The Occupational Safety and Health Administration announced yesterday that it has ordered Norfolk Southern Railway Co. to pay over $800,000 in damages on the claims of three employees who were retaliated against after reporting injuries at work. The awards include $525,000 in punitive damages and attorneys’ fees. As previously discussed in this blog, if employees are aggressive in pursuing claims under the Federal Rail Safety Act, and OSHA and other courts continue to award substantial damages, the culture of intimidation and harassment in the railroad industry will come to an end.
Tag Archives: railroad
“The FELA is a platypus”
“In the taxonomy of the law, the Federal Employers’ Liability Act…is a platypus. Intended to provide a remedy for injured railroad workers, the FELA ‘hovers ambivalently between workers’ compensation law and the common law of negligence. It is neither, but it partakes of characteristics of both.’”
Page v. National Railroad Passenger Corp. (Md. App.) 2011 WL 3862852, quoting CSX v. Miller (Md. App. 2004), 159 Md. App. 123, 129.
This clever quote from a Maryland Appeals Court decision reminds us that railroad workers are not automatically entitled to compensation when they are injured (like workers’ compensation). It also makes clear, however, that railroaders should not be held to the standard of traditional negligence law. To promote safety in the railroad industry, Congress intended the FELA to provide a liberal remedy to railroad workers. The resulting compensation system under the FELA requires a showing of railroad negligence, but only a slight connection between that negligence and the employee’s injury.
Employees can best protect themselves under the FELA when they frequently provide a railroad with notice of dangerous conditions (in writing), by immediately reporting injuries, by acting as witnesses and testifying on behalf of fellow injured employees, by getting medical care and treatment with their own physician and carefully following the treatment plan, and by not returning to work (despite pressure from the railroad) until they have achieved a full recovery. Most importantly, get immediate legal advice from an attorney who is familiar with the railroad industry. The FELA, like a platypus, is unique, and injured workers should get guidance from someone who understands the nuances and complexities of the law.
Don’t Delay – File for RRB Sickness Benefits Immediately
I represent an employee of a small railroad in southern Ohio who does not belong to a union. After suffering an injury at work, he did not know what to do. Without guidance from a union or attorney, he was even unaware of the availability of benefits available to him through the Railroad Retirement Board. He did not file an application for Sickness Benefits with the RRB until he spoke to me, almost three months after the injury occurred. Unfortunately, regulations only permit the RRB to pay retroactively for 10 days. He essentially lost the money available to him for the several weeks in which he did not know to file. Here is a portion of the response he received from the RRB:
“The Railroad Unemployment Insurance Act provides that a Statement of Sickness is to be filed within 10 days of the first day of your infirmity. Under some circumstances a Statement of Sickness may be considered as filed on time even though it is received by the Board after 10 days. This applies in a case where the employee tried to file a Statement of Sickness at an earlier date, but was prevented by circumstances beyond his or her control from doing so…An employee’s lack of knowledge is not considered to be a circumstance beyond his or her control. Therefore, we cannot consider that your Statement of Sickness was filed within the prescribed time.”
If you or a co-worker suffers an injury at work that will result in lost time, you must file an application for these benefits within 10 days or you may lose benefits. Immediately contact your union representative or an attorney familiar with the railroad industry for guidance.
For those brothers and sisters reading this blog who are members of the Brotherhood of Railroad Signalmen, there is a great insert on this topic in the middle of the 3rd Quarter 2011 Signalman’s Journal.
What is the railroad afraid of?
A railroad conductor recently sought my help when he was asked to give a witness statement by the railroad’s claim department. He was working with an engineer who suffered an injury and later brought a claim against the railroad under the FELA. (The engineer hired a different attorney, he was not my client). The conductor told me that he was concerned about harassment and retaliation from local supervisors if he told the truth (that the railroad’s negligence caused the injury to the engineer). Since the railroad refused to allow him to bring a union representative, he asked me to appear with him. I advised him of his rights under the Federal Rail Safety Act (FRSA) that provide protections against such harassment, encouraged him to tell the truth to help his co-worker, and agreed to accompany him to the meeting.
