I~r~ ~'~ i 117 1' fi t~li) -

 Public Law Board-No. 3897 -

 Parties to Dispute
Brotherhood Railway Carmen of the )
 United States and Canada ) Case No. 5
 Vs )
 Award No. 5
 Seaboard System Railroad )

 STATEMENT OF CLAIM











facts and establish responsibility, if any, in connection with the
 Claimant's alleged gambling with a number of fellow workers while
 on duty. Since the Claimant refused to answer questions posed to him
 by the hearing officer at this investigation, apparently on counsel-
 from his attorney, he was charged with insubordination. An investiga
 tion on this second charge was held on September 18, 1979. As a -
 result of this latter investigation the Claimant was found guilty
 as charged and dismissed from service. Appeal and adjudication of
 this discipline was finalized on December 17, 1982 by Award No. 2
 of Public Law Board No. 3067 when the Claimant was reinstated to
 Public Law Board No. 3897 (Award No. 5; Case No. 5) 2/

 service with seniority unimpaired but with no back pay.
 According to the record, which is not disputed by the Organ
 ization, the carrier made a good faith attempt to implement this
 Award after it was rendered in December of 1982. After the Carrier
 experienced some difficulty locating the Claimant he and his Local
 Chairman came to the General Foreman's office on January 28, 1983
 and at that time the Claimant was instructed to see the Claimant's
 physician for a return-to-work-physical on that day prior to 5:00 P.M.
 The Claimant did not keep that appointment and, according to the
 record, "...local (Carrier) officials were unable to contact (the
 Claimant) thereafter".
 It appears less than coincidental to the Board that the Claimant
 did not keep his doctor's appointment on January 28, 1983. It also-
 appears less than coincidental that he apparently refused to give
 the Carrier proper information on where he could be reached during
 the weeks following the Award of Public Law Board No. 3067. Less -
 than a week after the missed January 28, 1983 appointment the Claimant
 was pleading to a jury in Federal Court atLouisville, Kentucky -
 through evidence offered by his personal physician and pleadings
 by legal counsel -that he was disabled and would never again be
 able to perform the physical duties of a railroad Carman. Such
 evidence and conclusions were proffered to the court as the alleged
 result of on-the-job injuries received by the Claimant in February
 and October of 1978 and in May of 1979. In a sworn deposition on
 August 4, 1981 the Claimant's physician expressed an opinion "...
 with a reasonable degree of medical certainty" that:

This deposition was presented to the court as was another by the same physician which was dated August 16, 1982. This latter one
 Public Law Board No. 3897 (Award No. 5; Case No. 5) 3/

 stated that after two subsequent visits by the Claimant no new information was available to warrant that the physician change his-diagnosis of the Claimant nor his view that there was a "causal relationship" between the accidents suffered by the Claimant in 1978 and 1979 and his continuing disabled condition. On February 4, 1983 the Claimant's attorney stated the following to the court: (N)ow the (Claimant) can't work at all. He winds up in surgery and ever bod a tees that he is to tall disabled from the work he rea y knows. emphasis added

 After the Claimant lost his suit in Federal Court and after a pending appeal was withdrawn by his attorney on March 15, 1984 a "To Whom It May Concern" medical form, dated March 20, 1984, was forwarded to the Carrier wherein it was stated that the Claimant had now sufficiently recovered to return to "regular employment". This medical form was signed by the Claimant's same personal physician whose depositions before the court claimed that the Claimant was medically disabled. On July 19, 1984 the carrier's Chief Medical Officer medically disqualified the Claimant from further service. The instant case centers on the refusal by the Carrier to return the Claimant to work after March 20, 1984. The instant record clearly shows that the Claimant made attempts to sabotage the Carrier's efforts to implement Award No. 2 of Public Law Board No. 3067 until it became legally clear to him that he would not win his liability suit against the Carrier in Federal Court. Only five days after this suit against the Carrier was abandonned the Claimant proceeded to bring forth evidence to suggest the opposite conclusion relative to his permanent disability than he had sought in court. Given these facts this Board is estopped from rendering a sustaining Award in the instant case by long and consistent precedent which is found not only in railroad arbitration Awards but also in decisions by the courts. The doctrine of estoppel has been succinctly stated in Third Division Award No. 6215 of the National Railroad Adjustment Board, to wit:
 Public Law Board No. 3897 (Award No. 5; Case No. 5)

 4/

(See also First Division No. 20166; Second Division No. 1672, 7967)

 Pertinent to the instant case the courts have established, in

 Jones v. Central of Georgia Ry. Co. (USCD ND. Ga) 48 LC par. 1856

 that:

Given the evidence of record the claim must be denied.

Claim denied. 74

wad Suntrup, Neutral Member
 n
 J T. '~ms, Carrier Member

                          jtowicz Employee Member


Date: ! - a,~ -~'(a _