Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45010 Docket No. MW-45788
23-3-NRAB-00003-190681
The Third Division consisted of the regular members and in addition Referee Richard K. Hanft when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
(Norfolk Southern Railway Company
(former Norfolk and Western Railway Company) STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier failed and refused to comply with the Off Track Vehicle Agreement when the Carrier denied Mr. R. Ward Off Track Vehicle Benefits in connection with an off track vehicle accident that occurred on April 17, 2017 (Carrier's File HW-50NWR).
(2) As a consequence of the violation referred to in Part (1) above, Claimant R. Ward shall now ‘... be provided the coverage under the plan at 80% of his basic full-time weekly compensation ... beginning after the accident and continuing.’”
The Third 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.
Form 1 Award No. 45010
Page 2 Docket No. MW-45788
23-3-NRAB-00003-190681
With this Claim the Organization avers that Carrier violated the Off-Track Vehicle Agreement when its Regional Manager of Claims for Carrier’s Casualty Claims Department on May 24, 2017 denied Claimant’s application for benefits under the Parties’ Agreement.
The Organization contends that Claimant is eligible for benefits under the Off- Track Vehicle Agreement first put into effect by the Parties’ February 10, 1971 National Agreement, as amended on October 30, 1978 and then again on September 26, 1996.
As the Agreement currently provides, in relevant part:
ARTICLE V – PAYMENTS TO EMPLOYEES INJURED UNDER CERTAIN CIRCUMSTANCES
Where employees sustain personal injuries or death under the conditions set forth in paragraph (a) below, the Carrier will provide and pay such employees, or their personal representative, the applicable amounts set forth in paragraph (b) below, subject to the provisions of other paragraphs in this Article.
Covered Conditions -
This Article is intended to cover accidents involving employees covered by this agreement while such employees are operating, riding in, boarding or alighting from off-track vehicles authorized by the carrier and any accidents which occur while an employee is under pay…
***
(d) Exclusions –
Benefits provided under Paragraph (b) shall not be payable for or under any of the following conditions:
(1) …
(2) …
Illness, disease, or any bacterial infection other than bacterial infection occurring in consequence of an accidental cut or wound.
***
Form 1 Award No. 45010
Page 3 Docket No. MW-45788
23-3-NRAB-00003-190681
The employee on whose behalf benefits were sought was a Roadway Machine Repairman whose job duties required him to operate a Federal Motor Carrier Vehicle on public roads and required a Commercial Driver’s License.
Claimant was involved in an accident on April 17, 2017 wherein Claimant, it is undisputed, lost consciousness and hit a tree with the Carrier’s vehicle sustaining serious injury. Claimant has been out of service as a result of the injuries suffered since the date of the accident.
It is the Organization’s position that Claimant was an employee covered by the Agreement, satisfied all of conditions contained in Paragraph (a) of the Agreement and is entitled to 80% of his basic full-time weekly compensation from the Carrier for time actually lost during a period of 156 continuous weeks following the accident in accordance with Section B(3) of the Agreement.
The Carrier, on the other hand, maintains that subsequent to the Claimant being taken out of service as a result of the injuries sustained in the crash, its Chief Medical Officer requested medical information from the Claimant in order to determine his fitness for duty. The Medical Officer, after reviewing the records, reported to the Carrier Management that Claimant had suffered “multiple episodes” related to a seizure disorder for more than fourteen (14) years and was recommended for treatment with an anti-epileptic medication. Inasmuch as Claimant reported blacking out while driving immediately prior to the accident on April 17, 2017, it is and has been the Carrier’s position that Claimant’s illness or disease was the proximate cause of the accident and thus excluded from coverage under the Off-Track Vehicle Agreement.
The Board has carefully reviewed the record in this dispute and find that the Carrier has consistently asserted that the Claimant suffered from an illness which was the direct cause of his accident and that such illness excluded the Claimant from benefit eligibility under the Off-Track Vehicle Agreement.
The Organization has not disputed these statements and has not presented any evidence to contradict these statements. In correspondence between the parties during appeal of Carrier’s decision below, the Organization references Claimant’s personal illness but does not explain what his illness is or why it is not relevant.
The burden of proof with a claim asserting a violation of an agreement lies with the party prosecuting the claim. Given the record in this matter, the Board must find that the Organization has not met its burden of proof that the Carrier was in violation of the Agreement.
Form 1 Award No. 45010
Page 4 Docket No. MW-45788
23-3-NRAB-00003-190681
Claim denied.
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 Third Division Dated at Chicago, Illinois, this 28th day of June 2023.