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Railroad Injury Blog

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

Court Confirms That Denial Of Treatment Is Discrimination Under The FRSA

Monday, October 22, 2012

On October 11, 2012, the U.S. District Court for the Northern District of Illinois, in the case of Delgado v. Union Pacific Railroad Company, 2012 WL 4854588 (N.D.Ill.), confirmed that the denial of medical treatment to an injured railroader is discrimination, and therefore subject to a private cause of action, under the FRSA.

Section 20109(c)(1) indicates as follows:

(1) Prohibition. – A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

There is little dispute that under the FRSA, an injured railroader cannot be disciplined or threatened with discipline for “requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician.” Numerous OSHA decisions have confirmed that protection. The question arose in the Delgado case whether “discrimination” concerning the provision of medical care is covered under the FRSA. The U.S District Court determined that it is.

The pertinent facts regarding the case are as follows: On October 14, 2010, Delgado injured his foot on a rusty piece of scrap metal. He immediately requested that two co-workers take him to a nearby hospital. On the way to the hospital, Delgado phoned his foreman and indicated that he had been injured and that he was going to the hospital. A short time later, and prior to arriving at the hospital, Delgado was instructed by his foreman to immediately return to the railroad’s administrative building. Delgado complied. Upon arrival at the administrative building, Delgado’s injury was assessed by a railroad official. Delgado was then directed to not go to the hospital but to the railroad’s on-site company clinic. At the clinic Delgado was examined, given medication and instructed to stay off his foot.

The Court determined that there was clear evidence that indicated that the railroad had denied, delayed, or interfered with his medical treatment. Because there was no dispute that Delgado had not been discharged or disciplined for seeking medical treatment, the question arose whether he had private cause of action against the railroad. The Court determined that he did because he had been “discriminated” against for seeking the treatment.

Section 20109(d)(1) indicates as follows regarding enforcement of the protections under the FRSA:

(1) In general. – – An employee who alleges discharge, discipline, or other discrimination in violation of subsection(a), (b) or (c) of this section, may seek relief in accordance with the provisions of this section, with any petition or other request for relief under this section to be initiated by filing a complaint with Secretary of Labor.

The Court in explaining its decision determining that the denial of medical treatment as discrimination stated as follows:

“The Court has no difficulty in construing the denial of medical treatment as discrimination against an employee who may potentially disclose a hazardous condition at the work site. Indeed, and as adverted above, denying medical treatment may often constitute a far more significant form of discrimination against an injured employee than would an after-the-fact disciplinary action. Seeking medical treatment for a workplace injury is likely, if not almost certain, to lead to the disclosure of the hazard that caused the injury and, in that light, a carrier’s efforts to “deny, delay, or interfere” with an injured employee’s pursuit of medical treatment can easily be understood to constitute a form of discrimination, and retaliation, against such an employee.”

The Court went on to indicate:

“The Court therefore concludes that Section 20109 provides a private right of enforcement to an employee, like Delgado, who alleges that a railroad carrier violated the provisions of subsection

(c )(1) by denying, delaying, or interfering with the medical or first aid treatment of an employee injured during the course of employment.”

So there you have it. It is now clear that the FRSA treats a railroad’s denial of medical treatment to an injured employee as prohibited act of discrimination that is subject to a private cause of action.

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 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

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