(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 Trackman J. A. Young shall be returned to his position as trackman and he shall be compensted for all compensation loss suffered by him as a result of being improperly withheld from service sixty (60) days retroactive from September 13, 1983 (System File 50-26-824/11-1500-20.3-2)."

 OPINION OF BOARD: On September 2, 1982, the Claimant requested re-examination
 by physicians in view of his medical disqualification as a
 Trackman by the Carrier. The Claimant filed a request for re-examination
 under the provisions of Rule 26(b) which states the following:





(2) If the two physicians fail to agree, the employe's physician and the Carrier's physician will select a third physician who shall be a practitioner of recognized standing in the medical profession and, where any special type of case is involved, must be a certified specialist in the disease or impairment which resulted in the employe's disqualification. The board of physicians thus selected will examine the employe and render a report of their finding within a reasonable time, not exceeding 30 days after their selection, setting forth the employe's physical condition and their conclusion as to whether he meets the requirements of the Carrier's physical examination rules. The 30-day period may be extended by mutual agreement between the General Chairman and the General Manager.

 (3) The Carrier and the employe involved will each defray the expense of their respective physician. The fee of the third member of the board will be borne equally by the employe involved and the Carrier. other examination expenses such as x-ray, electrocardiographs, etc., will be borne equally by the employe involved and the Carrier.

 (4) If the majority of the Board of Physicians conclude that the employe meets the requirements of the Carrier's examination rules, he shall be permitted to return to the service from which removed.

 (5) If there is any question as to whether there was any justification for restricting the employe's service or removing him from service at the time of his disqualification by the Carrier doctor(s), the original medical finding which disclose his condition at the time disqualified shall be furnished to the neutral doctor for his consideration and he shall specify whether or not, in his opinion, there was justification for the original disqualification. The opinion


              of the neutral doctor shall be accepted by both parties in settlement of this particular feature. If it is concluded that the disqualification was improper, the employe will be ccmpensated for loss of earnings, if any, resulting from such restrictions or removal fran service incident to his disqualification.


              (6) In the event the decision of the Hoard of Physicians is adverse to the employe and he subsequently considers that his physical condition has improved sufficiently to justify considering his return to service, a reexamination will be arranged upon request of the employe, or his representative, but not earlier than ninety (90) days after such decision. Should it be necessary to select a second Board of Physicians to resolve such a request for a reexamination and the decision of such second Board of Physicians is adverse to the employe, he will not he subject to any further reexamination."


The Claimant designated his personal physician of the two-doctor Examination Board to be Joseph Huston, Topeka, Kansas. The Carrier designated its physician to be Joseph Gendel, Topeka, Kansas, after the General Chairman made a request to the Carrier that it change its first choice. The latter was a physician fran Wichita, Kansas who was not "convenient" for the Claimant to have seen. By letter dated November 9, 1982, the Carrier wrote to the Claimant with instructions to " .. arrange appointments for examination by both (doctors) with their examination findings and report to he forwarded" to the Carrier's Medical Director in Chicago. After subsequently being examined by both doctors the Carrier informed the Claimant that the doctors were not in agreement over his physical fitness and ability to resume his position as Trackman. Rule 26(b)(2) was then applied. On February 25, 1983, the General Chairman wrote to the General Manager of the Carrier, Topeka, Kansas, that the Claimant had attempted to see the third doctor designated to the panel, R. O. Sutton, of Topeka but that "... upon commencement of the examination Doctor Sutton informed (the Claimant) that he would have to seek his third opinion fran another physician and refused to examine him." By return letter dated March 2, 1983, the Carrier stated to the General Chairman that the Claimant failed to ". . give all the facts" concerning this matter to the Organization because the third physician had not examined the Claimant because he had refused "... to cooperate and provide necessary information." This physician now refused to "... schedule another appointment or participate any further in the matter." The Carrier stated that this left no alternative but to arrange
                        Award Number 26204 page 4

                        Docket Number MW-26095


for the selection of "... another doctor to form the three-doctor board." It added that if the Claimant refused to cooperate at the next examination scheduled it would consider the Claimant to have forfeited protection and entitlements under Rule 26 of the Agreement. On March 30, 1983, the Claimant was advised that an additional doctor fran the Tbpeka area had been chosen by Doctors Huston and Gendel and that this physician's name was Joseph L. Shaw. The Claimant was advised to report to this doctor for an examination on March 31, 1983. After examination of the Claimant the third physician of the Hoard, an orthopedic Surgeon, wrote to the Carrier the following, in pertinent part:

          "(c)uriously enough, I don't believe this fellow has any current symptans associated with fairly active work, and I questioned him quite thoroughly in this regard as well as job description as his work as a track man.


          I think that he could be capable of performing that type of work as a track man, and it would be my inclination to let him go ahead and do this work. Obviously, I cannot guarantee that he will not have a possibility of reinjuring his back after having had two prior surgeries. This possibility is probably higher than for the average person of his age and degenerative changes."


In view of the third opinion the Claimant was informed by letter dated May 2, 1983, that he was to remain disqualified as a Trackman. On September 13, 1983, the organization objected to the Carrier's interpretation of the third physician's medical opinion. Absent resolution of this dispute on property this case was docketed before the Third Division of the National Railroad Adjustment Board for final adjudication.

