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Railroad Injury Blog

OSHA Orders $25,000 In Puntive Damages For Illegal Suspension

Friday, July 27, 2012

On July 25, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Union Pacific Railroad Company to pay a Railroader $25,000.00 in punitive damages for imposing a 10 day suspension for reporting an on-the-job injury. The Railroader suffered a serious injury that included the loss of two teeth and facial lacerations when coupled cars came apart as they were being moved in the yard. OSHA determined that the Railroad imposed the discipline even though the Railroader was not at fault. Charles Adkins, OSHA’s regional adminstrator in Kansas City stated that “While OSHA is best known for ensuring the safety and health of employees, it is also a whistleblower protection agency.”

OSHA’s press release can be found here.

By Matt Darby

Railroaders And The Dangers Of Silica Exposure

Friday, July 20, 2012

The Occupational Safety & Health Administration (OSHA) states the following regarding silicosis: “Silicosis is caused by exposure to respirable crystalline silica dust. Crystalline silica is a basic component of soil, sand, granite, and most other types of rock, and it is used as an abrasive blasting agent. Silicosis is progressive, disabling, and often fatal lung disease.” The effects of silicosis are lung cancer, bronchitis, chronic obstructive pulmonary disorder (COPD), Tuberculosis, Schlereroderma and possible renal disease. Click here.

OSHA has indicated that the laying and repairing of railroad track is potential source of crystalline silica exposure. Read here. In 2001, the National Institute of Occupational Safety and Health (NIOSH) issued a report that indicated that “NIOSH investigators determined that a health hazard existed for railroad track maintenance workers from occupational exposure to crystalline silica.” “The hazard was greatest for workers who operated ballast regulating, broom, and tamping machines and for track repairman who dumped ballast.” “When ballast is moved or disturbed, it generates airborne dust which can be inhaled. This has the potential for causing respiratory disease. The risk for silica dust exposure is greater for employees who work alongside the track as opposed to those situated in the cabs of on-track roadway maintenance machines. A copy of the NIOSH study can be found here.

By Matt Darby

OSHA Orders Midwest Railroad To Pay Three Railroaders $650,000 In Back Wages And Damages

Thursday, July 19, 2012

On July 19, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered the Illinois and Central Railroad and the Chicago and Fort Wayne & Eastern Railroad to pay over $650,000.00 to three Railroaders who were discriminated against in violation of the FRSA.

The first case involved an Illinois Central Railroad Conductor who sustained a job related injury who was subsequently fired for alleged rules violations. OSHA determined that he was terminated in reprisal for reporting the work related injury. He was awarded back wages, vacation pay, payment of his medical bills, attorney’s fees and compensatory and punitive damages.

The second case involved an Illinois Central Railroad Carman who sustained a job related injury who was fired for allegedly violating the company’s injury reporting policy. OSHA determined that the injury was properly reported and ordered the Railroad to pay him back wages, compensatory damages and punitive damages.

The third case involved a Chicago and Fort Wayne & Eastern Railroad Conductor who was fired for raising safety concerns while serving as his role as local chairman for the union. The Railroad alleged that he had been fired for failing to pass an engineer certification test. OSHA ordered the Railroad to provide the Railroader with training and another opportunity to pass the test. Upon him passing the test, he was to then be reinstated. The Railroad was also ordered to pay back wages, compensatory damages and punitive damages.

Dr. David Michaels, assistant secretary of labor for occupational safety and health indicated in the news release that “It is critically important that railroad employees in theMidwestand across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns.” He also stated “We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole.”

A copy of the OSHA news release can be found here.

A link to a Chicago Tribune news article can be found here.

By Matt Darby

OSHA And FRA Join Forces To Provide Whistleblower Protection

Tuesday, July 17, 2012

On July 16, 2012, the Occupational Safety and Health Administration (OSHA) announced that it has signed an agreement with the Federal Rail Administration (FRA) to “facilitate coordination and cooperation between agencies regarding enforcement of the Federal Railroad Safety Act’s whistleblower provision.” OSHA’s news release regarding the agreement went on to state that “The safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation", said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “OSHA welcomes the opportunity to work with the FRA to protect these rights and make our nation’s railroads a safer place to work”.

Highlighting the Railroads’ widespread and ongoing acts of discrimination, the press release indicated that whistleblower complaints were on the rise and that “Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the FRSA, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.”

The agreement provides that the FRA will refer whistleblower complainants to OSHA. In return, OSHA will provide the FRA with copies of the complaints it receives and findings and preliminary orders that it issues. In addition, OSHA and the FRA “will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.” The Memorandum of Agreement (MOA) between the two states that the “FRA will also maintain a database of the complaints it receives from OSHA to monitor potential safety problem areas and issues in which FRA may be able to assist OSHA.”

It seems quite clear that despite OSHA’s ongoing work to eliminate discrimination under the FRSA, it needed a strong partner in those efforts. Hopefully, the agreement to share information and resources between OSHA and the FRA will make the Railroads think twice before disciplining its workers for illegal reasons.

