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Railroad Injury Blog

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 3 of 3

Wednesday, April 03, 2019

Part 3

As we discussed in Part 1, it seemed obvious that the FRSA protected railroad employees who follow their doctor’s orders for non-work related injuries. But as we learned in Part 2, some courts don’t care what a statute says – in the Bala/PATH decision the Third Circuit admitted that subsection (c)(2) of the FRSA has no work-related requirement, but still decided that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

The good thing about the Third Circuit’s decision – is that it only applies in the Third Circuit, that is, the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. So until the United States Supreme Court decides otherwise (and they might!) employees throughout the rest of the country are still covered by the FRSA for their non-work related injuries.

That conclusion was given further strength by the United States Department of Labor, and its Administrative Review Board (ARB), which also hears and decides FRSA cases. In the case Williams v. Grand Truck Western Railroad, the ARB decided: “Third Circuit added a work-related limitation to the statute. We disagree with the Third Circuit's conclusion…” The ARB further decided, “we decline to apply the holding in PATH to cases not arising in the Third Circuit.”

So the takeaway here is that everywhere in the country, except Delaware, New Jersey, Pennsylvania, and the Virgin Islands, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the FRSA protects you for following your doctor’s orders.

No matter where you live, but especially if you live in the Third Circuit, you need experienced railroad attorneys to help you with any railroad-related claim. If you have been disciplined by the railroad for following your doctor’s order, contact us, no matter what state you live in!

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 2 of 3

Wednesday, March 27, 2019

Part 2

As we discussed in Part 1, it should be obvious that the FRSA should and does protect railroad employees who follow their doctor’s orders for non-work related injuries, including time off work. That’s the safe thing to do for the employees and the public, and subsection (c)(2) of the FRSA seems clear on its face.

Well along comes the United States Court of Appeals for the Third Circuit. This is the federal appeals court that has jurisdiction over the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. In 2015, in a case sometimes referred to as Bala, and othertimes referred to as PATH, the Third Circuit took away the right of some injured railroad workers to follow their doctors’ treatment plans.

The Third Circuit held that injuries must be work-related in order to be covered by subsection (c)(2) of the FRSA. You can read subsection (c)(2) for yourself, it doesn’t say anything about a requirement than an injury be work related: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…” But here is what the court said: “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation, even though no such limitation appears on the face of the statute. And if a work-related limitation must be applied to subsection (b)(1)(A), it would be consistent to also apply a work-related limitation to subsection (c)(2).” They even admitted the statute does not have a work-related requirement! The decision of the Third Circuit was that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

Well then, everybody’s screwed, and no one who is ill or injured outside of work is protected – right? Wrong. We’ll see what went right in Part 3.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Could Some Railroads Soon Be Immune from Lawsuits?

Wednesday, May 23, 2018

Recently we have heard from several railroaders about the potential for state-affiliated railroads to be granted immunity from lawsuits, including Federal Employers’ Liability Act (FELA) and Federal Railroad Safety Act (FRSA) claims.This is in response to a recent decision from the United States Court of Appeals for the Third Circuit, holding that New Jersey Transit is an arm of the State of New Jersey, and is therefore entitled to immunity from lawsuits under the 11th Amendment to the U.S. Constitution.That case was Karns v. Shanahan, 879 F.3d 504 (3d Cir. 2018). The Karns decision could have negative implications for state-affiliated railroads across the country, such as Metro-North, PATH, and Amtrak.

The Karns case is being appealed, and will hopefully be overturned. Our firm is working to overturn Karns by establishing a strong record in lower courts, so it is important to bring claims forward now. However, if New Jersey Transit’s argument is accepted, it will mean that the most dangerous commuter railroad in the country (according to FRA data), will be able to avoid liability for the injuries and deaths that it causes. In 2016, the Associated Press reported that, “NJ Transit had a significantly higher accident rate…than the rest of the nation’s 10 largest commuter railroads.”The railroad would also be immune from actions to enforce collective bargaining agreements under the Railway Labor Act. As a result, the railroad would not have the incentive that is created by lawsuits to improve safety. This lack of incentive to improve safety would make injuries and deaths on the railroad more likely, both for employees and the traveling public.

In 1989, the same court that decided Karns held that New Jersey Transit did not have 11th Amendment immunity. That case was Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). Hopefully other courts that decide this issue will recognize that the Fitchik decision was the right one.The consequences of deciding that New Jersey Transit and other state-affiliated railroads are immune from suit would be dire. It would essentially exempt these railroads from federal laws and regulations, not just the FELA and FRSA.  Employees will no longer be protected by OSHA, or wage and hour laws. The railroads would no longer be bound by the Americans with Disabilities Act, Federal Civil Rights laws, Federal Highway Safety Administration regulations, and Federal Railroad Administration regulations. These laws and regulations are intended to protect railroad employees, passengers, and those who live and work near where the railroads operate.  The potential for catastrophe is obvious, and thousands of railroad employees could lose their right to recover for their injuries.

