This Board, after hearing upon the whole record and all the evidence finds that the Carrier and the Employee involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.
This is a complex and multilayered case best presented in the background of the initial claim above which was presented January 24,1996 arguing that the Claimant was unjustly withheld from service in violation of Rules 1, 20, 48 and 50. The Organization maintained that the Claimant was inappropriately disqualified from service for medical reasons and requested all wages lost. It provided a signed medical opinion that the Claimant "does not have a mental condition which would necessarily preclude him from safely performing his duties as a track laborer." It requested a Medical Board under Rule 50.
notes that the Carrier's response of March 29, 1996 to the claim confirmed a 30-day extension for its response. There is no question after full review that the Carrier did not respond in a timely manner. Therefore, the claim must be sustained.
The Carrier's response of June 10, 1996 tolls all liability thereafter. In that response, the Division Engineer stated that the Claimant was withheld from service as medically disqualified. He notes that the Claimant "had been removed from service the previous month for observed unsafe practices."
The Board finds that the substance of correspondence and evidence is over the Claimant's medical conditions. The extensive details in this record of the Claimant's "Attention Deficit Disorder and Hyperactivity Disorder" are beyond this Board's authority and competence to consider, except to note that the Carrier's Medical Director found that the Claimant was "not considered to be medically qualified." The liability therefore cannot be for back pay in that the Claimant was unable to perform his work to the safety requirements of his job.
Additionally, there is in this record the further issue of Rule 50 on Physical Disqualification. There is no question in this case, that the Claimant was physically disqualified and that makes Rule 50 relevant. It states:
The initial claim by the Organization included the affidavit of a physician which concluded that "it is my medical opinion that [Claimant] does not have a mental condition which would necessarily preclude him from safely performing his duties as a track laborer." There is no question that the Carrier failed to fulfill its responsibilities under Rule 50 to convene a Medical Board.
The Board must find that the Carrier is required under this record to convene a Medical Board as requested in the Claim. There is no question in the facts at bar that the Organization presented a qualified dissenting opinion and proper written request. While we cannot find the Carrier's disqualification improper and will not return the Claimant to service under the full record of evidence, nor grant back pay, we are Public Law Board No. 6596 Award No. 39 Case No. 3 Page 3 of 3 constrained to find a Rule 50 violation and order Carrier compliance.
PUBLIC LAW BOARD NO. 6596
INTERPRETATION NO. 1 TO AWARD NO. 3
CASE NO. 3
The Organization argues that the Carrier has failed to properly apply the Award. The Organization maintains that compliance with Rule 50, includes full compliance with all aspects of Rule 50, including Section (e), supra. As the Medical Review Board found the Claimant fit for service during the time dismissed, the Claimant is due pack pay under Rule 50, to January 24, 1996.
The Carrier denies the merit of the Organization's arguments. It maintains that the original claim before this Board issued Award No. 3 requested, "all wages lost while withheld from service, beginning on January 24, 1996, continuing until such time as he is rightfully reinstated." It points out that the Award considered that element of Rule 50 and specifically stated in its partially sustaining decision that, ". . . we cannot find the Carrier's disqualification improper and will not return the Claimant to service..., nor grant back pay.." The Carrier holds that the decision is clear and no back pay is to be awarded.
The Board specifically considered all elements of the Claim in Award No. 3. It found the facts therein to be unique. In the Board's study of the Medical Review Board's decision, there is nothing that indicates the Claimant was ever fit for duty during the time dismissed. The review discusses prior letters from Dr. Preyer, Dr. Barnett and others, as well as what the Claimant had been doing during the time he had been dismissed. It does not state that the original determination that the Claimant was "not considered to be medically qualified" was inaccurate. While the review points out that the Claimant is now capable of working as a track laborer, it notes that the Claimant:
to work. Under the unique conditions of this instant case, we specifically did not grant back pay. Rule 50(e) on compensation finds no facts in this record wherein there is an opinion by a neutral doctor that there was or was not "justification for the original disqualification." There is no explicit statement by the Medical Review Board that the original medical disqualification was "improper." In the Board's review, the medical re-examination finds that over eight years later, the Claimant is capable of track labor service while on medication. This does not change our initial decision. Under these instant circumstances, no back pay is due to the Claimant.
Referee Marty E. Zusman sat with the Members of Public Law Board No. 6596 when Award No. 3 was rendered, and also presided over the Executive Session in making this Interpretation.