A copy of the OSHA news release and Memorandum of Agreement can be found here.

By Matt Darby

Repetitive Trauma Injuries

Friday, June 29, 2012

The terms repetitive trauma injury refers to a disorder that can affect bones, muscles, tendons, nerves and other anatomical features. It develops when micro traumas, or minute injuries, occur repeatedly from overuse or misappropriate use of a body part or external force applied to the body. A study in 1993 found that repetitive trauma injuries accounted for one of every four lost time injuries reported in the United States.

Injuries to the shoulders, arms, hands and wrists such as tendinitis, carpal tunnel syndrome and ulnar neuropathy can be caused by repetitive trauma. Risk factors for the development of these types of injuries include performing repetitive and forceful work in an awkward position and the use of vibrating tools. Railroaders who routinely use both pneumatic and non-power hand tools, move and carry heavy equipment and couple air hoses are at an increased risk of developing upper extremity repetitive trauma injuries.

Injuries in the form of osteoarthritis to the hips, knees, feet and ankles can also be caused by repetitive trauma. Risk factors for the development of these types of injuries include walking on uneven surfaces, repeatedly bending and stooping and working in awkward postures. Railroaders who routinely walk long distances across ballast, climb rail cars, squat to throw switches and couple air hoses and in the past, dismounted moving equipment, are at an increased risk of developing lower extremity repetitive trauma injuries.

By Matt Darby

OSHA Affirms Whistleblower Protection For Non-Complainant Witnesses

Saturday, June 23, 2012

On June 1, 2012, the Occupational Safety and Health Administration (OSHA) made it clear that the identities of non-complainant individuals who cooperate in the Whistleblower complaint process shall remain confidential. In a letter to the Vice President and General Counsel of the Burlington Northern Santa Fe Railroad, Charles W. Shewmake, David Michaels, Ph.D., Assistant Secretary for OSHA, indicated as follows:

“. . . the FRSA’s governing regulations explicitly state that “[i]nvestigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant” 29 C.F.R. 1982.104(d). Moreover, OSHA’s Whistleblower Investigations Manual (2011), available here, expressly provides for the confidentiality of non-management witness interviews and states that such interviews are to be conducted in private.”

More importantly, Dr. Michaels made it clear that non-complainant witnesses are covered by Whistleblower protection once they cooperate in an investigation. Regarding that protection, he stated in his letter as follows:

“We also wish to remind you that it is violation of the employee protections of FRSA to discharge, demote, suspend, reprimand, or in any other way retaliate against an employee who provides information to OSHA or otherwise assists OSHA in an investigation of a FRSA whistleblower complaint. OSHA takes allegations of such retaliation extremely seriously and will not tolerate retaliation against witnesses who cooperate in FRSA whistleblower protections.”

By Matt Darby

OSHA Decision Determines That A Firing In Retaliation For Filing A Whistleblower Claim Is A Serious Violation Of The FRSA

Sunday, April 29, 2012

On March 26, 2012, the Occupational Safety and Health Administration (OSHA) issued a decision in a Whistleblower case that requires CSX Transportation to pay punitive damages for dismissing a Railroader for filing a claim under the FRSA that alleged that he had been disciplined for raising various safety issues.

The case involved a dispatcher who was involved in a near miss incident that involved the misrouting of two trains. After the incident, the dispatcher cooperated in a meeting that involved CSXT and the FRA. During that meeting, the dispatcher raised various safety issues that he felt contributed to the near miss incident. The dispatcher was subsequently fired by CSXT. He then, with the approval of CSXT, exercised his seniority rights so that he could return to his previous craft within the Track Department. On his first day back to work as a trackman, he was fired. This was one day after CSXT received notification that he had filed a claim under the FRSA for his dismissal in connection with the near miss incident and its subsequent investigation.

CSXT was ordered to pay punitive damages in the amount of $100,000.00 for its dismissal of the Railroader. The OSHA opinion regarding that award indicated as follows:

“Respondent’s (CSXT) conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited reckless disregard for the law and complete indifference to Complainant’s rights and the rights of Respondent’s other employees. Discharging an employee for claiming violations of FRSA functions to chill employees from exercising their most basic rights under FRSA.”

By Matt Darby

Whistleblower Decision Illustrates Elements Necessary For A Successful Claim

Friday, March 30, 2012

Several weeks ago, I posted the summary of case decided by Judge Theresa C. Timlin of the U.S. Deparment of Labor that discussed the idea that an absence from work for a non-work related medical resaons is a protected activity under the FRSA. Last fall, she issued a decision in another Whistleblower case that illustrates the elements necessary for a successful claim. The decision is also important because it indicated that the FRSA can be violated even when disciplinary charges are dismissed.

On September 23, 2011, Judge Timlin, after a two day evidentiary hearing, issued an Order directing the Port Authority Trans-Hudson Corporation (“PATH”) to pay a Railroader punitive damages and expunge from her personnel file any disciplinary and negative references concerning an on-the-job injury that was properly reported.

