Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28396
THIRD DIVISION Docket No. MW-27769
90-3-87-3-248
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation - (Amtrak)
Northeast Corridor
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
The Carrier shall establish a Board of Doctors to examine Mr.
Stanford Douglas in compliance with and as required by Rule 86."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant herein was injured in an altercation with another employee
while working in October of 1979. He had continued problems with his hand as
a result of the incident, although he worked intermittently over the next
several years. In June of 1980, he instituted a Claim against Carrier pursuant to the Federal Employ
January of 1986, Claimant was awarded $31,500 (considerably less than he had
sought). In the course of the court proceedings Claimant's physician, an
orthopedist, testified that he had permanent damage to his right hand and
would never be able to perform his regular work as a carpenter. This testimony by Dr. Lee was given
was only able to work on light duty assignments.
The Claim herein, filed on April 26, 1986, was supported by a letter
from another physician, Dr. Margolies, who by letter dated June 16, 1987,
stated:
Form 1 Award No. 28396
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"Patient was last treated in this office on May
23, 1986, as of April 10, 1986 patient was to
return to work but due to swelling of the right
hand the company would not accept him."
The Organization believes that Rule 86 mandates the establishment of
a medical panel in this case. That Rule provides:
"RULE 86
PHYSICAL CONDITION - BOARD OF DOCTORS
When an employee covered by this Agreement
has been removed from or is withheld from
service on account of his physical condition and
the organization desires the question of his
physical fitness to be finally decided before he
is permanently removed from his position or restricted from resuming service, the case shall
be handled in the following manner:
The General Chairman will bring the matter to
the attention of the Director of Labor Relations. He and the General Chairman shall then
each select a doctor to represent them, each
notifying the other of the name and address of
the doctor selected. The two (2) doctors thus
selected shall confer and if they disagree on
the nature of the illness, they shall appoint a
third doctor.
Such board of doctors shall then fix a time
and place for the employee to meet them. After
completion of the examination they shall make a
report in triplicate, one (1) copy to be sent to
the Medical Director, one (1) copy to the Director of Labor Relations of AMTRAK, and one (1)
copy to the General Chairman.
The decision of the board of doctors on the
physical fitness of the employee to continue in
his regular occupation or to resume service
shall be final, but this does not mean that a
change in physical condition shall preclude a
re-examination at a later time.
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The doctors selected for such board shall be
experts in the disease from which the employee
is alleged to be suffering, and they shall be
located at a convenient point so that it will be
only necessary for the employee to travel a
minimum distance, and if possible, not be away
from home for a longer period than one (1) day.
AMTRAK and the organization shall each defray
the expenses of its respective appointee. At
the time their report is made, a bill for the
fee, and traveling expenses if there are any, of
the third appointee should be made in duplicate
and one (1) copy sent to the Medical Director
and one (1) copy to the General Chairman.
AMTRAK and the Organization shall each pay
one-half of the fee and traveling expenses of
the third appointee."
The Organization relies on the letter from Dr. Margolies cited supra
as well as a letter from Dr. Lee dated June 10, 1985, which stated:
"Please be advised Mr. Douglas was seen by me
today June 10, 1985.
His paresthesia is completely resolved and he
still experiences some weakness of hand grip and
pinch but feels improvement.
I am very pleased to see such good progress
and I recommended he return to work at light
duty at this time and he will see me once again
for his last checkup in about six weeks.
If you have any questions, please contact me
at my Office."
It is urged that the two letters from doctors represent documentary evidence
that Claimant was sufficiently recovered to return to service. The Organization notes that Carrier p
that Rule 86 does not require that there be a conflict in the opinions of the
Carrier's Medical Director and Claimant's physician. Finally, it is noted
that the Jury's determination in the litigation did not by virtue of the
amount awarded constitute a finding of permanent disability.
Carrier's position initially is that the doctrine of estoppel is
operative in this dispute. It is argued that the Jury's determination was
based on pleadings and testimony indicating permanent disability by both
Claimant and his doctor, Dr. Lee. Additionally, Carrier maintains that there
is no dispute in medical findings which would trigger any need for a board of
doctors as provided in Rule 86.
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The Board finds that it is not necessary to evaluate the arguments
with respect to estoppel in this dispute. The simple fact is that there is no
persuasive evidence of record to indicate that Claimant was physically (or
medically) able to return to his former position. The Organization's reliance
on the two medical notes was misplaced. Dr. Lee's note was dated prior to the
date of his testimony that Claimant was permanently disabled; thus it has no
relevance to the subsequent medical condition of Claimant. Dr. Margolies'
letter of June 16, 1987, is not an unequivocal release to work for Claimant
and certainly cannot be construed to embrace a diagnosis which could be the
subject of dispute before a board of doctors.
After a careful review of the authorities presented and an evaluation
of the evidence contained in the record, the Board concludes that Carrier did
not violate the Agreement by refusing to convene a panel of doctors as required in Rule 86.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _
Nancy J.~B -Executive Secretary
Dated at Chicago, Illinois, this 25th day of May 1990.