maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him."

Award 3476 covered a similar case and following is excerpt from Opinion of Board therein denying the claim:

"We are of the opinion that the claim cannot be sustained. The claimant did not supply to the jury medical information that was labeled as conjecture, guesswork, or supposition. He sought to prove that never again would he be able to perform any laboring service in the railroad industry. Carrier offered no contrary medical testimony. The claimant succeeded in his proof. Since he was compensated for permanent disablement in this respect, we do not think claimant is entitled to escape the consequences of his successful endeavor by contending, in effect, that the basis upon which he obtained judgment from the carrier was all a mistake."

There is no merit to the claim ands it should be denied.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The Claimant, Coach Cleaner Mrs. Gussie M. (Williams) Cone, an employe for 18 years at Carrier's Hialeah Shops, Hialeah, Florida, sustained an on-duty injury on May 16, 1959, while alighting from a passenger coach.

The Claimant reportedly suffered injuries to her neck, back, and the left shoulder, axm, knee and leg.

In May 1960, the Claimant sued the Carrier and the Jury-in compensation for her injuries-awarded her damages in the amount of $17,787.00, less the sum of $2,366.39 in Railroad Retirement Benefits which had been paid to her.

The Claimant tried to work in 1960 but "had to give it up September 24, 1960 as she was not able to work."

On October 3, 1961, the Claimant's physician Dr. E. Smith, gave her the following statement:

"Re: Gussie Williams

"This patient has been released for full time regular work."

On October 4, 1961, at 11:45 P. M. the Claimant requested Car Foreman M. C. Foster to restore her to service but he declined to do so. Subsequent

similar requests to an ascending level of Carrier officials produced negative results.

The Claimant's contention that at each interview with Carrier officials she proffered to them. Dr. Smith's statement is denied by those officials.

The Claimant's duties-regarding which she testified at the trial "she was never able to do her work any more"-consist of cleaning the interior of passenger cars, ventilators, ceilings, overhead racks, and sweeping, mopping and vacuuming.

The record reveals that the Claimant does not have full use of her left hand, arm and shoulder and only has limited neck movement.

The Claimant's own physicians, Doctor Burbacher testified in court that the Claimant "had 15% permanent disability of her upper left extremity"; while Dr. Keedy stated that "she had a permanent disability of between 15% and 20% of the body as a whole, which would interfere with her normal activity";

The record also indicates that the Claimant stated that "with a weak left hand and arm it would be hazardous for her to get on and off cars with her work equipment, including mop, bucket, cleaning fluids, vacuum cleaner, x: ~ x»

From the facts set forth above, the Board is convinced the Claimant could not satisfactorily and safely perform the duties of her car cleaner's position, and that the Claimant was not "wrongfully deprived of her service rights on and after October 4, 1961."

Accordingly, the Board must deny Part 1 of the claim and dismiss Part 2.

AWARD