NATIONAL RAILROAD ADJUSTMENT BOARD
- THIRD DIVISION Docket Number
SG-23981
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
Boston and
Maine Corporation
STATEMENT OF CLAIM: "Claim of the General Committee of the Brotherhood of
Railroad Signalmen on the Boston & Maine Corporation:
On behalf of Warren J. Silva, who was injured on duty during November
1975
but not allowed to return to work when he requested to do so February
26,
1979.
1'
OPINION OF
BOARD: The record shows that Claimant entered Carrier's service on
January
31, 1969,
as an Assistant Signal Maintainer. He was
subsequently promoted to Signal Maintainer and to Leading Signalmen. On November
20, 1975,
while performing his duties, he was inured. He subsequently returned
to work on December
6, 1976.
On November
4, 1977,
he laid off sick on the
contention that it was due to the fob related injury suffered in
1975.
As a
result of the alleged on-duty Injury, Claimant entered suit in the United Staten
District Court, District of Massachusetts, in
1978,
asking judgment against the
Carrier because of his lack of income due, the Carrier said to being totally
incapacitated for work.
During the trial of the case a neurosurgeon, Dr. Roth, testified under
direct examination by Claimant's attorney:
"Q. And do you have a specialty?
A. I'm a neurosurgeon.
Q. And will you briefly inform us what neurosurgery is?
A. Neurosurgery is a surgical discipline that concerns
itself with diseases involving the central and peripheral
nervous systems, that is, those illnesses involving the
brain, spinal cord, and any of the nerves wherever they
may be found in the body, as well as the surrounding
bony structures, such as the skull and spinal column,
muscles and ligaments.
Q. In your opinion, doctor, can Mr. Silva anticipate at any
time in the future that he will be able to engage in
unrestricted employment as a signal maintainer?
A. I'm sorry, could I have that statement again or that
question again?
' Award Number 23830 Page 2
Docket Number SG-23981
My opinion is that his condition is now stable and will
not change and consequently will not allow him now or
at any time is the future to return to his former employment as you described.
Q. Is there any surgical remedy that you are aware of that
would alleviate his condition or make him to the point
where he would be able to return to the work force and do
any kind of manual work?
A. No, there is no surgical remedy to his brain damage, neck
injury or back injury to any significant degree.
Q. What would be the effect of the removal of disc material
and splinting with a bone? Would that make any change?
A. It would not be in my opinion cocoon medical practice to
operate on Mr. Silva given his present complaints because
of the very low chance of improving his condition with any
sort of operation whether it be a simple removal of the
disc or removal of the disc with bone fusion. And I have
not planned to do so and would not recommend it.
Q. Will his personality and loss of memory persist for the
rest of his life.
A. Yes, I thick that's fixed.
And will he continue to have pain from time to time far
the rest of his life?
A. Yea, unfortunately."
In his testimony, the doctor revealed that claimant had suffered a
permanent disability which would cause him pain, loss of memory for the rest
of his life; that there was no surgical remedy for his brain damage, neck
injury
or back injury; that it would not be is his opinion, common medical practice to
operate on Claimant because of the very low chance of improving his condition
with any sort of operation.
The Claimant testified:
"Q. Now, during this time that you started in doing this
physical work, is the fall, '77, what were you
experiencing in connection with your back.
A. The pain in my back had increased so much so I had to go
back to the doctor on account of it. And I eventually
ended up in the hospital again.
Q. And were you readmitted to the Symmes Hospital on November
9. 1977.
Award Number
23830
Page
3
Docket Number
SG-23981
A. Yes, sir, I was.
Q. And were you there through November
18, 1977?
A. Yes, I was."
The Claimant's attorney entered into the record the amount of wages
received by Claimant from the Carrier, the sum of
$14,228.00
in
1977
and his
earnings from a part time job that he was working at the time of the court
hearing, June,
1978,
and in his questioning of Claimant, the Claimant testified
further:
"Q. What kind of work did you try?
A. I tried working in automotive repair, a garage.
Q. Name?
B.
Independent Auto, they are in Pelham, New Hampshire.
Q. Pelham, New Hampshire?
A. Yes, sir.
Q. What kind of work did you do there?
A. I was helping the mechanic out. I worked four days
and I had to quit.
Q. What specifically were you doing that made you quit?
A. It consisted of helping him change different things
that were wrong with a car or trying to help him change
tires.
Q. Were you able to do that?
A. I tried it for four days, but I couldn't.
Q. Why?
A. Because of the pain in my back.
Q. What complaints do you have now as you sit here?
A. I still have headaches, I still have a high frequency
deafness in my right ear, I still have pains in my
back, I still have loss of memory.
