AWARDS 89 - CLAIMANT PERMANENTLY DISABLED - THEN MAKES CLAIM FOR NOT BEING RETURNED TO WORK - DENIED

Second Division Award No. 12098 (Fletcher)

"This Board, on a number of occasions, has issued Awards concluding that an injured employee may be estopped from returning to service after successfully maintaining that as a result of an on-duty injury he is permanently disabled from working in his Craft. In this regard see Second Division Awards 11641, 11621, 11464, 11266, 11187, 9921, 8727 and 7976, all of which concluded that:

"`... a person will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same subject matter in the same or successive actions. That is, a person who has obtained relief from an adversary by asserting and offering proof to support one position may not be heard later, in the same or another forum, to contradict himself in an effort to establish against the same party a second claim or right inconsistent with his earlier contention.'

(Third Division Award 6215)

"The Claim is without merit and will be denied."

Second Division Award No. 12146 (Sickles)

"The Claimant entered into a `Settlement and Final Release of All Claims' on June 2, 1988, in which he accepted an amount of money as full settlement and satisfaction concerning his Federal Employee's Liability Act litigation.

"On August 12, 1988, the Claimant sought to return to work since he then alleged that he was physically qualified. The Carrier's Medical Department advised that the employee's sworn testimony and medical evidence presented in the recent litigation precluded such a return and because of unequivocal statements of permanent inability to work the Claimant was estopped from claiming otherwise. This claim ensued.

"The parties have argued time limitations, asserted waivers of same, continuing claim liability, etc. Our resolution on the merits of the dispute make it unnecessary to reach a conclusion on those assertions.

"Although there is an assertion that certain documentation was not handled while the dispute was under active review on the property, the initial denial referred to evidence and testimony presented in `recent litigation.' It is appropriate for this Board to review that testimony. The Claimant clearly insisted that his back injury had precluded him from working for the Carrier or to obtain any other work as an electrician in the entire city of Jacksonville. Certain of that testimony was given in late 1987, but when the Claimant signed a final release in June of 1988, he obviously still relied upon those representations.

"The Carrier has cited a number of Awards on the concept of estoppel which have precluded a Claimant from taking one position in one forum while maintaining another position when it is to his advantage. Regardless of the legal label to be affixed in general terms in cases not before us, we are of the view that this record clearly shows that the Claimant sought to take action in diametric opposition to his assertions which enabled him to obtain a $95,000 settlement."

First Division Award No. 24116 (Goldstein)

"This Board has carefully considered the arguments of the parties as well as the plethora of precedent Awards cited and the various decisions of the courts which have been referenced. It is our view that Carrier acted properly in denying Claimant's request to return to work. The majority of Awards we have reviewed apply the doctrine of estoppel when: a claimant is allegedly injured on-the-job and files a claim and/or a lawsuit against the Carrier under the Federal Employers' Liability Act; Claimant represents himself as being incapable of resuming his former occupation; relying on testimony of the Claimant, his medical expert, or the representations by his attorney during the proceedings, he is awarded a monetary judgment. See, e.g., PLB 1735, Award 1 (1976); PLB 1917, Award 14 (1981); Second Division Awards 11621; 11641; 7976; Third Division Awards 23820; 27302; 6215.

"Such is the scenario in the case at hand. Claimant asserted in a judicial proceeding, and introduced evidence tending to prove, that he was unable and would be unable to resume his occupation or employment with the Carrier. He claimed damages and thereafter recovered a verdict based upon those representations. It is our view that Carrier's conclusion as to Claimant's physical disqualifications, predicated on the representations at the judicial proceeding, and its refusal to reinstate the Claimant under such circumstances, was not arbitrary or capricious. Claimant is estopped from now asserting in this forum that his physical condition is inconsistent with that upon which his trial verdict was based. As noted by the Board in PLB 1493, Award 10, 'In effect, the doctrine of estoppel says, "You can't have it both ways. You either are or you are not."'.

"Furthermore, we are unimpressed with the Organization's assertion that the testimony given by Claimant and his expert at trial were merely opinions, or that the small size of the verdict suggests that the jury did not take into account future lost earnings. The critical issue is what the employee contended at the time of the trial, as the vast majority of Awards on this subject so indicate.

"Accordingly, we conclude that Carrier had a sound basis for not allowing Claimant to mark up for duty when he requested to do so. Carrier was entitled to rely on the assertions advanced by Claimant and the medical testimony presented on his behalf that his injury to his back permanently disabled him from working as a railroad engineer."

