Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13484
Docket No. 13377
00-2-98-2-64
The Second Division consisted
of
the regular members and in addition Referee
Edward L. Suntrup when award was rendered.
(Brotherhood Railway Carmen Division
( Transportation Communications International Union
PARTIES TO DISPUTE:(
(CSX Transportation Inc. (former Baltimore & Ohio
( Railroad Company)
STATEMENT OF CLAIM:
"Claim
of
the Committee
of
the Union that:
1. Claimant C. E. Earnest was not allowed to return to duty after his
doctor released him. The Carrier's Medical Department held
Claimant out
of
service until his restriction was removed. The
Carrier's Medical Department allowed a junior employee, D. J.
Johnson, to return to duty with numerous restrictions two months
later.
2. Carrier has demonstrated discriminatory actions toward their
medical releases by allowing one employee to return to work with
restrictions and not allowing all employees the same courtesy.
Carrier's action deprived Claimant
of
work from July 22, 1997
through date
of
Thomas G. Cook. MD. letter to Claimant denying
his return because he had restrictions on him until August 25, 1997
when the restrictions where (sic) removed and Claimant returned
to work. We are claiming from July 22, 1997 until he returned to
work on August 25, 1997 twenty-three (23) working days as time
lost. This claim is filed under Rule 33
of
the Controlling
Agreement."
Form 1 Award No. 13484
Page 2 Docket No. 13377
00-2-98-2-64
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
A claim was filed by the Local Chairman on behalf of the Claimant on September
19, 1997 on grounds that he was kept out of work for 23 days despite the fact that the
Claimant's doctor had released him to return to work with light duty restrictions after
he had an operation for carpal tunnel syndrome. According to the claim the Carrier had
permitted another employee to return to work with restrictions and it should have
permitted the Claimant to have done the same.
The claim was denied by the Carrier on grounds that the Claimant did indeed
have physical restrictions imposed by his physician, whereas the other employee whom
the Claimant references in his claim had respiratory ailments. According to the
Carrier, the two ". . . medical conditions were not similar . . . :'
After a review of the full record the Board concludes that the instant claim should
be dismissed. The record shows that on February 2, 1998 the Claimant unilaterally
signed a Settlement Agreement with the Carrier that contained a provision whereby the
Claimant released the Carrier of all outstanding claims. According to the terms of that
Agreement, which included a sum not specified to the Board, the Claimant released the
Carrier from:
".
. . all legal liability for personal injuries as set forth herein, including
claims, causes of actions, actions, verdicts, judgments, or awards of money
damages, costs, fees, and expenses incurred, and demands for monetary
compensation of any nature . . . ."
Form 1 Award No. 13484
Page 3 Docket No. 13377
00-2-98-2-64
in connection with the Claimant's carpal tunnel syndrome. The Board has ruled on
numerous occasions that a claim must be dismissed in the face
of
such a waiver. See
First Division Award 24045; Second Division Award 13034 and Third Division Awards
20832, 26470, 26694, 32572 and 32573.
AWARD
Claim dismissed.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Second Division
Dated at Chicago, Illinois, this 11th day
of
January, 2000.