January 8, 2003

CHICAGO (Jan. 8)–Once again, a complaint by the UTU’s Illinois Legislative Board has brought a Federal Railroad Administration citation against a carrier that tried to circumvent its duty to report an employee’s on-duty injury to federal authorities.

“This is the fifth time now in less than a year that our union in Illinois has documented–and the FRA has confirmed–a rail carrier trying to manipulate the reporting of an on-duty injury,” said Illinois Legislative Director Joseph C. Szabo. “Since May, 2002, the FRA has cited the Indiana Harbor Belt Line, the Belt Railway of Chicago, the Canadian National/Illinois Central and now the Burlington Northern & Santa Fe for manipulating on-duty injury statistics in Illinois. It makes you wonder how many other incidents are still out there awaiting followup because employees have not yet provided the union with enough documentation to initiate an FRA investigation.”

In the most recent incident, the FRA cited the BNSF for persuading an employee’s physician to downgrade the employee’s medication from a prescription pharmaceutical to an over-the-counter preparation and for failing to report the injury as required under federal regulation.

In a December 31 letter to Illinois Legislative Director Joseph C. Szabo, FRA Associate Safety Administrator George Gavalla said his agency had checked out the UTU complaint, had found it accurate, and would levy fines, known as “civil penalties,” against the carrier.

“Based upon the witness statements and interviews taken during this investigation, FRA concluded that BNSF supervisors took actions that were calculated to discourage or prevent [the employee] from receiving proper medical treatment, and thus avoid reporting [his] injury to FRA,” Gavalla wrote.

“Accordingly, we are recommending to FRA’s Office of Chief Counsel that civil penalties be pursued against BNSF for noncompliance with FRA’s anti-harassment provision in our accident reporting rule found at Section 225.33, Title 49, Code of Federal Regulations (CFR),Part 225.”

The UTU complaint which the FRA investigated concerned an injury suffered by the conductor of an eastbound BNSF coal train operating last August between Creston, Ia., and Galesburg, Ill.
As the locomotive passed through an interlocking at Halpin, Ia., it encountered what Gavalla called “an irregular track condition.”

“[The conductor] stated that the locomotive dipped and swayed in an extreme manner, causing his body to move violently down and sideways,” Gavalla wrote in his letter to Szabo. “He stated that he felt his neck pop at this time, and his left shoulder and head struck the cab window.” The report said the conductor reported the rough track to the dispatcher at the time of the incident and informed a supervisor by voice mail when he marked off duty at Galesburg at 4 a.m.

When the pain persisted for several days, the conductor told the supervisor he intended to see a doctor. Shortly afterward, he got a call from a “Mr. Moody,”who said he represented a private firm hired by the railroad to help employees set up doctor appointments. The employee agreed to see the physician as long as no railroad supervisor was present. “Mr. Moody” agreed to this.

But when the injured conductor emerged from his consultation and Magnetic Resonance Imaging (MRI) scan, he found the supervisor waiting for him in the reception room. When the physician confirmed that the employee had been given prescriptions for a muscle relaxant and an anti-inflammatory, the supervisor took the physician aside and persuaded him to switch the employee to an over-the-counter preparation because issuance of a prescription drug would cause the carrier “too much federal paperwork.”

After using the non-prescription medicine, the employee noticed such a strong effect on his pulse and blood pressure that he sought help at a local emergency room. He was referred to a neurologist, who diagnosed a herniated cervical disk, put him back on prescription medication and banned him from working aboard moving diesel locomotives.

“The railroad’s conduct in the case of this employee was inappropriate as well as illegal,” Szabo said. “The sanctity of the doctor-patient relationship is one of the most fundamental concepts in law. Nobody has the right to intervene in the doctor-patient relationship or to bring pressure on a licensed medical practitioner to reduce the severity of a diagnosis or the intensity of a drug. Nor does an employer have the right to pressure an employee to reduce the seriousness of his medical complaint. Every patient has an absolute right to the practitioner of his choice and an absolute presumption that the relationship will be confidential.”

Szabo said local supervisors ought to know to know they are over the line when they meddle in the doctor-patient relationship, yet history proves they will not stop the practice of manipulating on-duty injury statistics until halted by an outside force like the FRA.

“But the FRA is not going to become involved unless an employee has the courage to document the offense and bring it to the attention of the union,” he said. “If the carrier you work for tries in any way to influence your reporting of a workplace injury, or in any way tries to interfere with your medical treatment, get the details so the union can write them up and forward them up to the FRA for investigation. Get names, times, dates, places and all other circumstances needed to help a federal investigator understand what happened.

“That’s what the BNSF conductor did, and that’s why he’s off duty today and receiving proper therapy and medication,” Szabo said. “And that’s why once again the industry is getting hit with civil penalties.

“Isn’t it a shame that we have to use a punitive approach?” Szabo said. “We could accomplish so much more with a joint labor/management effort to identify safety hazards and simply eliminate them. Unfortunately, the industry continues to doctor the numbers rather than let licensed medical practitioners doctor the patients.”