BOARD OF DOCTORS (34)

Third Division Award No. 22640 (Eischen) 

"The Organization on behalf of Claimant invoked Rule 29 (a) and (b) by letter of October 18, 1976. Carrier by letter of November 4, 1976 refused to participate in further examinations of Claimant under Rule 29, asserting that it had already complied fully with that rule.

"Rule 29, which is at issue in this case, reads in pertinent part:

"`RULE 29 - PHYSICAL EXAMINATION

"`Should employees coming within the scope of this agreement be required to take physical examinations, such examinations will not be more frequent than once each year unless in the opinion of their supervisory officers the employee's health or physical condition is such that an examination should be made for the purpose of informing them of the disability so that proper treatment can be given.

"`If an employee should be disqualified upon examination by the Railroad's physician and feels that such disqualification is not warranted, the following rules will apply:

"`(a) The employee involved, or his Representative, will, at his expense, select a physician to represent him and the Railroad, at its expense, will select a physician to represent it, in conducting a further physical examination. If the two physicians thus selected shall agree the conclusions reached by them will be final.

"`(b) If the two physicians selected in accordance with paragraph (a) should disagree as to the physical condition of such employee, they will select a third physician at the joint and equal expense of the Railroad and the employee, 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. The Board of medical examiners thus selected will examine the employee and render a report within a reasonable time, not exceeding fifteen (15) calendar days after such examination, setting forth his physical condition and their opinion as to his fitness to continue service in his regular employment. The opinion of any two such physicians will be accepted as final. Should the decision be adverse to the employee and it later definitely appears that his physical condition has improved, a reexamination will be arranged after a reasonable interval, upon request of the employee and upon presentation of evidence from his physician that his condition is improved to the extent of making him fit for service.'

"The Carrier responded that Rule 29 had already been complied with since two doctors had examined Claimant and were in agreement regarding his `physical condition' i.e. thinning of the disc space. Accordingly, Carrier maintained that no further action was required under Rule 29 and has refused to date to participate in any further physical examination of Claimant.

"Carrier correctly points out that the cited Rule 29 provides for medical arbitration in Paragraph (b) upon prior disagreement regarding `physical condition' by the partisan doctors following the `further examination' called for by Paragraph (a). That argument, however, begs the question in this case which is whether, on the facts of record, Paragraph (a) has in fact been complied with by Carrier. We conclude that Carrier has failed to meet its obligation under that Paragraph. It is pure sophistry to suggest that the initial examination by Carrier doctor may be coupled with later examination by Claimant's doctor in fulfillment of the obligation under Rule 29(a). The plain words of Rule 29 are to the contrary. The state of events as of October 18, 1976 was, in the words of Rule 29, that Claimant had been disqualified by the Railroad's physician and `felt that such disqualification was not warranted.' His feelings in that regard were buttressed by an examination conducted by his own physician. Under Carrier's rationale, Claimant would have been able to invoke Paragraph (a) had he protested the disqualification based solely upon his feeling that it was unwarranted, but he somehow waived his right to further examination by supplementing his `feelings' at that time with medical evidence. That theory cannot withstand scrutiny in light of the plain language of Paragraph (a). Rule 29(a) speaks of `further examination' by a physician selected by the Railroad and a physician selected by the employe or his Representative. (Emphasis added) The plain meaning of the words are inescapable that Rule 29(a) gave Claimant the right to another or second physical examination by a Railroad physician for comparison with a physical examination by his own doctor. To date he has been denied that right by Carrier and accordingly no one knows whether the two physicians thus selected agree in their conclusions. At this point therefore, it is premature to argue whether medical arbitration under Paragraph (b) is warranted. There is no question however, that Claimant has been denied improperly the `further physical examination' to which he was entitled under Rule 29(a). The question of damages is at this point in time conjectural and dependent upon the conclusion of the physicians of a physical examination as to Claimant's condition. This dispute is remanded to the property and Carrier is directed to comply with the provisions of Rule 29(a) of the Controlling Agreement as to the Claimant. Jurisdiction is retained by this Board to resolve further questions which may arise regarding implementation of this Award and the computation of such damages, if any, as may be warranted by the outcome of the physical examination ordered under Rule 29.

