PUBLIC LAW BOARD NO. 4402
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) BURLINGTON NORTHERN RAILROAD COMPANY
STATEMENT OF . ,AIM
1. The Carrier violated the Agreement when it improperly withheld
B&B Carpenter J. A. Stewart from service beginning June 13, 1984
(System File #6 Gr./GMWA 84-11-30B).
'_'.
The Agreement was further violated when the Carrier failed and
refused to convene a Medical Board in accordance with Rule 41 as
requested by the General Chairman in his letter dated September 26,
M4 (System File #6 Gr./GMWA 84-11-30C).
3. As a consequence of the violation referred to in Part (1) hereof, Mr.
1. A. Stewart shall be returned to service with seniority and all other
rights and benefits unimpaired and he shall be allowed eight (8)
hours' pay for each work day beginning July 23, 1984 and
continuing until the violation is stopped.
4. As a consequence of the violation referred to in
Part
(2) hereof, the
Carrier shall be required to convene a Medical Board to examine the
Claimant in accordance with the provisions of Rule 41 and the
Claimant shall be allowed the remedy prescribed by Rule 41 E.
QPINTON OF BOARD
At the relevant time, Claimant held the position of B&B carpenter. During the latter
part of 1982 Claimant was involved in an on-duty accident and sustained an injury to his
ankle. Claimant lost some work time but eventually was able to return to duty. After a
routine physical on May 11, 1984, Claimant was determined by the Carrier's physician as
not medically satisfactory for employment. A specific area of concern to the Carrier was
Claimant's ankle problem. Thereafter, Claimant was withheld from service for being
medically unfit for duty. Claims were filed by the Organization protesting the withholding
from service and the failure to establish a Rule 41 medical board. Those consolidated
claims are now before us.
PLB 4402,ward No. 1
J. A. Stewart
Page 2
The claims in this matter allege violations of the Agreement commencing in June
1984. However, on November 21, 1986, Claimant signed a release as part of a settlement
of a lawsuit which suit alleged that Claimant sustained severe and permanent injuries to his
ankle which injuries would cause loss of future earnings. As part of the settlement,
Claimant received $80,000 for injuries arising
oui
of the 1982 accident Aside from
releasing the Carrier from liability arising out of the accident, the release further stated that
" I understand this is a final payment and complete release and includes any claim I tray
have for time lost" On the basis of the record before us, the allegations in this matter are
covered by the release and are ban-c&
AWARD
Claim denied.
Edwin H. Benn
Neutral Member
i ~
E
. J. 1 allinen .. Swans on
'Carrier Member Organization Member
Denver, Colorado
August 11, 1989