When I arrived at the local yard office with the conductor, let’s just say that they didn’t roll out the welcome mat for me. As soon as I notified the claim agent that I was an attorney, he closed us out of the room and began making phone calls. After several minutes, he reappeared and said that he would not talk to the conductor that morning, but would reschedule the meeting for another time when I was not present. I tried to assure the claim agent that I was not there to interrupt the process, but to merely observe and answer any questions the conductor might have during the interview. I offered to wait in the hallway, but was told that I needed to leave the building. I was told that the railroad’s policy was not to allow attorneys to be present during statements with the claim department. (It is interesting to note that one of the railroad’s attorneys was seated at the table next to the claim agent when we arrived).
If the only purpose of such meetings is to “get the facts,” why was the railroad so afraid of my presence that morning? Consider the answer to that question the next time you are contacted by the claim department.
Another example of why to promptly report your injury at work
It is crucial for railroad employees to immediately report their injuries at work. A recent case illustrates why this is so important. I represent an individual who injured his lower back when his co-worker unexpectedly dropped a heavy load they were both carrying. The co-worker apologized, and the employee told his immediate supervisor what happened. Instead of filling out an incident report, however, the injured employee was persuaded by the supervisor to “take it easy” for the rest of the shift and see how he feels. For the next several days, the employee reported to work, told his supervisor he still felt pain in his lower back, and was told he could sit in the supervisor’s truck and rest until the end of the shift. “Let’s see how you’re doing tomorrow,” he was told. After about a week, the employee felt pressure from his co-workers to return to the job. He felt guilty sitting in the truck all day while the rest of the crew was working. So the injured employee tried to perform his regular job duties, and not suprisingly the pain in his lower back got worse. He told his supervisor he needed medical attention and was finally given an incident report to fill out. The employee was diagnosed with multiple disc herniations and was out of work for over two years.
The employee pursued a claim under the Federal Employers’ Liability Act (FELA) for damages resulting from the incident. In its defense of the case, the railroad argued that the accident that caused the employee’s injury never happened. The first time I learned of an injury, the supervisor claimed, was the day he filled out an incident report (two weeks after the original incident). The co-worker, in an apparent attempt to shield himself from responsibility and avoid possible discipline, denied that he ever dropped a heavy load that he was carrying with my client. My client was being protrayed as a liar, as someone who was trying to take advantage of the railroad and get money for an injury that must not have occured at work.
After my client suffered his injury, he could have protected himself by immediately seeking medical attention and filling out an incident report. Instead, he was convinced that he should be a “team player” and try to help the railroad avoid the requirements of reporting an at-work injury to the Federal Railroad Administration (FRA). As he found out, when it is discovered that the injury is serious, the railroad is not interested in returning the favor.
If you get hurt at work, take whatever steps you can to make sure that you will be protected. This includes seeking medical attention, promptly filling out the incident report, and getting advice from an attorney familiar with the railroad industry.
Getting a prompt return to work from the railroad Medical Department
I recently received a call from a railroad conductor who was having a difficult time getting the railroad medical department to approve him for a return to work following an injury. It is not uncommon for an injured employee to be pulled out of service by the railroad’s medical department because of an alleged physical limitation, even though all of the employee’s treating physicians have cleared him to return to work. The employee is forced to miss work and lose wages, sometimes for a significant period of time. The railroad’s motivation in some of these cases is not the safety of the employee or his co-workers, but retaliation for reporting an injury at work. In these cases, the empoyee may have a claim under the Federal Rail Safety Act.
Even if the condition cited by the railroad’s medical department is not related to an injury, there may still be a violation of the employee’s rights under the law. If an otherwise healthy employee is not permitted to work because the railroad regards him as disabled, it may be a violation of the Americans With Disabilities Act (ADA). We have been successful in utilizing the ADA to get railroad employees promptly returned to work. In Pierson v. Norfolk Southern Railway Co., for example, an Ohio court of appeals held that a railroad employee at the Ashtabula Coal Dock stated a claim under the ADA when the railroad’s medical department refused to return him to work after he finished treatment for a heart condition. The employee’s treating doctors said he was qualified to do his job, but the NS Medical Department unreasonably disagreed.