". . . the Agreement was violated.

"AWARD

"Claim remanded to the property for handling consistent with the foregoing Opinion. Jurisdiction is retained in this Board as indicated in the Opinion."

Third Division Award No. 22050 (Franden)

"We have held many times that the Carrier has the prerogative to make physical fitness a requirement of employment provided the Carrier is not arbitrary. We affirm these holdings. However, we have also held that a determination of physical fitness must be based on reasonable medical certainty. In matters such as that before this Board we are asked to resolve conflicting medical reports as abstracted in the record to determine whether the Carrier's determination is arbitrary. This is not an acceptable procedure. In Award 20548 this Board established a procedure to resolve such conflicts in medical opinion, which procedure is applicable to the case at bar.

"We find that there is need for additional medical data to determine the physical fitness of Claimant to return to work. Therefore, we direct that Carrier and Claimant or her representative select a neutral third doctor for the purpose of examining the Claimant and that the Carrier's physician, the Claimant's physician and the neutral doctor present a written report to this division of the Board within 60 days of the date of this award stating their conclusions regarding the physical qualifications of the Claimant to return to service on August 10, 1976 and at present. The neutral physician shall be supplied with a job description of the positions for which Claimant would be eligible, including a description of the duties to be performed in that position. Upon receipt of the medical report this board will make its final decision.

"AWARD

"Claim remanded to the property in accordance with this Opinion."

Fourth Division Award No. 3650 (VanWart)

"Carrier, after conference thereon, replied that the Agreement did not provide for the establishment of a Board of Doctors, or a Neutral Doctor and denied such request. Carrier asked for a current medical status on Claimant, which was furnished in July, 1977. Arrangements were made for a physical examination of Claimant in Chicago, Illinois but he failed to report for same February 28, March 6, 7 or 8, 1978.

"The Board finds that the monetary aspects of this claim are procedurally defective. Such was untimely and improperly raised, contra to Rule 14. It is therefore dismissed.

"The fundamental problem raised herein is whether Claimant is physically capable of performing his normal duties as an Engine House Foreman at St. Thomas. Claimant presented a medical opinion from his doctor which asserted that Claimant was capable of working his normal job. Carrier's doctor asserted to the contrary. Thus, we have differing medical opinions as to Claimant's physical ability.

"It has been somewhat common for other Divisions of the National Railroad Adjustment Board, when the circumstances were appropriate, to conclude that, as lay people, they were not competent to substitute their judgment for that of skilled medical practitioners and would remand the particular case to the parties with directions to appoint a (tri-parte) panel to resolve the differing medical opinions as to an employee's fitness to work.

"Whatever misgivings may have existed as to the authority of the National Railroad Adjustment Board to establish a Medical Board as the procedural means to resolve differing medical opinions, such surely should have disappeared with the decision rendered by the United States Supreme Court, in December 1965, in Gunther v San Diego & Arizona Eastern Railway, 382 U. S. 257. There, Carrier had removed Gunther, an engineer for 30 years, after his seventy-first birthday because of the alleged physical disability, `his heart was in such condition that he would likely suffer an acute coronary episode.' Gunther went to a recognized specialist who found contra and that he could work as an Engineer. Gunther requested the Carrier to join him in the selection of a three doctor board to re-examine his physical qualifications for return to service. The Carrier refused such request. Gunther then filed claim for reinstatement and back pay. Ultimately, the First Division, in it's (sic) Award 17646, referred to past practice in similar cases and proceeded to appoint a committee of three qualified physicians to examine Engineer Gunther, one chosen by the Carrier and one by the employe and the third by the two so selected, for the purpose of determining the facts as to Claimant's disability and the propriety of his removal from service. Such medical board examined Gunther and, by a majority vote, found that he was physically qualified to act as an engineer. Thereafter, the First Division, based on such findings, sustained Gunther's claim for reinstatement with back pay lost from October 15, 1955. The Railroad refused to comply with the Board's Order. Gunther instituted enforcement proceedings of the Board's Award 17646, through the Federal Courts. The District Court held the Award erroneous and refused to enforce it. It concluded that there were no express or implied provisions in the collective bargaining contract which `limited in any way what it found to be an absolute right of the railroad, in absence of any such provisions, to remove petitioner from active service whenever its physicians found in good faith that plaintiff was physically disqualified from such service.' The Court of Appeals affirmed. However, the Supreme Court granted certiorari because `the holding of the two courts below seemed, in several respects, to run counter to the requirements of the Railway Labor Act as we have construed it' and `Congress has established an expert body to settle "minor" grievances like petitioner's which arise from day to day in the railroad industry. Congress invested the Adjustment Board with the broad power to arbitrate grievances....'

