SPECIAL BOARD OF ADJUSTMENT 1016
* *
* *
* Brotherhood of Maintenance of Way Employes * Award No. 23
Parties
to the
* VS. * Case
No. 23
Dispute
* Consolidated Rail Corporation
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STATEMENT OF CLAIM
(1) The Carrier violated the Agreement
when it failed and refused to comply
with the General Chairman's written
request dated March 23, 1987, to estab
lish a Board of Doctors in accordance
with Rule 29 to examine Mr. J.E.
Dillon.
(2) The Carrier also violated the Agree
ment when it failed and refused to per
mit Mr. J.E. Dillon to fill a Trackman
position on Gang SE-253 on November 5,
6, 7, 10, 11, 12, and 13, 1986 (System
Docket CR-2948).
(3) As a consequence of the violation
referred to in Part (1) above, the Car
rier shall be required to comply with
Rule 29 and promptly establish a Board
of Doctors to examine Mr. Dillon.
(4) As a consequence of the violation
referred to in Part (2) above, Mr.
Dillon shall be allowed fifty-six (56)
hours of pay at the Trackman's rate.
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/GI Lo
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FINDINGS
Claimant, J.E. Dillon, holds seniority in various
classes in Carrier's Track Department. While working as a
Welder on March 22, 1982, he sustained an on-duty injury.
He brought suit against Carrier pursuant to the Federal
Employers' Liability Act (FELA). The case was tried before
a jury and on July 18, 1984, a verdict was returned and
Claimant was awarded $200,000.00. The jury, however,
concluded that Claimant was 50 percent negligent in the'
accident and reduced the judgment to $100,000. Carrier
satisfied the judgment shortly thereafter.
On October 27, 1986, Claimant notified the Division
Engineer's office at Youngstown, Ohio, that he was able to
return to duty. A medical examination was scheduled on
November 4, 1986. The examination never took place and
Claimant was not allowed to return to work. P claim was
filed requesting that Claimant be examined in accordance
with Rule 29 (Board of Doctors) and that he be paid for six
days in November 1986, when he should have been allowed to
work. Carrier denied the claim at every level and it has
been placed before this Board for resolution.
Petitioner takes the position that the jury in
Claimant's case did not conclude that Claimant could never
work for the railroad again. If it did, it would have
granted a much larger judgment and would have stated its
10Rv-23
conclusion in this regard.
Carrier concludes that since both Claimant and his
doctor stated emphatically to the jury that Claimant
would never again be able to work on the railroad, it is
only logical that this fact weighed heavily in the jury's
consideration when it awarded him $200,000. The judgment
was
reduced to
$100,000 only because Claimant contributed
to the accident through his own negligence.
This Board has reviewed the record and the many cases
on both sides of the issue submitted by the parties. Based
on that review, it is the opinion that Petitioner is not
on solid ground in this instance. This Board finds it
difficult to accept the fact that a Claimant can base his
case before a jury on the grounds that he is permanently
incapacitated and is incapable of performing railroad work
and then when he is successful with that plea, turn around and
request his railroad job back. This Board is of the opinion
that the jury took all of Claimant's statements and his
doctor's statements about his ability to perform railroad
work into account. It awarded him $200,000; this is not an
insignificant amount. The award was_only
reduced to
$100,000 because Claimant contributed to the accident.
This Board is persuaded that the award Claimant
received was based on his position that he was permanently
f
(DIlx~23
incapacitated and incapable of ever returning to railroad
work. Carrier has a right to hold Claimant to that
position. Carrier is not obligated in this situation to set
up a Board of Doctors or to pay Claimant for any time
claimed.
AWARD
The claim is denied.
'S. ~m
Carrier Member Employes Member