Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11464
SECOND DIVISION Docket No. 11204
88-2-86-2-1
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(The Chesepeake and Ohio Railway Company
STATEMENT OF CLAIM:
1. That Painter Helper Michael D. See was unjustly and excessively
withheld from Carrier service after he notified that he was returning from
sick leave and was examined by Carrier's physicians.
2. Accordingly, See is entitled to be compensated eight (8) hours pay
at pro rata rate for each work day from the date April 24, 1984 until returned
to Carrier service, compensated for lost overtime work opportunity, vacation
rights and all other benefits that are a condition of employment unimpaired.
Also, reimbursement of all losses sustained account loss of coverge under
health and welfare and life insurance agreements during the time held out of
service.
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 employes 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.
After allegedly sustaining an on-the-job injury on June 6, 1981, they
Claimant remained off duty. The record developed on the property reveals
that, on April 5, 1984, the Carrier's Chief Medical Officer, Joseph A.
Thomasino, M.D., wrote to the Claimant, stating that he had been provided a
report of examination by Dr. K. R. Thompson, an orthopedist, which had been
conducted on March 27, 1984. This report indicated that it appeared that they
Claimant's back condition was such that it would not preclude him from returning to duty. The Claimant was asked to arrange for a return-to-duty
examination with Dr. F. Gwinn, one of the Carrier's physicians.
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On May 16, 1984, the Claimant submitted a claim to the General Plant
Manager of the Raceland Car Shops, which in pertinent part stated:
"I was injured June 6, 1981, while on duty at Raceland Car Shops as a Painter Helper, Michael D. See,
ID 2621991. After full recovery from my injury which
was stated by Dr. K. R. Thompson, Orthopedist of Lexington, Ky., which Dr. Joseph A. Thomasino, M. D.
Chief Medical Officer acknowledges in a letter dated
April 5, 1984, also in this letter Dr. Thomasino stated
'Upon review of this examination and other information
in your medical file, it appears that your back condition is now such that it would not preclude your return
to duty.' Dr. Thomasino requested that I see Dr. F.
Gwinn. I made an appointment with Dr. Gwi-nn in which
his report would have released me to return to work.
Dr. Thomasino stated in another letter dated May 2, 1984
that he received a letter from Dr. D. B. Thompson
dated April 9, 1984, Dr. Thomasino interpreted this
letter as saying that I am psychologically unable to return to work. Please find enclosed a statement from Dr.
D. B. Thompson, 1401 6th Ave., Huntington, W. VA. which
explains my condition, from a Psychologists viewpoint.
I reported to D. F. Gwinn on April 24, 1984, I presented
form MD-25 to your office on that same day. I stood for
recall at this date." _
The statement referred to above from, Dr. D. B. Thompson was dated
May 15, 1984. In pertinent part, it concluded that there were no psychological reasons why the Claimant could not return to work.
The Carrier's General Plant Manager, by letter of June 19, 1984,
advised the Claimant that his claim had been rejected, mainly asserting as
follows:
"On May 2, 1984, you were advised by Carrier's Chief
Medical Officer J. A. Thomasino that you were found
medically unqualified for employment with the Chesapeake
and Ohio Railway Company. Further, we understand that
during the proceedings of a jury trial held recently at
Catlettsburg, Kentucky, concerning an injury that was
alleged to have occurred while you were employed at Raceland Car Shop on June 8, 1981, you and a clinical psychologist who testified on your behalf, presented testimony
regarding your permanent disability that would preclude
you from seeking railroad work. You are apparently claiming that you are now medically qualified and should be allowed to return to duty based on an opinion from the same
psychologist who testified on your behalf at trial.
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In view of the testimony presented during the course
of above-mentioned court proceeding that you were perma
nently disabled, it is Carrier's position that you are
estopped from asserting a claim that you are not now
suffering such permanent disability. In any event, Car
rier's Chief Medical Officer has not changed his deter
mination that you are medically unqualified."
On June 29, 1984, the Claimant wrote to the Carrier's General Plant
Manager. Among other things, he stated:
"Enclosed you will find a letter dated June 13, 1984,
from Dr. Joseph A. Thomasino M.D. to a Dr. D.B. Thompson M.A. In this letter you will find that Dr. Thomasino
is asking for additional information on my medical condition. Dr. Thomasino stated that after he received this
information he would reconsider my qualifications for
work. This letter was dated June 13, 1984, your letter
of denial was dated June 19, 1984. The additional information from Dr. Thompson had not even been presented to
Dr. Thomasino. Dr. Thompson has since presented a letter
dated June 25, 1984 which clarifies my medical condition."
The June 25, 1984 letter from Dr. Thompson cited immediately above
mainly stated that the Claimant no longer had any psychological reason preventing him from returning to work.
On August 16, 1984, the Organization's General Chairman appealed the
General Plant Manager's denial to the Carrier's Manager of Labor Relations.
This appeal focused upon the content of the exchange of letters between the
various medical personnel and the Carrier. It did not mention, nor did it
address, the Carrier's estoppel assertion.
On October 11, 1984, the Carrier denied the Organization's claim. As
relevant herein, the Carrier stated:
"Painter-Helper Michael D. See was absent following
June 6, 1981 alleging personal injury. Carrier's Chief
Medical Office, Dr. Thomasino, advised See April 5, 1984
that his review of Sees medical file reflected no objective evidence of back condition that precluded Sees
return to duty. During trial of his personal injury suit
on April 16 and 17, 1984, See, through his attorney and
others, stated that he had suffered a serious, significant, disabling and permanent injury, that the disability
and pain could not be corrected except by wearing a low
back brace use of TENS Unit, and medication and, further,
that See could perform nothing other than, sedentary work.
See personally testified under oath that he was in constant pain and, in fact, could no longer even operate a
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vacuum sweeper at his home and that he was continually _
required to wear a low back brace. Further, medical evi
dence was presented that his back condition was chronic
and irreversible. The trial ended in a defendant's ver
dict. It is apparently your contention that approximately
one week later See had no pain or other physical problems
that would prevent him from working and you state that See
was fully recovered on April 5, 1984.
Initially, it must be noted with respect to the attach
ments to your letter, that Dr. Thompson is a psychologist
not a medical doctor and the letters attached to your ap
peal do not address Sees physical condition. Further,
contrary to your statement that See was fully recovered
on April 5, 1984, See testified under oath to the contrary
on April 16 and 17, 1984. Therefore, it is Carrier's posi
tion that See is estopped from asserting a position incon
sistent with and mutually contradictory to the statements
made under oath personally by See and on his behalf by
others during the trial on April 16 and 17, 1984. In view
of the above and in the absence of citation of a rule vio
lation or evidence presented that would show a Rule viola
tion, your claim is without justification and is denied."
While the Organization has skillfully and with great vigor pursued
the Claimant's cause, both on the property and before this Board, it cannot
overcome the contradiction between the position maintained by the Claimant in
his civil suit, on the one hand, and the contentions, he has presented to the
Carrier, on the other hand. The Claimant attempted to return to work less
than one month after a court hearing in which he and his Doctors produced
evidence to establish his permanent disability. We therefore, follow a long
line of decisions on matters such as this and find that the doctrine of estop
pel applies to the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ancy J. D v#*"'- Executive Secretary
Dated at Chicago, Illinois, this 13th day of April 1988.
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