First Division Award No. 24163 (Twomey)

"We find that the Claimant's case presented at trial on his behalf was that of an individual who was permanently disabled and would be unable to work again as a railroad brakeman. We find that the jury's award took into account and duly awarded him damages based on his loss of future earnings as a railroad brakeman, and that such compensation substantially continued in the $475,000 settlement of this case. The fact that the Claimant deleted the language from the release does not require that the Carrier return him to service. The release signed by the Claimant did not affirmatively state that the Claimant had a right to return to employment. Nor did the Carrier ever waive its right to assert estoppel against the Claimant's return to work. In fact the release stated:

"`NO PROMISE OF ANY KIND HAS BEEN MADE TO ME IN CONNECTION WITH THIS SETTLEMENT.'

"This Board then is left to a study of the records relating to the FELA law suit to determine if the doctrine of estoppel is applicable to the Claimant's claim that he is now physically qualified and thus has a right to return to work as a railroad brakeman. Based on the evidence of record, we find that the Claimant is estopped to assert that he is now physically able to return to work, when he obtained a very sizable settlement of his FELA case based in part on the position at his trial that he was permanently disabled and incapable of doing railroad brakemen's work in the future."

Third Division Award No. 30818 (Malin)

"It is clear that Claimant sought FELA damages which included an award for permanent disability. Claimant's doctor testified to permanent work restrictions which would disqualify Claimant from performing his prior job. Claimant's attorney argued that Claimant was permanently precluded from performing Trackman's work and urged the jury to award more than $600,000, representing the present value of Claimant's expected earnings to age 60 or 65. Carrier's attorney disputed the amount that the jury should award if it found permanent disability, arguing that Claimant should be given two years' pay to enable him to take classes or otherwise qualify for other work that he was medically capable of performing.

"The analysis contained in Third Division Award 28217 applies with equal force to the instant proceeding:

'With this record it cannot be disputed that the thrust of Claimant's entire personal injury case and plea to the jury was for permanent disability. Perhaps the magic word "permanent" was not mentioned by Claimant's attorney, but we need not rely here on any single word when the Claimant's position focused with such unalloyed clarity on the end of his employment with the railroad.'

"The brevity of the time period between Claimant's FELA award and his asserted ability to return to duty further calls for the application of the estoppel doctrine. See Third Division Award 29429. Finally, we are not persuaded by the Organization's argument that the size of the award indicates that the jury discounted any claim of permanent disability. As was stated in First Division Award 24116:

'[W]e are unimpressed with the Organization's assertion that the testimony given by the Claimant and his expert at trial were merely opinions, or that the small size of the verdict suggests that the jury did not take into account future lost earnings. The critical issue is what the employee contended at the time of the trial, as the vast majority of Awards on this subject so indicate.'

"Accordingly, we conclude that the Claimant is estopped from seeking reinstatement to duty."

Third Division Award No. 29818 (Simmelkjaer)

"Of particular significance is Second Division Award 11641 wherein a relatively similar dispute Second Division Award 11621 was cited as follows:

'In that Award the Board stated that evidence and allegations presented and made before the court in order to win an award could not be nullified by the Claimant at a later point simply because was to his advantage to do so. The only difference between this case and that one is that here an out-of-court settlement was made. In both cases there were pleadings of permanent injury.'

"Therefore, the Board will follow the Awards which hold the doctrine of estoppel applies to the merits of the dispute and deny the claim."

Third Division Award No. 29662 (Simon)

"After reviewing the record, it is the Board's conclusion that the Claim for reinstatement is inconsistent with the position taken, and successfully argued, by Claimant in the FELA case. Accordingly, he is estopped from now asserting he is fit to return to service. Claimant's litigation effectively terminated his seniority with the Carrier, obviating the need for a further hearing."

Second Division Award No. 12969 (Yost)

"We have carefully reviewed the extensive record submitted in this dispute, which includes transcript of testimony before the Court, its decisions, and a number of prior Awards furnished by the parties. In doing so we note Claimant's cause was vigorously pursued on the property and before this Board by the Organization. It could not, however, overcome the position maintained by Claimant, his physician and counsel in his District Court action that he was permanently disabled to perform physical labor required by Carrier. No evidence to the contrary was submitted to the Carrier. The doctrine of estoppel applies to this claim. See Second Division Awards 11464, 12098, 12146 and Third Division Awards 23830, 24116, 28217, 28719, and 29780 for additional authority on the doctrine of estoppel."

Third Division Award No. 29937 (Mason)

"The estoppel principle has been repeatedly examined by several courts as well as by all Divisions of this Board and Public Law Boards. The Board's conclusion in Award 9 of PLB No. 1795 sums up the situation succinctly, to wit:

'Clearly, Claimant recovered "a large sum of money in satisfaction of his claim", not only for loss of current earnings but for loss of prospective earnings "for a substantial future period" based on permanent disability.

'As was stated by the Court in the Ellerd case, supra:

"In the face of these facts, the applicable rule of law is firmly established that one who recovers a verdict based on future earnings, the claim to which arises because of permanent injuries, estops himself thereafter from claiming the right to future reemployment." (Emphasis added)'

"On the basis of the evidence of record in this case and for the reasons outlined herein, this claim must be denied."