If you are having difficulty dealing with the railroad medical department, contact our firm. We can evaluate the specific circumstances of your case to see if your rights are being violated.
The railroad claim agent is not your friend
Let’s take a closer look at #4 on our workplace injury checklist. Do not give a recorded statement to a railroad claim agent. Although railroad rules require an injured worker to report an injury, and to possibly participate in an investigation with a supervisor, there is no rule that requires you to provide a recorded statement to a railroad claim agent about how an injury happened. And since I’ve never seen a claim agent conclude an employee statement by declaring, “I guess we were wrong, how much do you want me to pay you…,” there is absolutely no benefit to an injured worker in participating in this process.
The claim agent wants to record your statement as soon after an accident occurs for one reason — to get ammunition to defeat any claim you might later bring against the railroad. The claim agent does not need the statement to figure out what happened. He can get all of that information from the supervisor to whom the injured worker reported the incident. He doesn’t need a statement to understand the nature and extent of the worker’s injuries. The railroad already has copies of all relevant medical records (allowing it to process payment of the bills). The claim agent has been trained to try to get the employee to admit that the incident was his or her own fault, that the railroad didn’t do anything wrong, or that the injuries really aren’t that bad.
The best protection for an injured employee is to get legal advice as soon as possible after an injury occurs. Do not make any statements to a claim agent until you discuss your incident with an attorney. If you eventually need to hire a lawyer to pursue a claim under the Federal Employers Liability Act (FELA), the lawyer can talk to the claim agent directly. If the matter is not serious, and you want to settle the case on your own, at least get good advice and guidance from a railroad attorney who is familiar with the process.
Rules Testing as a Form of Harassment
How would you like your supervisor to follow you all day, look over your shoulder at everything you do, and write down every time you make a mistake? This is what railroad employees endure during rules tests on a regular basis. For the vast majority of employees, the process can be fairly routine. If the employee recently reported a workplace injury, however, or settled a case under the FELA, the process can be career-threatening.
I have seen many recent cases in which railroads use the rules testing process as a form of harassment against workers who report workplace injuries. The testing is longer, more intense, and more frequent for injured employees. Every perceived violation is pursued through the progressive discipline process. (It is at times equivalent to you getting pulled over by the police and given a ticket every time you drive a few miles per hour over the speed limit). I have dealt with cases in which rules violations are fabricated by the railroad, conditions are set up so it is almost impossible for the employee to comply with all rules, or where the supervisors simply continue observations until they find a violation, no matter how long it takes. For the first violations, the railroad offers the employee a reduced penalty in exchange for an admission of guilt. Eventually, the employee will be facing termination.
This type of harassment may be actionable under the Federal Rail Safety Act (“FRSA”). The FRSA prohibits a railroad from retaliating against an employee for notifying the railroad of a work-related personal injury. Rules testing may rise to the level of retaliation if it can be shown that the railroad treats you more harshly than other employees because you were injured. If you feel that you are being harassed because you reported an injury, contact our office and we can investigate whether you have a potential claim under the FRSA.
I’m taking requests
When I speak to railroad employees at union meetings, I find that I can be a better help to them if I start a conversation instead of giving a lecture. I usually begin the meetings by asking people what problems they’ve encountered recently, or what questions they have. Railroads have different methods of dealing with on-the-job injuries; some are more aggressive than others at discouraging claims under the Federal Employers’ Liability Act (FELA). If employees are having specific problems, they need specific answers, not a memorized speech.
I want this blog to also be responsive and helpful to the employees who read it. If you are having a recurring problem at your home terminal, leave a comment below or send me an email (andrew@dctblaw.com). I can provide advice privately to you, and/or generate a post that addresses the issues that concern you.
