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
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