PUBLIC LAW BOARD NO. 5732
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No- 3
and )
Award No. 3
DULUTH, MISSABE AND IRON RANGE RAILWAY COMPANY )
Martin H. Malin, Chairman & Neutral Member
Donald D. Bartholmay, Employee Member
John H. Young, Carrier Member
Hearing Date: January 13, 1997
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed
and refused to institute a three. (3) physician panel
pursuant to Rule 29 when Maintenance of Way employe
Richard P. Wilhelm was released for service by his
physician which was disputed by the Carrier (Claim No.
27-95).
3. Maintenance of Way employe Richard P. Wilhelm shall
now be compensated for all wage loss suffered as a
result of being improperly withheld from service
commencing sixty (6o) days prior to December 6, 1995
and continuing until he is returned to service.
FINDINGS:
Public Law Board No. 5732, upon the whole record and
all the evidence, finds and holds that Employees and Carrier
are employees and carrier within the meaning of the Railway
Labor Act, as amended; and, that the Board has jurisdiction
over the dispute herein; and, that the parties to the
dispute were given due notice of the hearing thereon and did
participate therein.
Claimant was hired by Carrier in 1981. He was laid off
due to a reduction in force from 1986 until 1995. In 1995,
Carrier recalled Claimant, but Carrier's physician
determined that Claimant was not physically qualified to
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return to duty. Consequently, Claimant continued in
inactive status.
Claimant submitted a letter from his doctor which the
Organization contends disputes the findings of Carrier's
doctor. The Organization argues that, because of the
dispute between the two physicians, Claimant was entitled to
have the matter resolved by a third, mutually selected
physician. The Organization relies on Rule 29(b).
Carrier denied the Organization's request to invoke the
procedure called for in Rule 29(b). Carrier maintains that
the two doctors did not disagree over Claimant's physical or
visual condition. Rather, in Carrier's view, the two
doctors, at most, disagreed whether, in light of Claimant's
physical condition, he was capable of performing the work of
an employee in the B & B Department. Carrier maintains that
such judgments are committed to Carrier's discretion as long
as Carrier does not exercise that discretion arbitrarily or
unreasonably.
Rule 29(b) provides:
If the two physicians selected in accordance with
paragraph (a) should disagree as to the physical
or visual condition of such employee, they will
select a third physician to be agreed upon by
them, who shall be a practitioner of recognized
standing in the medical profession and a
specialist in the disease or diseases from which
the employee is alleged to be suffering. If the
two physicians selected by the Railway Company and
the
employee fail
to agree in the selection of a
third physician, both parties agree that the third
physician may be selected by the Duluth Clinic.
The Board of Medical Examiners thus selected will
examine the employee and will render a report
within a reasonable time, not exceeding fifteen
calendar days after selection, setting forth his
physical or visual condition,-as the case may be,
and their opinion as to his fitness to continue
service in his regular employment, which will be
accepted as final. Should the decision be adverse
to the employee and it later definitely appears -
that his physical or visual condition, as the case
may be, has improved, a reexamination will be
arranged after a reasonable interval upon request
of the employee.
Our review of the record leads us to conclude that the
organization has failed to prove that Claimant qualified for
the procedure detailed in Rule 29(b). It is undisputed that
Carrier's physician found that Claimant was not physically
able to perform the duties of an employee within the B & B
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Department. The last communication from Claimant's
physician in the record is a letter dated August 10, 1995,
which states, in relevant part:
I have reviewed the duties of a B & B worker and
believe that this patient would be able to perform
those work duties. If there is serious
consideration that he could be hired back to duty
then I would recommend to him that we obtain an
FCE for completeness to further assure you of his
abilities. If, however, you are merely "cleaning
out your files" of laid-off workers with little
chance of his returning to work despite whatever
documentation I could provide, then I will so
inform him before he incurs a cost for an FCE,
It is not clear from the record whether the FCE was
ever performed. Moreover, there is nothing in the record to
indicate, if the FCE was performed, what Claimant's
physician's interpretation of the results was. Thus, the
organization has failed to carry its burden to establish
that there was a dispute between Claimant's physician and
Carrier's physician. We simply do not know what Claimant's
physician's ultimate diagnosis and recommendation was, or
even if he ever made one.
Although the claim must be denied, we note that
Claimant remains an employee. Consequently, he remains free
to submit to Carrier any additional medical documentation
that he has, including any evidence of improvements in his
physical condition since the claim was filed over a year
ago. Carrier should consider whatever evidence Claimant
might submit and if a dispute arises, a new claim may be
filed.
AWARD
Claim denied.
Martin H. Malin, Chairman
t.
John ou D ald D. artholmay,
Carr k!!,M_~6r Employee M mber
Dated at Chicago, Illinois, January 27, 1997.