These issues have not yet been conclusively decided, but they could be soon.  If you were injured by your railroad employer, or retaliated against for reporting an injury or making a safety complaint, it’s important to act quickly to protect your rights and contact an attorney knowledgeable in these areas of law.

Proving FRSA Retaliation is Not as Difficult as You May Think

Tuesday, March 27, 2018

At the railroad union meetings we attend, we are often asked how it is possible to prove that a railroad is unlawfully retaliating against an employee for reporting an injury or safety complaint. After all, the railroad always gives a supposedly legitimate reason for its discipline. But it’s not as difficult as you might think to prove that the railroad is lying, and that the reason it gave for the discipline is just a pretext to punish you for reporting an injury or safety condition.

The United States Department of Labor and its Administrative Review Board are responsible for ruling on many FRSA whistleblower cases. Here’s what they recently said about proving discrimination: “We have said it many a time before, but we cannot say it enough,” all the railroader needs to prove is that the protected activity of reporting an injury or safety complaint, “alone or in combination with other factors, tends to affect in any way the outcome of the [disciplinary] decision.’” Palmer v. Canadian National Railway, ARB No. 16-035, slip op. at 56 (ARB Sept. 30, 2016). The Administrative Review Board stated that it wanted, “to reemphasize how low the standard is for the employee to meet, how ‘broad and forgiving’ it is.” Even if your protected activity of reporting an injury or safety complaint played only “an insignificant or insubstantial role” in the discipline, that is still enough. Also, if your protected activity and the employer’s given reasons both played a role, “the analysis is over and the employee prevails....”

What this means is that, even if the railroad had a “good” reason to discipline you (usually some trumped up charge), the railroad is still liable for discrimination if your protected activity played any role at all in causing the discipline. We don’t have to prove that your injury report or safety complaint was the only reason the railroad disciplined you; we just have to prove that it was one of the reasons, even an insignificant one.

For assistance with railroad injury cases please contact H. David Leibensperger

Who Knew What, and When? It’s Important in FRSA Whistleblower Cases

Wednesday, November 09, 2016

The Federal Rail Safety Act (“FRSA”) whistleblower law is one of the most powerful tools in a railroad employee’s arsenal to protect themselves against harassment and intimidation at work. Next year will mark the 10 year anniversary of the implementation of this law, which was passed in recognition of the hostile work environment prevalent across the country in the railroad industry. As we approach this milestone anniversary and reflect upon our office’s extensive experience in handling these cases, I realize that the hoped-for cultural change in the rail industry is frustratingly slow. Despite significant verdicts against railroads across the country, harassment and intimidation regarding safety-related issues continues. Instead of changing behavior, the railroads are looking for new arguments to make to defeat these claims. One such argument is to allege that the key decision-makers with regard to adverse action against an employee were unaware of their safety-related protected activity. I thought it wise to discuss this railroad strategy.

Who Knew What and When?

One of the important aspects of a whistleblower case under the FRSA is: who knew what, and when? The FRSA protects employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a hazardous safety or security condition, refuse to perform unsafe work, or provide information regarding fraud related to railroad safety, among many other things. This is called “protected activity.” One of the things an employee must prove is that his or her employer knew that the employee engaged in this conduct (engaged in “protected activity), before the employer retaliated against the employee. A railroad who knows an employee has engaged in protected activity cannot retaliate against the employee by suspending them, terminating them, or discriminating against them in any way.The railroads strategy, therefore, is to insulate the ultimate decision-maker from knowledge of the protected activity. In other words, the higher up the chain the ultimate decision-maker is, the harder it is to prove the knowledge requirement.

The View From The Bench

Conservative judges in some jurisdictions have ruled that the person who ultimately suspends or fires the employee must personally know about the employee’s protected activity for the employee to have a whistleblower case.  More liberal jurisdictions have ruled that it is enough for any manager or witness in the decision-making chain to know about the protected activity.

Either way, it is important for railroad whistleblowers to be able to state who knew what, and when.  Which managers knew you engaged in protected activity? When did they know it?How do you know they knew about it?  The more specific the whistleblower can be about this, the better, and the stronger the whistleblower’s case will be.

What Really Works in FRSA Cases

In handling these cases, we have found that it is important to employ aggressive and thorough investigation and discovery strategies. In one recent case, our office took 22 depositions of railroad employees before we uncovered the factual information which allowed us to argue that there was a clear link between the protected activity and the ultimate decision-maker’s actions. Not unexpectedly, the railroads will use every strategy and stretch the limits of credibility to conceal this information. Despite the challenges, it is important to continue to pursue whistleblower cases across the country so that at some point, the railroads realize it would be better to change their culture of harassment and intimidation rather than continue to fight these cases.