Get medical treatment from your own doctor
Following a workplace injury, most railroads require an injured employee to be examined by a physician on the railroad’s staff or by an outside doctor with whom it has a contractual relationship. Your interaction with this doctor should be limited to determining whether you are physically approved to return to work. You do not have to rely on any other advice or treatment recommendations from the company doctor. Remember, the company doctor works for the railroad, not for you. You do not have a physician/patient relationship with the company doctor, and any medical reports generated by the company doctor will automatically be provided to the railroad.
Your own doctor, on the other hand, has a confidential relationship with you. If you seek medical advice from an independent physician, you can instruct him/her not to discuss your treatment with the railroad. You should rely on your own doctor’s advice when deciding the best option to treat your injury, not on someone who will also consider what is best for the railroad.
If the railroad interferes with your right to seek treatment from your own physician, you may have a claim under the Federal Rail Safety Act (FRSA).
The importance of worker solidarity
“An injury to one is the concern of all.” – slogan of The Knights of Labor, circa 1880′s
This slogan is perhaps of greater importance in the railroad industry than most other industries in America. Railroad workers are not covered by workers’ compensation, so the mere fact that a worker is injured on the job does not entitle him or her to damages. A railroad employee must prove that the railroad was at fault before he or she can recover lost wages, payment for medical bills, or other damages. Injuries in the railroad industry tend to be more severe than in other jobs because of the inherent dangers of the workers’ duties, so receiving compensation is often necessary to avoid economic collapse for the injured person. (These cases do not involve workers sitting comfortably at home getting rich off the system).
Because the stakes are so high, it is vitally important for railroad workers to stand up for each other against employer intimidation. Proving fault in FELA cases requires testimony from co-workers, about both the dangerous conditions allowed to exist at the time of the injury and about the railroad’s past practice of ignoring complaints. Unfortunately, I have seen many employees refuse to testify in support of an injured co-worker, particularly when that person has become the target of harassment. “I don’t want to put a target on my back, too, by helping him,” is the usual response.
The only reason railroads practice such intimidation is because workers allow it to be effective. If everyone stands together, the intimidation will end. The rights of all railroad workers under the FELA and FRSA can be fully protected if workers remain committed to each other. If one of your union brothers or sisters is hurt, do everything you can to help them; next time it might be you who needs help.
Filling out the railroad incident report
As soon as possible after suffering an injury at work, a railroad employee should fill out an accident report. Most railroads have formal rules requiring that the accident report be filled out promptly after any injury. Failure to complete the report opens the door for the railroad to deny that the injury occurred at work, to claim that the injury was so minor that the employee did not even bother to fill out the report, or to subject the employee to discipline for violation of the above-mentioned rule.
Merely filling out the report is not enough, however. The employee must also be careful about what information is provided in the report. It is best to make sure that a union representative is present at the time a report is completed, and if possible, call a railroad law attorney for advice before completing the report. The injured employee should identify in the report all conditions in the workplace that contributed to the injury, including defective equipment, oversized ballast, lack of assistance, improper instruction, etc. If the cause of an accident is not immediately apparent, do not concede that the railroad did nothing wrong. Later investigation often reveals the cause of an accident that the employee was not aware of at the time. Instead, simply write on the report that, “I do not know at this time what caused the accident.” The information included in an incident report can be crucial to eventually proving the railroad’s negligence under the FELA.
Remember, you have specific legal protections against retaliation for truthfully reporting workplace injuries. Filling out the railroad’s incident report is the best way to protect yourself.
You have a right to immediate medical attention
If you suffer an injury on the railroad that requires immediate treatment, demand that your supervisor get you to the nearest hospital. Do not allow the supervisor to delay your treatment so that he or she can discuss the incident with you, fill out a report, or take a statement. And do not allow the railroad to transport you to an out-of-the-way medical facility because they want you to be treated by the company doctor. You have the right to be taken to the nearest hospital where safe and appropriate care is available to you. Once you are at the hospital, do not allow your supervisor to discuss your treatment with the physician, nurses or staff.