"The Court also stated:

"`The courts below were also of the opinion that the Board went beyond its jurisdiction in appointing a medical board of three physicians to decide for it the question of fact relating to petitioner's physical qualifications to act as an engineer. We do not agree. The Adjustment Board is not limited to common law rules of evidence in obtaining information.

* * * *

"`On the question like the one before us here, involving the health of petitioner, and his physical condition to operate an engine, arbitrator's would probably find it difficult to find a better method of arriving at the truth then by the use of doctors selected as those doctors were. We reject the idea that the adjustment Board in some way breached its duty or went beyond its power in replying as it did upon the findings of this Board of doctors, .....'

"Consequently, in light of the above, the instant case is remanded to the parties who are herewith directed to each select a competent and qualified physician, who shall then select a third and neutral doctor, who is a specialist in the field of Claimant's alleged medical deficiency. Such selected tri-parte medical board or panel shall examine Claimant and review his physical condition and determine, in the light of all the duties that his job requires, his capability to work as an Engine House Foreman at St. Thomas. A majority vote of such medical panel shall be determinative of Claimant's capability and such decision shall a be final and binding disposition of this dispute."

Third Division Award No. 16316 (Engelstein)

"Since the findings of Dr. Roth did not agree with those of his personal physician on March 28, 1966, Mr. Tarasevich requested that he be given an examination by a neutral doctor. The General Signal Supervisor rejected his request, stating that the medical conclusions of Dr. Roth were binding. On April 28, 1966, the General Chairman made another request in writing to the General Signal Supervisor for an examination by a neutral physician. Carrier again denied the request on June 6, 1966, and Mr. Tarasevich was not permitted to return to service.

"Claim is made on behalf of Mr. Tarasevich that Carrier violated the Signal Agreement when it failed to permit him to return to work or to grant his request that a neutral doctor be appointed to examine him.

"Carrier's denial includes the argument that the Agreement does not require that it grant a physical examination of employes by a neutral physician. It also questions the sincerity of Mr. Tarasevich's desire to work in view of the fact that when he was examined by Carrier's physician on May 18, 1963, and found fit for light work only, he failed to seek such work. In September, 1963, he instituted a claim against Carrier in which he alleged a permanent injury received in 1960 for which he was awarded a settlement of $5,000.00 in April, 1965. Carrier points out that Mr. Tarasevich disregarded the evaluation of Dr. Cooper on April 4, 1963, that he was ready to return to his regular work. Furthermore, Mr. Tarasevich applied for a disability pension under the Railroad Retirement Act in November, 1963, in spite of his private physician's findings that he was ready to return to work.

"Although it is generally recognized that Carrier has the prerogative to determine the physical qualifications of its employes, it is expected that its decision be based upon reasonable medical certainty, and no man be disqualified arbitrarily or capriciously. There are instances in which medical findings are in conflict, as was true in the instant case. Before Mr. Tarasevich bid for the Signal Helper position in November, 1965, he was off duty for approximately two years. During this period, in examinations on March 8, and May 28, 1963, the company doctor found him fit for light work only. His own personal physician, Dr. Cooper, however, found him physically unfit for service. In March, 1966, the company doctor declared him physically unfit for work, whereas the same personal physician made a written statement that Mr. Tarasevich suffered no disability and had his permission to return to his regular previous occupation and to bend, lift, dig and climb.

