You have worked for the railroad for many years. Unfortunately, you suffer a work injury to the extent that your doctors tell you that you will be unable to return to work.
After you have collected U.S. Railroad Retirement Board (“RRB”) sickness benefits for five months, what are your next options since you are not returning to work?
If you have accrued 20 years or more months of service, or are 60 years old with 10 years or more months of service, you are eligible to apply for an occupational disability annuity from the RRB. This can be done during the first five months after the accident, but the annuity will not begin until the sixth month. Your doctors will fill out the RRB paperwork concerning your physical limitations and your inability to perform your job at the railroad. If you have less than 20 years but more than 10 years, you are only eligible to apply for an RRB total disability. The total disability is granted only if you are injured to such a point that you are incapable of performing any work at all.
Usually injured railroaders stay on the seniority roster of the railroad even though they have been granted a disability. Why? If you resign, the railroad will argue in your FELA claim that since you resigned, you are not entitled to damages of “future lost wages” from the railroad. Secondly, there is the possibility, depending on your injury, that your medical condition may improve to the point where you can return to work at the railroad at some future date. Finally, it is difficult to give up your seniority, a property right that you built up over your working years.
Does the fact that you are on the seniority roster, despite being on an RRB disability, give the railroad continued supervisor / employee rights over you?
Many railroads have a provision in the railroad union contract that requires a rostered employee to submit to medical examinations at any time to determine fitness for duty. However, if an employee on an RRB disability receives a certified letter from the carrier requiring him or her to report to a doctor for an examination, the employee commonly asks two questions: “Why is this happening?” and “Do I have to go?”
In answer to the first question, it is happening because the railroad wants to try to reduce its financial damages in the pending FELA claim at your expense. The railroad has selected the doctor that will perform the examination. The selected doctor typically does not treat railroad employees, but is a highly paid “expert witness” for the railroad who “treats” numerous injured employees for evaluation purposes only. Thus, the railroad hopes to obtain a favorable medical opinion and then attempt to “force” an individual back to work to reduce damages. Ironically, the railroad will argue at trial that the typical ten-minute examination by the railroad’s medical expert should be given greater consideration than the medical opinion of the injured railroader’s own doctor who treated him for the injury and the opinions of the neutral doctors selected by the RRB who determine disability. In some cases, a railroad “shops around,” ordering an employee to a number of doctors until it finds an opinion it likes.
REPEAT MEDICAL EXAMINATIONS
In answer to the second question, whether or not an employee needs to attend the medical examination scheduled by the railroad is an area more closely governed by arbitral labor law. Accordingly, it is critical to obtain the advice of FELA Designated Legal Counsel prior to addressing this question with your union representative. Currently, the case law in many jurisdictions is that the railroad has no legal or contractual right to order an employee who is on an RRB disability to do anything. However, this rarely stops a railroad from setting an employee up for an investigation for failing to obey its order to report for the examination and having the employee “fired.” Even if the employee attended one examination but choose not to attend repeat examinations the railroad requires while shopping for a more favorable opinion, an employee will still be set up for a disciplinary investigation. It then becomes an issue to be resolved under the collective bargaining agreement, if the employee is concerned whether or not his name is still on the seniority roster.
This requirement to submit to a medical examination is also one way that the railroad’s legal department exercises control over an employee using the pretense that it is the railroad’s medical department’s concern. Think about this - how many fellow workers do you know that are marked off for a non-company related injury, who are receiving an RRB disability, that get pursued by the railroad for follow up examinations?
It is critical that you contact Hoey & Farina, your FELA Designated Legal Counsel, to determine your rights and obligations concerning medical examinations and your occupational disability in order to protect yourself and your family. If you have any questions, please contact us at either 1-888-425-1212.