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Straight
Track #263
This Straight
Track article will discuss when and why the railroad may order an
employee to attend a medical examination, and when an employee may
decline a company-ordered medical examination.
PRE-EMPLOYMENT PHYSICAL
Prior to hiring, the railroad generally requires an applicant to undergo
a physical examination. The dictionary of job titles lists every job in
the economy with, among other things, the degree of physical exertion
required for the job. That is, if a job requires a very heavy level of
exertion, the railroad may want to ensure that an applicant is
physically able to perform the job requirements.
The pre-employment medical examination is required if you want the job.
There are, however, some things that cannot be tested at a
pre-employment physical, such as genetic predisposition to certain
medical conditions.
The pre-employment medical examination can be an important tool for the
employee, as well as for the railroad, as it sets the employee’s
baseline physical condition. In an FELA case, often times the railroad
will claim the injured employee suffered from a pre-existing condition.
A finding of normal in a pre-employment medical examination would refute
such a claim and show that a condition was caused by the railroad
employment and not a pre-existing condition.
PERIODIC MEDICAL EXAMINATIONS
The same is true for periodic medical examinations. Some railroads
require employees to undergo annual or bi-annual physicals. The employee
must attend these examinations. The report of these examinations also
may be used to show, despite any contrary claim by the railroad, that
the employee’s physical condition was normal prior to an on-duty
accident.
The philosophy behind the rule that gives the railroad the right to
require an employee to undergo periodic medical examinations is that the
railroad needs to maintain an adequate workforce to ensure railroad
operations. When an employee is unable to perform service for medical
reasons, the railroad may require an examination to ensure it has enough
personnel to operate the railroad.
EXCEPTIONS TO EVERY RULE - FELA EXAMINATIONS
A few exceptions to the rule are:
• if an employee
has an FELA case pending in court, medical examinations desired by the
railroad are governed by court’s discovery rules, and
• once an
employee is adjudicated occupationally disabled by the Railroad
Retirement Board, the railroad no longer can order medical examinations.
If an employee has a pending FELA case, there is an important exception
to the general rule that the railroad has the right to require an
employee to undergo periodic medical examinations.
A common litigation tactic of the railroad is to order an injured
railroad employee to see a company doctor or undergo a functional
capacity evaluation. The railroad does this to create evidence for use
in the FELA case.
During an FELA case, however, the railroad is prohibited from ordering
the employee to undergo a medical examination outside the court
discovery rules. Federal Rules of Civil Procedure and state procedural
rules both provide that a Defendant (railroad) can request the court
issue an order that a Plaintiff (injured employee) undergo a medical
examination for litigation purposes. The rules generally provide,
however, that the railroad is entitled to only one medical examination
and the examination must follow all the requirements of the rule.
Another important exception to the right of the railroad to order an
employee to undergo a periodic medical examination is that after an
employee is adjudicated occupationally disabled by the Railroad
Retirement Board, the railroad cannot require a medical examination.
EXAMINE YOUR OWN OPTIONS
There may be other specific circumstances where an employee can contest
a medical examination ordered by the railroad. Under other
circumstances, a case-by-case analysis is warranted. If you have
questions concerning an on duty-injury, please call Hoey & Farina at
888-425-1212.
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