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.


Continue Reading

OSHA

This week, OSHA found that Norfolk Southern Railway Co., a major transporter of commodities based in Norfolk, Virginia, owed over $800,000 in damages to three whistleblowers. These actions are the most recent of a number of OSHA decisions against Norfolk Southern Railway Co. in the past year. OSHA found that the company continues to retaliate against employees for reporting work-related injuries and has created a chilling effect on the railroad industry.

On August 14, 2009, the first of the three whistleblowers was terminated after reporting an injury as a result of being hit by the company’s gang truck. The railroad charged the employee with improper performance of duties. As the only employee actually injured in the incident, the whistleblower was the only one to report an injury and the only employee fired. OSHA ordered the company to pay punitive damages of $200,000, compensatory damages of $110,852, and attorney’s fees of $14,325.

The second whistleblower was was terminated on March 31, 2010, after reporting an injury as a result of a fall. After an investigative hearing, which OSHA found to be flawed and intentionally biased against the employee, the company charged him with falsifying his injury. OSHA ordered $150,000 in punitive damages, $50,000 in compensatory damages, and $7,375 in attorneys fees.

The final employee was terminated on July 22, 2010, after reporting a head injury after falling down a flight of stairs. The day before this injury occurred, the employee had been declared an excellent employee. In the previous 35 years, he had not missed any work time due to injuries. Norfolk Southern Railway Co. decided that he had falsified the injury report, failed to promptly report the injury, and had made false and conflicting statements. OSHA found that the company’s hearing on the matter had been flawed and ordered the railroad to pay the employee $175,000 in punitive damages, $76,732.27 in back wages, and $17,993.43 in compensatory damages.

“Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation. The Labor Department will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights. Employers found in violation will be held accountable.”


Continue Reading

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

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."


Continue Reading

Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge’s decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived — other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ’s factual findings whenever the ARB finds “substantial evidence” to support the ALJ’s position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL’s final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB’s job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.


Continue Reading

One of the outcomes of the 9/11 Commission was that Congress passed two whistleblower protection laws for railroad and public transit employees in 2008. These are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, see § 1413 (NTSSA)