"It is true that Mr. Tarasevich chose to disregard the advice of his personal physician when he applied for a disability annuity, but this action does not alter the fact there is conflict of opinion of the two doctors. Under these circumstances we find there is need for additional medical data to determine the physical fitness of Claimant to return to work. Accordingly, we direct that on or before July 1, 1968, Carrier and Claimant or his representative select a neutral third doctor for the purpose of examining Mr. Tarasevich and that the company doctor, Claimant's personal physician and the neutral doctor present a written report to this Division of the National Railroad Adjustment Board on or before August 1, 1968, stating their conclusion as to the physical qualifications of Mr. Tarasevich for restoration to service as of March 28, 1966.

"The final disposition of the claim by this Division shall be made after receipt and consideration of the medical report as directed above."

Third Division Award No. 16585 (Engelstein)

"Award No. 16316 directed that Carrier and Claimant or his representatives select a neutral third doctor for the purpose of examining Mr. Tarasevich and that the company doctor, Claimant's personal physician, and the neutral doctor present a written report to this Division of the National Railroad Adjustment Board on or before August 1, 1968, stating their conclusion as to the physical qualifications of Mr. Tarasevich for restoration to service as of March 28, 1966.

* * *

"On the basis of this report we find that Mr. Tarasevich is physically qualified to return to work. since the parties through their neutral doctor have not expressed themselves on the physical qualifications of Mr. Tarasevich to return to service as of March 28, 1966, as requested in Award No. 16316, we are unable to determine if he was physically able to return to work on that date. We therefore restore him to service with pay to commence on June 18, 1968, the date the neutral doctor determined he was physically fit to resume his duties."

Second Division Award No. 6539 (Lieberman)

"Unequivocally Carrier stated that Claimant was being held out of service because of medical disqualification: no other reasons are given. However, Dr. Richardson subsequently executed an affidavit wherein, among other things, he stated:

"`While there may not be any actual physical impairment preventing Mrs. Hicks from performing her duties as Coach Cleaner, I am satisfied that her conviction that she cannot work in a suitable or acceptable manner serves as a bar to her returning to work and fulfilling her duties.'

"Although physicians on occasion may exceed the bounds of medical diagnosis in dealing with problems, this Board makes no pretense at being able either to resolve a conflict in technical medical testimony, or to diagnose emotional problems. It is generally recognized that Carrier has the prerogative to determine the physical or medical qualifications of its employees; however, such determinations should be based on reasonable medical certainty. (See Third Division Award 16316) The instant case presents both conflict and contradictions in the medical evidence. For this reason we find that there is need for additional medical data to determine the physical fitness of Claimant to return to work. Therefore, we direct that Carrier and Claimant (or her representative) select a neutral third doctor for the purpose of examining Claimant, and that the Carrier's physician, Claimant's personal physician and the neutral doctor present a written report to this Division of the Board, within sixty (60) days of the date of this Award, stating their conclusions regarding the physical qualification of Claimant for restoration to her job as of October 19, 1970 and at present. The neutral doctor's report need not be concurred in by both of the other doctors. A detailed explanation of the duties of a Coach Cleaner shall also be supplied to the neutral doctor (By Petitioner and Carrier) so that he may properly evaluate the physical fitness of Claimant to perform the job.

"Upon receipt and consideration of the medical report directed above, the board will make its final disposition of this claim.

"A W A R D

"Claim remanded to the property for additional medical data."

In Second Division Award No. 6574 (Lieberman) citing Award 6539 held as follows:

"`Therefore, we direct that Carrier and Claimant (or her representative) select a neutral third doctor for the purpose of examining Claimant, and that the Carrier's physician, Claimant's personal physician, and the neutral doctor present a written report to this Division of the Board, within sixty (60) days of the date of this Award, stating their conclusions regarding the physical qualification of Claimant for restoration to her job as of October 19, 1970 and at present. The neutral doctor's report need not be concurred in by both of the other doctors. A detailed explanation of the duties of a Coach Cleaner shall also be supplied to the neutral doctor (By Petitioner and Carrier), so that he may properly evaluate the physical fitness of Claimant to perform the job.

