NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-27161
Ronald L. Miller, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company (Southern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
Trackman L. Graham shall be returned to his position as trackman, he
shall be compensated for all compensation loss suffered by him as a result of
being improperly withheld from service beginning sixty (60) days retroactive
from May 2, 1985 and he shall be credited with the appropriate number of days
toward vacation qualifying time and Railroad Retirement service (C-TC-291
/MG-5264)."
OPINION OF BOARD: The Claimant was injured while on duty as a Trackman in
1981. Following two operations for relief of a herniated
disc, Claimant's physician concluded on September 16, 1981, that Claimant had
a permanent partial disability. Subsequently, in a settlement of a suit
between Claimant and the Carrier, Claimant was paid $175,000.
In 1985, Claimant's physician advised the Carrier that his earlier
conclusion regarding Claimant's physical condition was not correct, that
Claimant had made a full recovery from his prior back injury, and therefore,
Claimant could return to his duties as a Trackman. Based upon the original
diagnosis by Claimant's physician (rather than its own examination), the Carrier concluded that Clai
The Carrier has based its decision in this matter on a 1981 diagnosis
that the issuing physician subsequently described as "premature." That diagnosis should not be consi
determine Claimant's condition. Accordingly, Claimant's and the Carrier's
physicians shail select
3
neutral pi:ysiciau who is a
specialist
in Claimant's
condition and that neutral physician shall, determine if Claimant is physically
qualified to return to work.
_FINDING: 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
._r, approved June 21, 1934;
Award Number 26700 Page 2
Docket Number MW-27161
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was violated.
A WAR D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest"
Nancy J. Dever - Executive Secretary
Dated at Chicago, Illinois, this 23rd day of November 1987.