CASE NO. 5


PARTIES ) BROTHERHOOD OF :?AINTENALNCE OF WAY E.',LDLOYEES
 TO ) and
 DISfU-TE ) FORT WORTH AND DENVER RAILWAY COMPANY
 STATEMENT 1. That the Carrier violated the Agreement
 OF =AI_2: when they refused to permit Trackman R. E.
 Vaughn to resume duties April 22, 1920
 after having been released from medical
 treatment.
 2. That the Carrier shall compensate Trackman
 R. E. Vaughn for loss of earnings suffered
 between April 23, 1980 and :?ay 19, 1990.
 FINDINGS: By reason of the Memorandum of Agreement signed
 November lb, 1979, and upon the whole record and
 all the e·ridence, the Board finds that the parries herein are employe
 and carrier within the meaning of the _'-ailway Labor as amenaed,
 and that it Has urisdictiCn.

 Cr. .'aril 20, 1900, Claimant :.Tas inured, in an o==wuty Autamob.ile accident. '='::e DCCtCr treated ^iL -Cr 337_=31=. or C°'=131 i:;:BCieS, 3.^.C t°:8 Doctor 3a·.·T :i.'.:1 3a3in on Z_..^.r11 22, 1-990, when 3e was released for work and full 3Ctivit-T. On April 23, 19G.-O, Ciai.i--ant rePOrted for service wearing a neck brace in which he had ,teen placed by tie Doctor. Claimant, although he presented the Doctor's release, was informed by his Foreman that he would not be Permit=ad to return zo ser-rice for medical reasons and that he should are the Doctor furnish tie necessary medical records to tae Carrier's ChaezSurgeon, and that thereafter the Chief Surgeon would determine whether or not ClaiMan_t should be returned to service.
                                            pt 16 a61;1-f

                                            AWARD NO. 5 (page 2

                                            C?-SE :dO. 5


On May 18, 1980, Claimant furnished tae requested medical records. Such records were promptly reviewed by the Chief Surgeon, and the Claimant was returned to service the next day, May 19, 1980. The Claim here is for loss of earnings suffered between April 23, 1980 and May 19, 1980, and is based upon the language of Rule 32 of the Parties· Agreement, withthe terms relied upon reading:

                "An employe injured will be permitted to return to work promptly upon being released from medical treatment, and his right to do so will not be prejudiced because of litigation or failure otherwise to reach a settlement as a result of such injury."


The Carrier argues that this language specifically applies to employes injured or becoming ill on duty and has no app-iica= tion where an employe was injured off duty as in the instant case. The manifest intention of the Parties as expressed in -the language of their agreement is, of course, most likely to be revealed in the whole language of the Rule rather than in specific terms taken out of
 c*ext. The Rule 32, taken as a whole, reads:
 c

                "Rule 32--I1TJURIES--SICMMSS


        An employe injured or becoming ill on duty,or in the course of his employment shall be given prompt medical attention. In the event such injured cr ill employe is working or stationed at a point removed =tom where medical attention can be obtained, the Company will provide means of transportation to secure treatment.


        Pn employe injured will not be required to render anT reports or attend investigations until he has been provider. with and released from medical treatment.


        A copy of any accident or injury report will be furnished to the employe rendering same upon request.


        An employe injured will be permitted to return to work promptly upon being released from medical treatment and his riaht to do so will not be prejudiced because of litigation. or failure otherwise to reach a settlement as a result of -such injury,"

                                    A 13

                                        ~Saq


                                    AfYARD V0. S (page 3) CASE v0. S


The language of the fourth paragraph is relied upon by Claimant. The first three paragraphs of the rule expressly con template injuries or sickness of an employee on duty or in the course of employment. Paragraph four concludes with the clause, "...and his right to do so will not-be prejudiced because of litigation or failure otherwise to reach a settlement as a result of such injury." Does "such injury" contemplate an off-duty injury." In view of the context of paragraphs 1, 2, and 3, and in view of the possibility of litigation and settlement expressed, which appear to relate to the employment relationship with the Carrier, it does not seem reasonable to believe that the contracting parties to Rule 32 intended that "such injury" meant off-duty injury. it is held, accordingly, that the language of Rule 32 relied upon by Claimant means "an employee injured or becoming ill on duty, or in the course of employment." The claim, accordingly, lacks agreement support.

 The record is silent concerning the delay between April 23, 1980 and May 18, 1980 in Claimant's furnishing to the Carrier the required information.

 The evidence of record is clear, and the connection is apparent, between the accident involving Claimant on April =0, 1980, and the wearing of the neck brace by Claimant on April '<3, 1980. It was not unreasonable to believe that the wearing of the neck brace at that time indicated the possibility of a major and not a minor injor;r requiring additional information. Although Claimant had release from his personal Doctor, the Carrier's responsibilities under the law did not cease. The record calls for the conclusion that the Carrier was not arbitrary and Od not discriminate against Claimant, or act in bad faith in the circumstances of this case.
 AWARD NO. 5 (page CASE NO. 5

 1. The Carrier is not in violation of the Agreement.

 2. The claim is denied.

 JOSEPH 19ZAR, CHAIRMAN AND NEUTRAL MEMBER
S. E. FLEMING, E MPLOYi MEMBER

 DATED: % ="' - /

    z


      01

B. J. MASON, CARRIER MEMBER