The genesis of this claim is found in the decision of Award 6 of Special Board of Adjustment No. 1132 which ruled as follows:

"Given the background of this Claimant, this Board finds that the Claimant shall be reinstated to service, but without back pay, once he passes a physical examination. The period that the Claimant was off shall be considered a lengthy disciplinary suspension for his violation of the rules.

AWARD :

The claim is sustained in part and denied in part. The Claimant shall be reinstated to service, but without back pay, once he passes a Carrier-administered physical examination. The period that the Claimant was off shall be considered a lengthy disciplinary suspension."

Following the decision of SBA 1132, the Claimant was conditionally medically clear to work with the following 120-day restrictions:

"1. Avoid driving company vehicles. 2. Avoid climbing of ladders and/or poles. 3. Avoid operating power saws.

Employee is to provide updated medical information after midSeptember 2001 neurology follow up."

Because there were no Signalman positions available to the Claimant with the medical restrictions as set forth by the Claimant's personal physician and the Carrier's Medical Examiner, he was not immediately returned to service. This withholding of the Claimant from service prompted the Organization to request an Unjust Treatment Bearing on the Claimant's behalf. This request was based on the provisions of Rule 70 of the Agreement which reads as follows:

"RULE 70 - UNJUST TREATMENT

An employee who considers himself unjustly treated, other than covered by these rules, will have the same right of hearing and appeal

The Carrier denied the Organization's request for an Unjust Treatment Hearing on the basis that there was no disagreement between the medical opinions expressed by the Claimant's personal physician and the Carrier's Medical Examiner. In addition, the Carrier contended that medical conclusions and decisions were not proper subjects for an Unjust Treatment Hearing. The Carrier's denial of the Unjust Treatment Hearing request was pursued through the normal on-property grievance procedures and is now before the Board for final determination.

The Claimant's personal physician concluded and reported in the "midSeptember 2001" follow up referenced in the conditional medical opinion referenced supra, that the Claimant was as of that time under no further medical restrictions and was medically cleared to return to full duties. Thereupon, the Claimant was returned to full service.

The Board's determination in this case is limited to whether there was a proper basis for the Organization's request for an Unjust Treatment Hearing.

The Board concludes that there was no proper basis in this case for conducting an Unjust Treatment Hearing. There was no disagreement between the medical experts whose responsibility it was to determine the Claimant's medical condition. There is absolutely no evidence in this case record to contradict the medical conclusion reached by both the Carrier and the Claimant's own physician relative to the temporary restrictions that were placed on the Claimant.

There is no evidence to support the Organization's contention that the Claimant was unjustly treated when the medical opinions as set forth by all of the concerned medical experts were applied to the Claimant. When the medical experts removed the restrictions, the Claimant was restored to full service. Nothing could possibly have been accomplished by non-medical personnel conducting an Unjust Treatment Hearing.

04-3-02-3-706