A railroad employee can file a claim under the Federal Rail Safety Act (“FRSA”) if the railroad interferes with his or her right to medical care following an injury at work. The FRSA states in part that a “railroad carrier…may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured [at work]…A railroad carrier…may not discipline, or threaten discipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician…” An employee who is successful in such a claim may obtain an award including punitive damages and attorneys’ fees.
Why the FRSA works
Railroads have a long history of trying to intimidate their employees so workplace injuries are not reported and legitimate FELA claims are not pursued. Employees that file claims are quickly the target of threats and discipline for being “accident prone” or “unsafe.” In the past, the worker could only challenge the railroad’s harassment through the grievance process. The grievance process in the railroad industry can take months, and even if the employee is successful, the most the railroad would have to pay is the employee’s backpay. Under these circumstances, many employees who are hurt at work do everything they can to avoid reporting injuries.
The FRSA was amended specifically to address this problem, and to provide protection to injured employees so they can pursue FELA claims without fear of retribution. How does the FRSA accomplish this goal? An employee who proves that a railroad carrier has violated the FRSA is entitled to “all relief necessary to make the employee whole.” Damages available under the act include reinstatement, restoration of seniority, backpay with interest, and compensatory damages including litigation costs, expert witness fees, and attorneys’ fees. In addition, the FRSA permits recovery of punitive damages in some cases of up to $250,000. Faced with the potential of paying such significant awards, railroads will be forced to deal with supervisors who try to intimidate employees into not reporting legitimate claims. In this way, the FRSA can be a viable deterrent to harassment in the railroad industry.
Always report your injuries at work
The first item on our checklist of what to do when you are hurt at work is to report the injury. Immediately tell co-workers on your crew that you were injured, and point out to them conditions in the workplace that contributed to the accident. Your co-workers can verify your version of events and become important witnesses if you need to pursue a case. Notify your union representative as soon as possible, so you can get help with any investigation or hearing related to the incident. And make sure that your immediate supervisor is aware of the incident before you leave the property.
I have seen too many employees fail to promptly report an injury because they think the pain will go away after some rest. After a few days, when the pain is much worse and they need medical attention, the employee is faced with a dilema. If they notify the railroad at that point, the employee will likely be disciplined for failing to report the injury, or for falsifying an incident report. And if they don’t report the injury at all, they will be unable to receive compensation through the FELA for medical expenses, lost wages, etc. Avoid this problem — always report your workplace injuries when they occur.
FRSA – Protection against retaliation
The Federal Rail Safety Act (“FRSA”) was recently amended to give railroad employees a remedy when they are retaliated against for reporting on-the-job injuries. The provisions of this law have the potential to change the entire culture of the railroad industry. Railroad supervisors can no longer threaten, harass or intimidate workers in an effort to keep them from pursuing their rights under the FELA. For this change to occur, it is important that every railroad employee understand their rights under the FRSA and aggressively pursue claims when they arise.
The FRSA prohibits a railroad from retaliating against an employee for engaging in certain “protected activity.” Protected activity includes assisting in the investigation of a railroad’s violation of federal regulations, reporting safety violations, notifying the railroad of a work-related personal injury, testifying as a witness in the investigation of an injury, or accurately reporting hours on duty. A railroad may be liable under the FRSA if it disciplines, intimidates or retaliates against an employee for engaging in one of these activities.
Workplace Injury Checklist
Every railroad employee should know the proper steps to take when suffering an injury at work. Below is a checklist of some of the basic things to remember. I will discuss each point in more detail in later posts. If you suffer an injury at work, or have any questions about the information below, feel free to contact DCSTB toll free at (888) 902-1499.
1. Report the injury (to your co-workers, immediate supervisor, and union representative)
2. Demand immediate medical attention, if necessary
3. Fill out an incident report
4. If possible, do not give a recorded statement
5. Apply for RRB sickness benefits
6. Get medical treatment from your own physician
7. Avoid light duty
8. Get legal advice from a railroad law attorney as soon as possible.
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