We are pleased to repost, with permission, this blog entry by Charlie Goetsch from trainlawblog.com, announcing a favorable and precedent-setting decision by the Department of Labor’s Administrative Review Board (ARB). Congratulations to Charlie Goetsch for obtaining the outstanding result for his client, and for ending the era of railroad interference in the medical care of its workers.

By Charlie Goetsch:

In a decision that will send shock waves reverberating throughout the railroad industry, railroad medical departments now are prohibited from doing anything that directly or indirectly interferes with the treatment prescribed by an injured worker’s treating doctor for the entire period of medical treatment, not just immediately after an injury. Once again, thanks to the Federal Rail Safety Act, the balance of power is shifting from management to rail labor, and railroad medical departments will never be the same.

Here’s the context. When a chair at his Metro North Railroad work place collapsed as he sat down, my client Anthony Santiago suffered an injury to his low back. Metro North ordered him to go to its Medical Department, which confirmed he had an occupational back injury and advised him to see an orthopedic physician. For two months Metro North followed its policy of paying the medical bills for occupational injuries. However, when a MRI scan confirmed Santiago had a herniated disc and his doctor prescribed treatment for the disc, Metro North’s Medical Department immediately reclassified Santiago’s occupational back injury as “non-occupational” and refused to pay for the treatment. As a result, Santiago suffered a four month delay in his prescribed treatment and was forced to pay $16,520 in medical expenses out of his own pocket.


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The Department of Labor today issued final regulations for handling whistleblower complaints under the Consumer Product Safety Improvement Act (CPSIA), 15 U.S.C. § 2087. On behalf of the National Whistleblowers Center (NWC), I submitted comments on the proposed regulations in 2010.  Today, DOL adopts some of my recommendations, and adopts a change in response to another recommendation.  DOL also added a new change that was not in the interim regulations, and is worthy of objection.  Specifically, DOL is making explicit that Administrative Law Judges (ALJs) may limit discovery to expedite a whistleblower case. 29 CFR § 1983.107(b). This provision could be used to deny whistleblowers the full opportunity to obtain the discovery that would win their cases. In cases where discovery is necessary, for example, to show that the employer’s stated reasons are pretextual, the whistleblower would likely waive the time limits for adjudication so that discovery can be completed. It is unfortunate that DOL is adding this unnecessary line that would work a disservice to the whistleblowers who have a hard enough time proving their cases.

Helpfully, DOL now provides in 29 CFR § 1983.104(c) that complaints or their attorneys should receive employer submissions (except for material protected by confidentiality laws), and should have an opportunity to respond. At page 40497 of the summary, OSHA states that it agrees with the comments about the importance of keeping the complainant informed and giving the complainant an opportunity to help the investigation. On page 40498, OSHA states that it, “anticipates that the vast majority of respondent submissions will not be subject to confidentiality laws.” It also links to the OSHA Whistleblower Investigations Manual where OSHA provides a list of the applicable confidentiality laws. See pages 1-19 to 1-21 for the discussion on confidentiality laws.


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Today, attorney Stephen Kohn (Executive Director of the National Whistleblowers Center) and I are filing an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB). The brief urges the ARB to affirm a decision of an Administrative Law Judge (ALJ) in favor of Christopher Bala, a signalman for the PATH railway that

OSHA

In a notice published in yesterday’s Federal Register, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, announced the formation of the Whistleblower Protection Advisory Committee (WPAC). The notice explains:

WPAC’s duties will be solely advisory and consultative. WPAC will advise, consult with, and make recommendations to the Secretary and the Assistant

OSHA

The Occupational Safety and Health Administration (OSHA) issued a new Whistleblower Investigations Manual last year.  The new manual includes some improvements for whistleblowers, such as accepting oral complaints (which is particularly helpful in meeting the short 30-day time limits for environmental and Section 11(c) cases), using digital recording for interviews, and providing more guidance in

The U.S. Department of Labor, for the first time, has proposed making its whistleblower protection program a separate line item. The Department released its proposed budget yesterday. It includes $21 million in a separate line for the whistleblower program. Secretary of Labor Hilda Solis answered questions in a live chat yesterday. The Houston Examiner participated

Terrence Blocker worked for the Metro-North Commuter Railroad Company in New Haven, Connecticut, since 2003. He was a laborer in Metro-North’s maintenance shop (called the MU Shop), and a union member.

On July 27, 2008, Blocker was operating a shuttle wagon. It tipped over and fell into a repair pit. Blocker suffered a small cut on his forehead, and he had stiff muscles starting the following day. On July 30, 2008, Blocker saw a doctor who discovered he had sprained his spine and right shoulder. When Blocker later asked for a copy of the company’s report of the accident, he discovered there was none. On August 25, 2008, Blocker’s doctor recommended physical therapy. That same day, Metro North management decided to conduct a trial to determine if Blocker was responsible for the accident. Blocker stopped going to his physical therapy because he thought the company would not pay for it. Metro North found Blocker guilty of unsafe operation of the shuttle wagon and imposed a 10-day suspension on him.  Blocker promptly complained to OSHA that this suspension was unlawful retaliation in violation of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109. Management then gave notice that they would conduct another trial against Blocker, accusing him of providing false information to OSHA. Blocker filed an amended complaint with OSHA alleging that the new trial was unlawful retaliation for filing his original OSHA complaint. Management then amended its notice for the hearing to claim that he was guilty of failing to report his injury and submit his medical substantiation. After the trial, management imposed a 30-day suspension on Blocker, for the offense of filing "a false statement in your complaint to [OSHA] claiming violations of the [FRSA]." Management explained to OSHA that this was a typographical error.

OSHA has now ordered Metro North to pay Blocker $75,000 in punitive damages, and to pay Blocker’s attorney, Charlie Goetsch. "Taking repeated disciplinary action against an employee who exercised his legal right to report an on-the-job injury and voiced a complaint about retaliatory treatment by his employer is unconscionable," said Marthe Kent, OSHA’s New England regional administrator in a press release. "Such treatment instills a culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them."


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Last July, the National Whistleblowers Center (NWC) joined with Public Employees for Environmental Responsibility (PEER) and the Government Accountability Project (GAP) in submitting a letter to Secretary of Labor Hilda Solis. The letter raised concerns about whether the Department of Labor (DOL) was doing enough to improve DOL’s Whistleblower Protection Program. Today we received

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OSHALast week the U.S. Department of Labor’s Inspector General’s office issued a report finding that most of the Department’s whistleblower investigations are flawed. The IG’s office reviewed investigative files of the Occupational Safety and Health Administration (OSHA) which has responsibility to enforce the employee protections of 17 federal statutes. It found that OSHA dismissed 77% of the whistleblower complaints. In 21% of cases, the complainant withdrew the complaint, either with or without a settlement. That left 2% of cases in which OSHA found the complaint had merit. This is not a rate that would encourage employees to come forward with concerns that might provoke retaliation.

The study examined a sample of the files for compliance with eight essential components of an investigation. These components are things like interviewing the complainant, documenting that interview, asking for witnesses, interviewing the witnesses, visiting the site, allowing the complainant to respond to the employer’s claims, and conducting a closing conference. “These elements are essential to the investigative process to ensure that complainants receive appropriate investigations,” the report states at page 3. Compliance with these standards ranges from 54% (conducting face-to-face visits, or a site visit) to 85% (holding a closing conference). The IG concluded that 80% of the investigations failed to meet one or more of the eight essential elements. 


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