Upon the whole record. after hearina. the Board finds that the o~nties herein are Carrier and Emolovee s within tote meaning o7. the Railwav Labor- Act. as amended. and that -this Board is duly constituted under Public Law 89-456 and has .jurisdiction of the parties and tyre subject matter:

Claimant Melendrez had been employed by Carrier on March 18. 196 and had a spotless-record up to the time of the incident herein. rl_e record reveal, dial on March ·4.1986. claimant aoparentlv

;usuai"e.d .are iniuev while working on a retainino wall at Milepost 105. He -was cutt.ino a bolt and it snagoed on him causing some=_

tyoa of whiplash effect. Another emolovee witnessed this incident ~nK camc to leis aid. Thn foreman Questioned ClaimArrt with respect

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to the incident. and Claimant resoonded that he did not believe that he had injured himself in the course of the incident.. However. aoornximatelv three-weeks later he advised his foreman that he had sustained an injury on March 4 and filed an accident report at that-- time. Claimant's testimony at the hearina indicated that- tie had gain which became worse as--time went by and ..n Marah f.5 made .an appointment with his doctor and was found by

·-ray to have a pinched disc or pinched nerve at the base of his neck:. C, la i.mant was dismissed. from service follow.ina rove-stloat.won, havina been found guilty of dishonestv and also 1 ate filing of an injury report (some Zl days followina the allemed on the job incident.).

Carrier take= the position that Claimant's injury may or may not. ha-a occurred in view of his testimony and that of his foreman. HowHver. it is obvious that he failed to report the injury until some .'21 days followina the alleaed accident. This failure. wanordinn to Carrier. orevented it from aettxna immediate medical ,ttentionfor a Claimant which wouldhave been for his own well beina as well as to limit the liabilitv of the Carrier. Carrier's rules are clear on this score= anal Carrier- believes that -.its _lecasxon to terminate Claimant was ,justified=

apoarent in the course of the hearing as well as throughout -the entire handlino of this matter. It is also clear. according to Petitioner. that there was indeed an incident an March 4 since Claimant brouoht it to the attention of his foreman at that Lime and another emplovee attested to its occurrence.- The fact that: he did not file his accident reoort until some 21 davs later was because until time oossed the trauma did not become severe enough to cause him to seek: medical attention. Thus he did not know that there indeed was onvthina which could be cateooriyed--as an iniur: until some time after the event took olace. Petitioner believes that it was tolallv imorooer to dismiss Claimant for dishonesty whoa such was not established. nor was it aohrooriate in terms-of his long unblemished record of service.

A=. the Board analvses the record of this disoute. there is at least the strona oresumotion that Claimant suffered an on the job reloted i.rriurv on March 4. While this i..__ indeed a oresumot=on without hard- evidence (in view -of Claimant's -disclaimer of serious iniurrv on the date). it is not established without doubt. however. there its in·suPficient evidence to warrant the conclusion

_f e_lsimant's dishoneatt·with resoent to the incident. There- is the tenable thesis that the :accident could have -occurred and the

svmotoms did not result in any attempt by Claimant to do anvth.ina about it until some time later. It is also evident. however. that Claimant was .indeed derelict and in violation of Carrier='s rules by failing to file -- the accident report until some 21 days following the incident. Carrier is correct in its .insistence that such a transgression- should not go unpunished. It is important "nd serious from every point of view to Carrier that accidents be reported promptly- However, in this instance --in view of Claimant's long unblemished record.- the fact that there was indeed oreStimabl. some incident occurring on March 4. it is believed that the oenaltv of dismissal was far too-harsh for -ti:e particular transgression. Therefore. Claimant shall be returnea to service with all rmahts unimpaired but without compensation for time lost which shall be considered the penalty for his transgression. I-!is return to work. of cnurse. shall be subierct to a return to work ohvsical examination in -view of the type. of