First, a little bit about the facts leading up to Judge Timlin’s involvement in the case. On April 1, 2009, the aggrieved Railroader was injured when she sat on a broken chair that collapsed. She filed an injury report right after the accident occurred. Shortly thereafter, the Railroad issued a letter notifying her that she was required to attend an investigative hearing to determine whether she had engaged in a rules violation for failing to inspect the chair prior to sitting on it. The investigative hearing was postponed and rescheduled several times. The charges against the Railroader were eventually dismissed.

Judge Timlin determined that the Railroad had violated the following elements of the Whistleblower Act. Each of these elements must be proven to recover under the Law.

Protected Activity

Judge Timlin determined that the Railroader had engaged in protected activity by filing the injury report. She indicated that “[T]hese reports are clearly methods by which an employee may notify an employer of a work-related personal injury or work related illness.” Judge Timlin also concluded that the Railroader, had in fact, sustained a personal injury.

Knowledge of Protected Activity

Judge Timlin indicated in her decision that a “decision-maker” who carries out the adverse action on behalf of the Railroad must be aware of the protected activity. It is no enough for the Railroad, as an entity, to know of the protected activity. This element was fulfilled as there was evidence that the Railroader’s supervisor, who brought the charges against her, was aware that the injury report was filed shortly after the accident.

Unfavorable Personnel Action

Judge Timlin determined that the Railroad had taken unfavorable personnel action against the Railroader despite the fact that the charges filed against her were ultimately dismissed. She indicated that the filing of such charges, and then dismissing them, “is likely to have a chilling effect on reasonable employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and being potentially disciplined.”

Contributing Factor

The Act requires that the protected activity must be a contributing factor to the unfavorable personnel action. Judge Timlin determined that the Railroader’s supervisor filed the charges against her because of “information provided in or lacking from the injury report.”

Judge Timlin summed up her decision that the Railroader had fulfilled the elements of her claim as follows: “Rather than investigating the matter first and filing charges only when a violation was substantiated, Respondent chose to file charges based on the information contained in the injury report. On the specific facts of this case, I find a clear causal connection between the filing of the Complainant’s injury report and the initiation of charges against her.”

By Matt Darby

Recent Whistleblower Decision Determines That Absence For Non-Work Related Medical Reasons Is A Protected Activity Under The FRSA

Friday, March 09, 2012

On February 10, 2012, Administrative Law Judge, Theresa C. Timlin, of the U.S. Department of Labor, issued an Order directing the Port Authority Trans-Hudson Corporation (PATH) to pay a Railroader back pay for a suspension imposed because he was absent from work pursuant to orders from his treating doctor for a non-work related injury.

First, a little bit about the facts leading up to Judge Timlin’s involvement in the case.

On June 22, 2008, the aggrieved Railroader sustained a low back injury while he was lifting boxes at his home. The next morning, he was evaluated by his family doctor and taken off work for a week. The Railroader immediately told his supervisor of his doctor’s orders. The Railroad then referred the Railroader to its own doctor who concurred with the opinion of the Railroader’s doctor regarding his inability to work. The Railroader informed his supervisor that the Railroad’s own physician determined that he was unable to work. The Railroader was issued a disciplinary charge letter for violating the Railroad’s attendance policy. After a hearing, the charges were affirmed and the Railroader was suspended for three days.

While it is undisputed that the Federal Rail Safety Act (FRSA) prohibits the discipline of railroad employees for following the orders or a treatment plans of a treating physician for work related injuries, Judge Timlin indicated that this protection goes further and stated as follows:

“After reviewing the Act’s text and purpose, I find it clear that § 20109(c)(2) exists not only to encourage employees suffering on-the-job injuries to report unsafe conditions to their superiors without fear of reprisal, but also to discourage sick or injured workers from returning to duty while their impairment poses a threat to the safety or railroad passengers and fellow employees. I thus find that § 20109(c)(2) applies equally to treatment plans arising out of on-duty and off-duty injuries.”

In sum, while it has always been the case that a railroad violates the FRSA if it disciplines an employee for following a doctor’s orders concerning a job-related injury, it is now clear that such protection covers non-work related injuries as well.

By Matt Darby

Boblitz v. SSP Railroad Holding, LLC, et al.

Saturday, February 18, 2012

Yesterday, in a case counseled by Matt and Pat, a Baltimore City Jury returned a verdict in the amount of $750,000.00 on behalf of a Conductor who slipped on snow and ice covered debris as he was cutting a line of rail cars. The Plaintiff injured his low back in that accident and as a result, underwent surgery. The Jury determined that the Plaintiff was unable to return to work in any capacity because of his back injury. In addition, despite finding his claim barred by limitations, determined that the Railroad was negligent in causing injuries to the Plaintiff’s knees. The jury determined that the Defendant had failed to eliminate certain job related risk factors known to cause injuries to the lower extremities.

By Matt Darby

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