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July 24, 1946


The opinion of the court was delivered by: FORMAN

This matter is before the court upon notice and petition filed under the provisions of the Selective Training & Service Act of 1940, as amended, 50 U.S.C.A.Appendix, § 301 et seq. Plaintiff alleges that he is entitled to reinstatement in his former position following his discharge from the Service and claims compensation for loss of wages suffered by reason of defendant's refusal since January 1, 1946, to re-employ him as Medical Director.

On June 8, 1934, the defendant which employs about 1800 persons changed its insurance carrier and undertook to operate and control investigation and defense of claims and medical supervision of employees which theretofore had been controlled by the carrier. Plaintiff was employed as chief company physician 'in a capacity similar to that of * * * general legal counsel.' Salary was not agreed upon, but plaintiff was to submit monthly bills based upon his estimate of the value of his time and work. Bills for $ 400 and $ 600 for the first and second months were submitted, but afterwards it was agreed that he should be compensated at the rate of $ 250 monthly for his executive work and should be allowed, in addition, fees for medical examinations, treatments and unusual conferences. The carrier, however, reimbursed the company for the monthly allowance of plaintiff and for the fees and expenses of other physicians, counsel, and investigators in connection with claims against the company and any following litigation. Plaintiff occupied a desk in an office shared with defendant's Safety Director, Claims Investigator and Welfare Director when he took up his duties in 1934. It was his suggestion that a trained investigator be employed, and he also desired a change in company counsel. He revised medical forms used by the company, was responsible for the designation of physicians for pre-employment examinations in various localities and made these examinations himself on applications for employment from persons residing in the vicinity of Asbury Park, New Jersey, for which he received fees in addition to his monthly salary. At his company office he did only executive work in the nature of reviewing his files on compensation cases, non-compensable cases and pre-employment medical records.

 He maintained three other offices -- two for other business concerns where he served as Medical Examiner, and one for general practice. He was also attending surgeon on the staff of two hospitals and was retained as Medical Examiner for another concern. His gross yearly income averaged between $ 20,000 and $ 24,000.

 He testified that he appeared daily at his office in defendant's plant, but he decided when to call, and arranged his own vacation schedule. His visits to this office on the average were for a minimum of fifteen minutes and a maximum of one and one-half hours. In 1939 he participated with defendant's employees in group insurance in the amount of $ 6,500 which presumably was based on his pay schedule, and the monthly premiums were deducted from his salary. During his employment he received no instructions, was never criticized and received only commendation.

 Plaintiff entered the United States Army as a Major October 6, 1942, was discharged as a Lieutenant Colonel November 28, 1945, and his terminal leave expired February 2, 1946. Previous to his entry into the Service he discussed a leave of absence with company officials and its vice-president, Mr. Polhemus, advised him by letter dated September 29, 1942 as follows:

 'So far as leave of absence is concerned you have it, of course, but I am forced to add, for what it may be worth. Conditions are such that I cannot avoid the qualification inasmuch as your office is an appointive one and upon your return must be disposed of by those who then may be in charge. I need not reassure you that if Tom and I are still in the picture and needs require it, you will surely be back to your old post.'

 During his absence there was a shift in the presidency and upon his discharge he discussed re-employment with defendant's new president. He indicated on two occasions his desire to return, made formal request by letter dated December 27, 1945, for reinstatement January 1, 1946, to which he received this reply from the president of the company dated January 3, 1946:

 'I am at a loss to understand any basis on which you may assert any claim to resume employment. I will be pleased to hear from you as to any reasons or basis on which you may assume to place such a request.'

 In 1944 ownership of defendant's company changed, its common stock came under the control of The Associated Gas & Electric Company, now General Public Utilities Company, and the immediate holding company became NY PA NJ Utilities Company. At this time the defendant again changed carriers, and the new carrier is the one generally used in the new system of ownership. Defendant no longer operates the department formerly supervised by plaintiff. Its investigator went into the employ of its former carrier, and the present carrier employs counsel and medical examiners of its own choosing. When accidents occur defendant makes a report to the carrier, and it handles the matter from that point.

 The company, however, continues to require pre-employment examinations which are made by physicians in various localities depending upon the residence of the applicant. Review of these records which was formerly made by plaintiff is now done by defendant's safety department and if any question arises it is referred to the examining physician. Review of non-compensable cases formerly made by plaintiff is now handled by defendant's Welfare Department.

 Defendant's vice-president testified that under the present arrangement there is no place or need for medical activities previously performed by plaintiff.

 The pertinent section of the Selective Training and Service Act provides as follows:

 '(B) if such position was in the employ of a private employer, such employer shall restore such person to such position or to a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible ...

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