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filed: August 18, 1989.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Misc. No. 88-0497.

Sloviter and Greenberg, Circuit Judges, and Fisher, District Judge*fn*

Author: Greenberg


GREENBERG, Circuit Judge.

Robert M. Lewandowski appeals from a judgment entered March 15, 1989, in this action which he commenced by a petition for review of a decision of a public law board appointed under the Railway Labor Act (RLA). The board held that Lewandowski's former employer, Amtrak, did not violate its collective bargaining agreement with Lewandowski's union when it refused to reinstate him when he sought to return to work after being injured on the job on June 15, 1984.

The injury Lewandowski suffered was a torn rotator cuff injury to his left shoulder. As a result, Lewandowski was absent from his employment for a time, returned to work, but then again went on sick leave in March 1985. In April 1985, Lewandowski brought an action against Amtrak under the Federal Employers' Liability Act (FELA) in the United States District Court for the Eastern District of Pennsylvania seeking damages for his injuries. The court conducted a jury trial between Monday, June 9, and Thursday, June 12, 1986. At that time, Lewandowski was still out of work but he testified that he wanted to return to the railroad if he was capable of doing so. He produced deposition evidence from his physician, Stephen L. Hershey, a medical doctor who examined him immediately before the trial that: "I suggested to him that it was becoming clear to me that on a permanent basis his present job at Amtrak was probably beyond his shoulder's ability to tolerate it [sic] and I suggested lighter work if that was possible." To the doctor, this meant work that did not involve lifting with his arms, frequently reaching overhead, carrying heavy things, pulling on winches or getting into awkward places as Lewandowski could not do heavy, physical work.

In his closing argument to the jury, Lewandowski's attorney conceded that Lewandowski was not unemployable. But he argued that the evidence showed that Lewandowski had gone back to work for three months but could not do railroad work so went on sick leave again. He indicated that Lewandowski could only do work that did not involve real physical activity and thus "for the rest of his life he is going to be working at work that doesn't pay the kind of money that he was earning at the railroad." He emphasized that Lewandowski would have reduced earnings for many years and he asked for an award of $221,960. Lewandowski's attorney hammered home on the seriousness of the injury and his permanent inability to return to Amtrak in the following argument:

That is just the first part of the case, ladies and gentlemen. That is the simplest part, because as I said before, Mr. Lewandowski's future is involved too; that 40 years hopefully, maybe even more, but those years down the line when Mr. Lewandowski is not going to be able to work at the railroad. And make no mistake about it, ladies and gentlemen, Mr. Lewandowski is not going to be able to work at the railroad. There is no doubt that Bob Lewandowski suffered that torn rotator cuff. And in spite of the so-called objective testimony of Dr. Sbarbaro, there is no doubt he can work at the railroad now or any time in the future. He can't. He can't go back there now, he can't go back there tomorrow, he won't be able to go back there next year or any other time because the job that he was doing moving all that heavy stuff around, working overhead, Dr. Hershey said 'No way, you can't do that. The only things you can do are light work that doesn't involve pushing, pulling, lifting, putting your arms over your head.' And there are no jobs like that, ladies and gentlemen. There are no jobs like that for Bob Lewandowski at the railroad.

The jury returned a verdict for $120,000, reduced to $72,000 because it found Lewandowski 40% responsible for contributory negligence.

Remarkably on Monday, June 16, 1986, notwithstanding his attorney's plea to the jury on the preceding Thursday, Lewandowski sought to return to work at Amtrak. Amtrak would not permit this and Lewandowski attempted to return again in September 1986, and was again rebuffed. Thereafter Lewandowski filed a grievance under rules 21 and 22 of the collective bargaining agreement between Amtrak and his union which led to the decision of the public law board. Rule 21 deals with the rights of employees out of work for various reasons, including sick leave, and rule 22 is concerned with physical examinations and disqualifications. When Lewandowski attempted to return to work in September he had a note from Dr. Hershey dated September 4, 1986, that said he could return to work with no restrictions or medication.

In its findings, the public law board noted that Amtrak contended that Lewandowski was estopped from advancing his grievance and that the rules on which Lewandowski relied were inapplicable. The board agreed that Lewandowski

was awarded compensation by a jury on the basis of the representation of his attorney that he would be permanently incapable of returning to employment with [Amtrak]. Under those circumstances, this Board finds that [Amtrak] did not act in violation of the Agreement when it refused to reinstate an individual who it was acknowledged was totally incapable of performing railroad work.

The employee member of the board dissented in what he characterized as "the strongest terms." He said that the majority did not deal with the real issue because, in his view, Lewandowski did not ask to be reinstated. Rather, he only wanted to have the medical procedures of the collective bargaining agreement invoked so that, depending upon the outcome of the procedures, he might return to work. The dissenting member criticized the majority for relying on Lewandowski's attorney's argument to the jury that Lewandowski was permanently disabled because a summation is not evidence, Lewandowski did not testify that he was permanently disabled, and the amount of the award showed there was no finding that Lewandowski was permanently disabled. The petition for review followed.

In its memorandum opinion of March 10, 1989, the district court set forth the background of the matter. It indicated that the standard of review was very narrow and that the board's findings were conclusive on the parties and could be set aside only if the board failed to comply with the provisions of the RLA or failed to confine itself to matters within its jurisdiction, or if there was fraud or corruption. See 45 U.S.C. ยง 153 First (q) and Union Pacific R.R. Co. v. Sheehan, 439 U.S. 89, 93, 99 S. Ct. 399, 402, 58 L. Ed. 2d 354 (1978). The court found that it could not conclude that the board erred in holding that Lewandowski was not entitled to a medical examination because of the "well-established principle that an employee who alleged in a FELA action that his injuries prevent him from returning to his railroad employment may be prevented by the doctrine of judicial estoppel from asserting a contrary position in a subsequent action seeking employment reinstatement." The court cited Scarano v. Central R. Co., 203 F.2d 510 (3d Cir. 1953), in support of this proposition. The court pointed out that while ...

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