Should you have any questions regarding a potential whistleblower case, please do not hesitate to contact our office for a consultation. Please visit our website at www.bsgfdlaw.com and download our App for Railroad Employees (search “Matt Darby” and “railroad” in App Store).You can also reach us at 800-248-FELA.

THE SQUEAKY WHEEL GETS THE GREASE

Thursday, October 06, 2016

Everyone has heard the above adage many times and understands what it means. One wonders whether the origin of this phrase comes from the Railroad Industry. In any event, it certainly has modern applicability to a Railroaders rights under the Federal Rail Safety Act Whistleblower Provisions.

One of the strongest provisions of the Federal Rail Safety Act Whistleblower Provisions prohibits a Railroad from denying, delaying or interfering in any way with the medical treatment of an employee who was injured during the course of employment. In addition, if the injured employee requests transportation to a medical facility, as a result of an injury during the course of employment, the Railroad is required to promptly arrange to have the injured Railroad employee transported to the nearest hospital (where the employee can receive safe and appropriate medical care). However, it is incumbent upon the employee to understand these rights and to affirmatively protect them. In other words, an employee must recognize when their employer is attempting to interfere with their medical treatment. This often arises in a context of a Railroad Official’s attempt to influence emergency room treatment. It is well known among Railroad Supervisors that if an emergency room physician prescribes medication or restricts the Railroad employee for working for a period of time, the injury becomes FRA reportable. Because a significant portion of a Railroad Supervisor’s bonus is based upon minimizing FRA reportable injuries, they are highly motivated to influence the emergency room physician against prescribing medication or restricting work activities. However, the Railroad worker must enforce these rights by informing hospital personnel that no medical information is to be discussed with anyone from the Railroad. In other words, "the squeaky wheel gets the grease".

In addition, an injured employee must affirmatively request transportation to the nearest hospital if injured during the course of their employment. If this right is not requested, then the previously mentioned provisions of the Federal Rail Safety Whistleblower Act are not triggered. "The squeaky wheel gets the grease".

Beware Of The Railroad’s Release

Monday, April 25, 2016

I was recently working on a Federal Rail Safety Act (FRSA) Whistleblower Case involving an argument by the Railroad that my client’s claim had been released. It reminded me that the Railroads as a whole are becoming much more aggressive with their Releases. While it is not an issue when a railroad employee with a Federal Employer’s Liability Act (FELA) claim or Whistleblower Claim arising under the FRSA is represented by counsel, often times injured railroad employees will settle smaller cases on their own. I always encourage railroaders to contact my office, even if I am not directly involved in the case, to get advice as to how to proceed if the claim is relatively small. I always caution those individuals to be aware of what the railroad will try to include in its Release.

What Is a Release?

A Release is essentially the legal document that memorializes the agreement between the employee and the railroad. It will contain the monetary amount of the settlement, which is accepted by the employee in exchange for “releasing” certain claims. Railroad employees naturally assume that they are only releasing any claim related to the particular injury. However, railroads are increasingly including within the Release claims and potential claims that the employee may not be aware of. For example, the railroads will seek to include any known prior claim, such as any time claims arising under the Railway Labor Act, other injuries and potential cumulative trauma disorder claims.

What About My Unknown Injuries?

It is particularly egregious when the railroad attempts to have the employee release unknown claims. The law is somewhat unclear on this issue. Some cases hold that an employee can only release claims that he or she is aware of. In other words, if an employee is aware that they have what may be a cumulative trauma knee injury, that may be released if the language of the document is broad enough. More troublesome, however, are the cases that hold that an employee may release injuries that are unknown. In those cases, the question is whether the employee is releasing injuries that may come about from known risks. This is much broader than the known injury claim. So, for example, if an employee injures his hand and is out of work for one month, and settles the case directly with the Claims Agent, and later develops cancer as a result of exposure to diesel exhaust that Release may bar the cancer claim if it included reference to risks associated with diesel exhaust.

It Could Happen To You

I decided to blog about this issue based upon a case I am currently working on. My client was injured attempting to throw a defective and out of adjustment railroad switch. He lost minimal time from work and settled the FELA injury case one week after the incident. The next day, the employee received a charge letter claiming that he had improperly thrown the switch. After an investigation, the employee was assessed thirty (30) days off of work. Critically, this was step two with a railroad that had a three step termination policy. Several months later, the employee did admittedly violate a rule which resulted in a derailment. However, because of the fallacious second step charge, the employee was terminated. We immediately filed an FRSA Whistleblower Case and the railroad contends that the FELA Release, which did included language releasing any FRSA cases, barred the FRSA case. We, of course, are fighting this issue vigorously. The outcome is yet to be determined.