Q. Anything else?
A. I have photophobia, which is the sun bothers my eyes.
Q. Now, the pain in your back, does that change from time
to time depending on what you are doing?
Award Number 23830 Page
4
Docket Number SG-23981
A. Yes, it does.
Q. How?
A. If I were to do strenuous work, it increases the pain. In
fact, if I do a lot of bending or try to pick up something
heavy, I can't.
Q. Do you get any pain from this fob that you are now
handling, pumping gas?
A. On occasion, yes. If I have to put in -- example 8 or
10 hours, if it's really busy, then it bothers me."
The fury awarded Claimant $163,745.47 which was satisfied on November
6, 1978.
On February 26, 1979, Claimant made request to return to work in
Carrier's Signal Department, which request was not granted. With his request,
Claimant submitted a statement signed by David A. Roth, M. D., reading:
"Warren Silva is under my professional care and I feel
that he is able to return to work on 1/20/79.
Restrictions: No heavy lifting."
The statement was dated January 16, 1979.
On may 30, 1979, the Vice General Chairman of the Organization
submitted a continuous time claim in behalf of Claimant, starting February 26,
1979.
The record shows that no action was taken by either party with respect
to the time claim filed by the representative of the Organization on May 30,
1979, until the General Chairman's letter of September 4, 1980 six months after
a conference with and denial by Carrier's highest designated officer of appeals.
We consider that the failure to handle the time limit issue for this length of
time, brought that issue under the doctrine of equitable estoppel. In Award
15827, Referee Ives, it was held:
"... Acquiescence is conduct from which may be inferred
assent. Under the doctrine of equitable estoppel a person
my (sic) be precluded by his silence, when it was his duty
to speak, from asserting a right which he otherwise would
have had."
See also Awards 17250, 22213 and 22700.
We will also deny the claim on its merits on the doctrine of estoppel.
In its submission, the Carrier cites Jones vs. Central of Georgia Ry. Co.
(USDC ND GA, August 13, 1963) 48 IC
Par.
18562 where the court held:
Award Number 23830 Page 5
Docket Number SG-23981
"It seems to this court the applicable rule of law is firmly
established that one who recovers a verdict based on future
earnings, the claim to which arises because of permanent
injuries, estops himself thereafter from claiming the right
to future reemployment, claiming that he is now physically
able to return to work:"
The Carrier also cites Scarano v. Central R. Co. of New Jersey
203 F2nd. 510 (23 LcPar. 67,540), affirming DC. Pa. 107 F. Supp.
622 (22 LC Par. 67,213); Wallace v. Southern Pac. Co., 106 F. Supp. 742 (21 LC
Par. 66,882); Buberl v. Southern Pac. Co. 9 F. Supp. 11 (18 LC Par. 65,925).
Also cited by Carrier are: Sands v. Union Pacific Railroad Co. (USDC Ore., 1956)
148 F. Supp. 422, 31 LC Par.~.E3); Pend eton v. Southern Pacific Co. (USDC, ND
Cal. 1952) 21 LC Par. 66883); Chavira v. Southern Pacific Co. USDC ND Cal. 1960)
42 14C, Par. 16970).
The carrier has quoted extensively from all of the court cases cited,
of which the Board has taken note, but the quotes will not be repeated here.
The Carrier has also cited numerous Board Awards, and Public Law Board
awards following the decisions of the courts. Among those cited are Award 10
of Public Law Board No. 1493; Awards 1 and 2 of public Law Board No. 1716,
First Division Award 20166, Second Division Awards 1672, 5511, 6129, and Third
Division Award 6215. We think that Third Division Award No. 6215 accurately
sums the matter up:
"The basic philosophy underlying these holdings is that a
person will not be permitted to assume inconsistent or
mutually contradictory positions with respect to the
same subject matter is the same or successive actions. That
is, a person who has obtained relief from en adversary by
asserting and offering proof to support one position may
not be heard later, in the same or another forum, to
codtradict himself in an effort to establish against the
same party a second claim or right inconsistent with his
earlier concession. Such would be against public policy."
The claim will be denied in its entirety.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
That the Carrier and the Employee involved in this dispute are
respectively Carrier and Employee within the meaning of the Railway Labor Act,
as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
Award Number 23830 Page
6
Docket Number SG-23981
A W A R D
Claim denied.
NATIONAL RAIIROAD ADJUSTHNT BOARD
By Order of Third Division
ATTEST: Acting Executive Secretary
National Railroad Adjustment Board
0-00
y
semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of March 1982·
,-
c.