Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12098
SECOND DIVISION Docket No. 11793
91-2-89-2-81
The Second Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(International Association of Machinists and
( Aerospace Workers
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
1. That CSX Transportation, Inc. violated Rules 32 and 34, but not
limited thereto, of the controlling Agreement when it refused to allow
Machinist H. L. Caldwell to return to work during 1984 after an extended
absence due to a job related injury.
2. That, accordingly, CSXT be ordered to reinstate Machinist Caldwell
to active service with seniority rights unimpaired and reimburse him for all
pay and benefits lost.
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.
On August 6, 1981, while on duty Claimant sustained a lower back
injury. In the ensuing FELA litigation an allegation was advanced that the
injury resulted in Claimant's permanent disability. While an FELA trial was
underway on this matter, a settlement was reached on November 16, 1984, under
which Claimant was paid $54,201.47. Subsequently, Claimant contended that his
physical condition improved and he attempted to return to duty. His efforts
in this regard did not gain reemployment and on August 6, 1987, the instant
Claim was filed contending that Rules 18, 26, 27, 32 and 34 were violated when
Claimant was not allowed to return to active employment.
Carrier has defended against the Claim, inter alia, on the basis that
Claimant is now estopped from asserting that he is able to resume his job
because he previously represented that he was permanently disabled, unable to
work as a Machinist and received a monetary settlement on the basis of these
representations.
Form 1 Award No. 12098
Page 2 Docket No. 11793
91-2-89-2-81
This Board, on a number of occasions, has issued Awards concluding
that an injured employee may be estopped from returning to service after successfully maintaining that as a result of an on-duty injury he is permanently
disabled from working in his Craft. In this regard see Second Division Awards
11641, 11621, 11464, 11266, 11187, 9921, 8727 and 7976, all of which concluded
that:
" ... a person will not be permitted to assume inconsistent or mutually contradictory positions with
respect to the same subject matter in the same or
successive actions. That is, a person who has obtained relief from an adversary by asserting and
offering proof to support one position may not be
heard later, in the same or another forum, to contradict himself in an effort to establish against
the same party a second claim or right inconsistent
with his earlier contention."
(Third Division Award 6215)
The Claim is without merit and will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attes :~
ccyY
ever - Executive Secretary
Dated at Chicago, Illinois, this 31st day of July 1991.
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