NATIONAL RAILROAD ADJUSTER' HOARD
THIRD DIVISION Docket Number CL-21219
Joseph A. Sickles, Referee
(Brotherhood of Railway, Airline, and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(The Pittsburgh & Lake Erie Railroad Company
STATE<OM 0f CLAIM: Claim of the System Committee of the Brotherhood
(GL-7870) that:
(a) The Carrier violated the Rules Agreement, effective September 1,
1946,
when it disqualified Traveling Agent H. F. Johnston from performing any service on the Pittsburg
(b) H. F. Johnston be restored to active service of the Pittsburgh
and Lake Erie Railroad Company and paid for all time lost from October 16,
1972 until such restoration is made effective.
OPINION OF
HOARD: Claimant alleges a violation because Carrier refused
a restoration to duty after his physician certified
him to be physically capable of working.
The Carrier maintains that the findings of its Chief Surgeon
during return to service examination, as well as those of the Claimant's
personal physician support the disqualification from employment at the time.
Findings from the Chief Surgeon's report of the October 16, 9"
examination state:
"...he has sufficient degenerative disc and arthritic
changes in his cervical and lumbar spine that he will
be unable to perform his assigned duties."
The Claimant's physician stated:
"As mentioned above, Mr. Johnston did not report for treatment. Nor did he appear to need any. I
my
impression
that whereas he had a moderately advanced osteoarthritis of
the thoracic and lumbar spine, he was fairly well adjusted to
the mom and was not having symptoms of any degree or any disability therefrom. It was my impression
do the work of a traveling agent. However in view of his age
and the arthritis in his back he should avoid heavy lifting
or strain upon his back."
Award fi=ber 21136 Page 2
Docket Number CL-21219
Although there is soars dispute regarding the duties of a Traveling
Agent, Carrier insists that there is substantial evidence presented which
shows that the required activity could aggravate a back injury (i.e.,
climbing side ladders on cars, walking on industry tracks), and both "icians support the conclusion
activities.
Although the Agreement does not contain a specific rule in this
regard, Claimant cites numerous Awards to support the position that Carrier
should have agreed to a solicitation of a third (Neutral) physician's
opinion.
In its Ex Parts Submission to the Hoard, Carrier recognises that
Awards of all four Divisions of this Hoard have reccomended a three-doctor
Hoard in case of conflicting medical opinions, and states that it is not
averse to such a procedure when it is warranted.
We are inclined to agree that the record does not support a conclusion that a neutral opinion was ne
is strengthened by the letter which Claimant wrote seven days after the
return to service examination:
'"...though in exernoiating pain, I would have tried to work..."
FIRDIRCiB: The Third Division of the Adjustment Hoard, upon the whole record
and all the evideace,.finds and holds:
That the parties waived oral hearing=
That the Carrier and the tees involved in this dispute are
respectively Carrier and Employes within the meaning of the Railway Labor
Act, as approved June
u, 1934;
That this Division of the Adjustment Hoard has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A ii A R D
Claim denied.
'
RATIONAL RAII$OAD ADJDBTMT HOARD
By Order of Third Division
ATTIST:
&W'4L'0"
Dated at Chicago, Illinois, this 30th day of
July
1976.