Before You Sign a Release…

Accordingly a word of caution – please confer with experienced railroad counsel prior to signing any Release. It is important to fully understand what you are giving up to make sure that the terms are acceptable.

By Matt Darby

Injured Employee’s Rights With Regard To Medical Treatment

Monday, April 11, 2016

Whenever an employee is injured during the course of their employment on a Railroad, it is important to understand that the employee can seek medical treatment with health care providers of his or her choice. This right is ingrained in the Federal Employers’ Liability Act (FELA) and is one of the most important rights that an injured railroad employee enjoys. In fact, this right is so important that when the Federal Rail Safety Act (FRSA) was amended in 2007 to include a Whistleblower Provision, medical treatment issues were also included. Therefore, if a Railroad interferes with an injured employee’s right to medical treatment in any way, the attempt may give rise to a separate claim under the FRSA.

When Injured…Get Representation

This issue frequently arises with employees who are unrepresented by an attorney familiar with the Federal Employers Liability Act (FELA). Often times, Railroads will hire “Nurse Case Managers” ostensibly to help the employee obtain appropriate medical care. However, these “Nurse Case Managers” are often unfamiliar with medical rights under the FELA or intentionally disregard this important provision of the law. It is also important to understand that all health care providers are familiar with the practice in State Workers’ Compensation Claims where the Workers’ Compensation Insurer has the right to approve or disapprove medical treatment. Since the vast majority of injured workers are covered by a State Workers’ Compensation Law, as opposed to the FELA, providers are often susceptible to the inference that the “Nurse Case Manager” has the ability to approve or, more importantly, disapprove medical care. This is absolutely false.

A Strong Medical Advocate in Your Corner

Medical issues, second only to issues of negligence or liability are often critical in a successful FELA claim. Invariably, the Railroad will hire a physician to provide the opinion that, despite all evidence to the contrary, an employee’s medical condition is not related to the subject railroad accident. It will often allege that the condition was due to long standing degenerative changes or other causes. Therefore, it is important to have a strong medical advocate in your corner when pursuing an FELA claim. An Attorney experienced in FELA cases can educate your treating doctor about the differences between the FELA and the State Workers’ Compensation System and also inform the doctors about the nature of Railroad work. Often, a doctor’s only experience with railroad work may be with conductors on passenger rail service.

The Right Medical Expert Matters

Accordingly, it is critical that injured railroad employees immediately seek medical care with physicians who are independent of the Railroad and will have the injured employee’s best interest at heart. Any attempt by the Railroad to control medical treatment or influence treatment in any way should be met with a claim under the FRSA for damages available under that law.

By Matt Darby

Why Railroad Employees Don’t Report Injuries

Thursday, April 07, 2016

Whenever I speak at a Railroad Union Meeting, I emphasize the importance of reporting any injury, no matter how insignificant it may seem at the time. The older railroad employees in attendance invariably raise their hand and relate stories of co-workers who were fired on trumped up charges after reporting an injury. No doubt, that scenario has occurred countless times on the Railroad. It is a small wonder why railroad employees hesitate to report injuries.

The Power of the FRSA

However, railroad employees have a powerful weapon to use against such harassing and intimidating actions by Railroad Management. Under the Federal Rail Safety Act (FRSA) Whistleblower Provisions, an employee has a separate claim if he or she is disciplined in any way as a result of reporting an injury. The provisions of the FRSA are quite powerful and can effect a change in the culture, but only if railroad employees are made aware of the existence of the law and change their behavior. An experienced Railroad Attorney can assist an employee with this type of a case.

Whistleblower Law NOT Just for Injuries

I often receive calls from railroad employees and Local Chairperson on this issue. It is important to think about a potential FRSA Whistleblower Case in any disciplinary proceeding. Certainly, if an employee is disciplined for a rule violation connected with the reporting of an injury, the FRSA Whistleblower Law is always an issue. However, the Whistleblower Law also applies to other safety related issues, such as reporting unsafe conditions. I frequently counsel Local Chairperson to interject into the investigation proceeding a claim that the Whistleblower Law is being violated. This may assist down the road with the potential Whistleblower Claim if the Railroad persists with the discipline. Even accepting a waiver in lieu of proceeding with an investigation can still give rise to a Whistleblower Claim. In fact, the mere receipt of a Charge Letter by a railroad employee is enough to trigger the protections of the Federal Rail Safety Act.

Culture Change within Railroad Organizations

As all railroaders know, the culture on the Railroad needs to change with regard to safety. Knowing your rights and utilizing the provisions of the FRSA will go far in effecting this cultural change.

By Matt Darby

FRA Shuts Down Due To Lack Of Appropriations

Thursday, October 03, 2013

The Federal Rail Administration (FRA) is a victim of the federal government shutdown: read about it here.

By Matt Darby

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