Signal Maintainer A. D. Langone -at age 40suffered a Posterior Coronary Infarction and was in the Oswego Hospital until August 9, 1966. Following his recovery the cardiologist, Dr. Olin J. Mowry, who attended him during this period, stated in a report to Carrier's Chief Surgeon W. E. Mishler that:




Dr. Mowry's report dated November 15, 1966, to Dr. Misler was as follows:









W. E. Mishler, M. D. 737 Midland Building Cleveland, Ohio 44115

OPINION OF BOARD: On July 9, 1966, Claimant suffered a posterior myocardial (coronary) infaretion. He was hospitalized until August 6, 1966 at which time he was released to his home to convalesce. He was subsequently examined by his own attending Physician, a Cardiologist, the local Carrier Doctor, and a Veterans Administration Physician, all of who recommended that he be returned to duty. The local Carrier's Doctor's examination is dated October 22, 1966, and it is from that date forward that the claim has been submitted.


The Carrier's Chief Medical Officer, despite the recommendations of the above mentioned Physicians, would not approve Claimant's return to duty.


The Railroad Retirement Board paid Claimant sickness benefits until October 28, 1966. Inasmuch as Carrier refused to return him to duty, the Board then began paying unemployment benefits. On November 30, 1967, Claimant suffered an acute myocardial infarction due to coronary arteriosclerosis on the street and was pronounced dead on arrival at the hospital.


We have in ,this case a difference of opinion between Doctors. The claim is based on the allegation that Carrier's refusal to return the Claimant to duty, was arbitrary and capricious.


From a review of the evidence, Carrier's Chief Medical Officer never personally examined the Claimant. Nor would he agree to accept the findings and recommendations of outside independent Medical Authority, which Claimant was willing to consult and for which he was willing to bear the expense thereof.


When a difference involving opinion occurs, the Agreement, by means of an Addendum entitled "Understanding on Physical Reexaminations" provide a procedure to be followed by the General Chairman. It reads in pertinent parts as follows:



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Atlhough the General Chairman did not officially progress this matter in accordance with the procedure outlined above, there is evidence in the record that this procedure was suggested to the Chief Medical Officer and he summarily refused to follow it. This fact is not controverted in the record by the Carrier.


The subsequent death of Claimant a year later would indicate that Carrier's Chief Medical Officer may have been correct in his judgment. However, we are concerned with his decision of the prior year. It would appear to us that with three other physicians recommending Claimant's return to duty, all of whom personally examined him, and with the Chief Medical Officer refusing to accept independent authority offered by Claimant as well as his refusal to follow the procedure outlined above, his action in this case was arbitrary.


To argue that the General Chairman should nevertheless have progressed the matter in accord with the procedure outlined in "Understanding on Physical Reexaminations," despite the uncontroverted refusal of Carrier's Chief Medical Officer, is to encourage exercises in futility. Compensation is therefore awarded from October 26, 1966 to Claimant's date of death.


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




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











Dated at Chicago, Illinois, this 29th day of January 1969.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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