"`Upon receipt and consideration of the medical report directed above, the Board will make its final disposition of this claim.'

"It would appear difficult for anyone to fail to comply with the relatively simple and straightforward instruction quoted above. Both the Carrier and the Organization have managed to do this, primarily by failing to communicate effectively with one another on the property. It is our observation that a mature and effective collective bargaining relationship ought to be able to cope with a simple matter such as this.

"The Carrier in its memorandum accompanying the medical report objects to the Board having failed to cede to the neutral physician and his medical judgment the ultimate determination of this matter. We should like to make it clear that we have no right or desire to cede our prerogatives and authority to a neutral physician or anyone else (See Award 4792 and 4693).

"The neutral physician, in his report dated July 30, 1973 stated:

"`I had the pleasure of examining Mrs. Pauline Hicks on July 27, 1973.

"`I can find no evidence of significant physical or mental aberration at this time that would preclude her returning to full employment.

"`Please see enclosed general report.'

"Based on the medical report quoted above we find that Mrs. Hicks is physically qualified to return to work. However, since the parties through the neutral doctor have not expressed themselves as to the physical qualification or Mrs. Hicks to return to work as of October 19, 1970, we are unable to determine if she was physically able to return to work as of that date. We therefore restore her to service with pay to commence on September 1, 1973. (See 3rd Division Awards 16585 and 16316 and 2nd Division Award 5856).

"A W A R D

"Claim sustained; Claimant will be restored to service with pay to commence September 1, 1973; all other rights will be unimpaired; no interest will be paid."

First Division Award No. 24263 (Meyers)

"This Board has reviewed the evidence and testimony in this case, and we find that the Carrier improperly has barred the Claimant the right to return to work simply because he received an award of monies resulting from his injury. This Board understands the Carrier's argument that the Claimant contended in his court case that he was permanently disabled as a result of the injury and, consequently, was awarded nearly a quarter of million dollars. The Claimant then released the motel, but did not voluntarily relinquish his seniority rights with the Carrier.

"It is possible that the Claimant did fully recover from his injuries. However, this Board is not in a position to determine whether or not the Claimant is physically fit enough to return to work.

"Consequently, this Board must find that the Carrier arbitrarily removed the Claimant from the seniority roster without justification or a resignation by the Claimant. The Carrier is without authority to do that.

"This Board finds that the Carrier and the Organization must form an independent panel of qualified doctors to complete a physical examination of the Claimant in an effort to determine whether or not he is physically fit to return to work. The record reveals that the Claimant's doctor released him for service on July 10, 1990. He was then given an examination by the Carrier in August of 1990. This Board further orders that the monetary award received by the Claimant not be considered by the doctors in making their determination as to whether or not this Claimant is in a physical position to return to work.

"The Carrier and the Organization are ordered to convene a tripartite panel of doctors who will independently evaluate the Claimant's condition and determine, without being given knowledge of the previous monetary award to the Claimant, whether this Claimant is physically fit to return to his work as an engineer. If the panel determines that he is physically fit, then he shall be returned to work, but without back pay. This Board is not in a position to determine whether or not the Claimant was physically fit for the past three years; and, therefore, we are without sufficient evidence to award back pay."

Public Law Board No. 1981 Case No. 1a, Award No. 1a, (Zumas) (BLE/Southern Pacific RR)

"The three-doctor panel to decide an employe's 'physical fitness to remain in service or have restrictions modified.' This language clearly empowers the medical panel to determine not only to diagnose his physical condition but also to determine whether a Claimant was physically fit to perform service with or without restriction."

Public Law Board No. 1981, Case No. 1b, Award No. 1b, (Zumas) (BLE/Southern Pacific RR)

"The awards of that Board are directly contrary to the Supreme Court's decision in Gunther decided some six years later."

Special Board of Adjustment No. 910 (Case No. 225) (Weston) (UTU/Consolidated Rail)

"There is no evidence before us that Carrier unreasonably delayed claimant's return to duty after the illness went into remission."

Third Division Award No. 29444 (Simon) (Johnson/St. Louis Southwestern Railway)

"Was wrongfully withheld from service during the pendency of this claim."