 First of all there is a procedural issue raised by the Carrier which must be ruled on by the Board. The Carrier holds that the Claim before the Board is procedurally defective because it was not filed in a timely manner. Under Rule 14(a)--Time Limits according to the Carrier, the Organization had failed to file the Claim within sixty (60) days of the date of the occurrence of the alleged Rule violation. The Organization responded on property that the Claim was protected under the provisions of Rule 14(b) because it was a "continuing claim" and that no procedural error was committed. An analysis of the time frame in which the original issue was raised by the Claimant, as well as the language found in Rule 14(b) suggests that it would be unreasonable to interpret the "... occurrence of the alleged Rule violation" to have occurred on May 2, 1983, which was the date when the Carrier informed the Organization of its interpretation of the third doctor's opinion of the Claimant's physical condition. In fact, it was the position of the Claimant as early as September 2, 1982, that he was being improperly withheld fran service on the basis of fitness and ability and the organization properly followed the language of the Agreement at Rule 14(b) when it argued that this was a continuing claim. Rule 14(b) reads, in pertinent part, as follows:
                        Award Number 26204 Page 5

                        Docket Number MW-26095


          "Alleged Continuing violations. A claim may be filed at any time for an alleged continuing violation of any agreement and all rights of the Claimant or Claimants involved thereby shall, under this Idle, be fully protected by the filing of one claim or grievance based thereon as long as such alleged violation, if found to be such, continues. However, no monetary claim shall be allowed retroactively for more than sixty (60) days prior to the filing thereof ...."


Precedent Awards of various Divisions of the National Railroad Adjustment Board dealing with time limits which are cited by the Carrier are not properly on point with respect to the instant case (see Second Division Award 7021; Third Division Awards 12767, 21018, 21530 inter alia). The procedural objection raised by the Carrie
On merits, the instant case centers on the proper interpretation of the third physician's medical opinion. In this respect, it is useful to compare this doctor's opinion with those of the first two physicians who examined the Claimant. The opinions of these physicians leave no roan for interpretation. The Claimant's physician stated the following, in pertinent part, in his letter dated July 13, 1982:

          "This man ... has had two back surgeries, the last one was in November of 1980 which was a spinal decompression and fusion. He has been been back to work. He is caning today asking to be released back to work. He apparently has gotten a very good result .... Today his lower back looks good ... He is a trackman. He thinks he can do the job. He wants to go back to work. He may do so. No return necessary."


On November 19, 1982, the Carrier's physician stated the following, in pertinent part, in his letter to the Carrier:

          "This patient says he is not having any significant backache at this time or leg aches. He obviously has marked-abnormalities of the spine as enumerated in the diagnosis .... It is my feeling that this patient is getting along well now because he isn't doing the heavy work that would be required as a trackman. Certainly, in my opinion, he could not do the work trackman with the marked arthritic and postural abnormalities that he has in his back, with limited motion of his back and already having had two operative procedures .... I am confident that he would not last very long at this job. He would be a danger to himself and possibly to others because of his

                        Award Number 26204 Page 6

                        Docket Number MW-26095


          obvious physical inability, in my opinion, to do the work as a trackman. This patient could do a job requiring no strenuous work or lifting, but certainly in my opinion is not capable of doing the work required of a trackman and I do not recommend that he go back to work for the Santa Fe Railway Company as a trackman."


on the other hand, the opinion of the third physician is not so unequivocal. He states, as noted earlier in this Award, that he thinks the Claimant "... could be capable of performing that type of work as a trackman, and it would be my inclination to let him go ahead and do this work." The Organization is quite correct in to mean that this doctor thinks the Claimant ought to have his disqualification lifted by the Carrie however, that the possibility of the Claimant "...reinjuring his back ... is probably higher than for the average person of his age and degenerative changes." Ouite reasonably, the Carrier interpreted this qualification to mean that the Claimant did not have sufficient fitness and ability and that he should not have his disqualification removed as a Trackman. In an attempt to clarify the third physician's opinion the Organization asked for his own interpretation of what he wrote in his first letter. On February 13, 1984, this doctor wrote the following:

        "7b clarify my previous letter, I can only reiterate that I think it is reasonable for the patient to return to work. He does have a slightly higher possibility of reinjuring his back than had he not had previous back surgery but I don't think this should preclude him from the type of work that he was doing."


Evidently, this interpretation of his own letter is as problematical as the original opinion itself. Again, he states that the Claimant is capable of doing the work, but he again adds a disclaimer. In short, this physician refuses to take an unequivocal position on this matter as did the first two physicians who examined the Claimant.

 Both the Claimant and the Carrier have a contractual right, under Rule 26 cited in full in the foregoing, to a straightforward, clear medical opinion of the physical condition of the Claimant. Since the third physician in question was unable to provide such, this Board has no alternative but to direct the parties to reapply those provisions of Rule 26 whereby the first two physicians are required to "... select a third physician . . (who) ... will examine the employe and render a report of their finding within a reasonable time . . setting forth the employe's physical condition and their conclusion as to whether he meets the requirements of the Carrier's physical examination rules."
 Award Number 26204
 Locket Number MW-26095

 Page 7

        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 ETnployes 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 dispute is remanded.


                        A W A R D


        Claim disposed of in accordance with the Opinion.


NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

 Attest:

 Nancy ver - Executive Secretary

 Dated at Chicago, Illinois, this 12th day of December 1986.