(Brotherhood of Railroad Signalmen

PARTIES TO DISPUTE:
              (Seaboard System Railroad


STATEMENT OF CLAIM: "Claim of the General Committee of the Brotherhood of
              Railroad Signalmen on the Seaboard Coast Line Railroad:


(a) Carrier through its Medical Department has wrongfully withheld Claimant Kerley from service.

 (b) Carrier should now be required to restore Claimant to service subsequent to August 20, 1981, with all rights and benefits due him by Agreement.

 (c) Carrier should now be required to compensate Claimant for all straight time and time and one-half subsequent to August 20, 1981.

        [Carrier file: 15-00 (81-1012)]"


OPINION OF BOARD: The Claimant was first hospitalized for a seizure disorder
 on March 8, 1981. He had other medical problems, e. g.
 allergic rhinosinusitis, allergic diathesis with asthma, shortness of breath
 and chest pains, but the primary condition was diagnosed as "right sided focal
 motor seizure". He had collapsed in church while singing in the choir, had
 endured the seizure for approximately 5-10 minutes and when he recovered he
 was drowsy and unresponsive. He was treated with Dilantin and other drugs.

        A chronology of subsequent events follows:


                  March 14, 1981 - Kerley was discharged in "good condition" and with "good prognosis."


                  March 25, 1981 - Kerley was readmitted for treatment of acute bronchial asthma, allergic rhinitis and anxiety; among other drugs he was treated with 200 mg of Dilantin every 12 hours.


                  April 1, 1981 - Discharged - "condition good . . . The prognosis is good." But the "History" states, "Recently, evaluated at this hospital for motor seizures on the right side and was started on Dilantin 200 mg. b.i.d. but the patient did not take the medicine because it was making him drowsy, with unstable gait."

                  Award Number 25903 Page 2

                  Docket Number SG-24879


May 28, 1981 - Letter from Dr. D. R. Moomaw, Carrier
 physician, sent to Kerley advising him,
 "We are unable to approve your return to
 duty as assistant signalman at this time.
 Your records will be reviewed by the
 Rehabilitation Committee."
 July 27, 1981 - Letter sent to Carrier physician C. A.
 Mead by Dr. W. A. Margarino, "I have
 been treating Mr. Lawrence Kerley for
 bronchial asthma, allergic rhinitis,
 and right sided focal motor seizure
 possibly precipitated by anxiety and
 hyperventilation. . .
 At the present time, the patient is in
 good physical condition. I am aware of
 the type of work that he performs at the
 railroad company. He is not disabled and
 is able to participate in any physical,
 mental or working activities. . .

              September 8, 1981 - Letter from Kerley to General Chairman Gross: The date in which Dr. Mead's office received the letter from Dr. Mergarino was August 20, 1981."


              September 30, 1981- Claim filed by Brotherhood of Railroad Signalmen on behalf of Kerley.


              October 26, 1981 - Carrier replies, '. . . Mr. Kerley has been medically disqualified as an Assistant Signalman because of a seizure disorder. His case has been referred to the Rehabilitation Committee to determine if there is alternative employment for him. . .


              November 9, 1981 - Letter from General Chairman Gross requesting "that a three doctor panel be appointed to settle this dispute."


              January 7, 1982 - Letter from Carrier to Brotherhood, "In r,viewing Mr. Kerley's file with the Chief Medical Officer, Dr. C. A. Mead, there is no difference between his ,pinion and those of the physicians who have been treating him, i.e., Drs. Margarino and Mozingo. Their diagnosis la that Mr. Kerley has a seizure disorder which requires treatment with Dllantin and other drugs. The hospital reports, specialists reports, and doctors reports

                      Award Number 25903 Page 3

                      Docket Number SG-24879


                  all verify this and therefore there is no justification for establishing a three doctor panel as you have suggested . . . .


                  March 12, 1982 - "Certificate of Ability to Work" issued by Dr. C. A. Mead for Lawrence E. Kerley.


                  March 15, 1982 - Kerley returned to work.


It is agreed by the parties that the issues to be resolved are, "Was the Carrier dilatory or not in returning Kerley to work?" And if so, what is the proper recourse.

 From the record and the issues involved the Board is forced to conclude that the Carrier was not dilatory.

 On the one hand, the Carrier was dealing with a condition wherein the Claimant, if subject to motor seizures of 5-10 minutes duration which caused him to collapse and upon recovery to be drowsy and unresponsive, could not allow the employee to perform his normal duties. If injury or damage was sustained by the Claimant himself, his fellow employees or a member of the public, the Carrier could be liable for negligent conduct in permitting him_to return to work.

 On the other hand, the same dangers would prevail if the condition was controlled with the drug Dilantin which has verified side effects of: ataxia (failure of muscle coordination), mental confusion, insomnia, dizziness and transient nervousness, among others.

 Thus a great degree of caution was warranted before certifying that the Claimant could resume his normal duties. While Dr. Margarino indicated that he was aware of the type of work and certified that the Claimant was able to work, he undoubtedly was not as familiar as the Carrier physician or the Rehabilitation Committee with specific job duties as spelled out in the "Job Analysis Summary - Physical Demands and Environmental Conditions for the Job of Signal Helper/Assistant Signalman." These included: Walking track to inspect and install bonds and track connectors; working with high voltage equipment; lifting signals; carrying tools to the job site; raising signal equipment into place; climbing poles and ladders, etc.

 Furthermore, it was the Claimant's responsibility to keep the Carrier informed regarding any change in his condition that might warrant alteration of the Carrier's decision to preclude his return to work. This he failed to do. It was only after the Carrier had been informed by Kerley's physicians that he had discontinued the use of Dilantin and had not suffered subsequent recurring seizures that the Carrier certified him for a return to work. This information was not communicated by the Claimant but, rather, was developed by the Carrier's Chief Medical Officer.
                      Award Number 25903 Page 4

                      Docket Number SG-24879


This indicates that the Carrier, far from being derelict or negligent or in the wrong was, in fact, diligent in pursuing the Claimant's interest as well as its own.
Thus the Carrier cannot be charged with "wrongfully" withholding the Claimant from service and thus the Claim is denied.

        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 the Agreement was not violated.


                        A W A R D


        Claim denied.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest.

        Nancy J. ever - Executive Secretary


Dated at Chicago, Illinois, this 26th day of February 1986.

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