This article will examine recent Federal Railroad Administration (FRA) developments with respect to limiting the railroad’s attempts to invade your privacy while you are undergoing medical treatment for an on-the-job injury. (This article will not review other recent developments in this area under HIPAA legislation.)
When a railroader is injured at work, he is frequently brought to the emergency room or a nearby clinic for treatment. Once at the emergency room, the injured railroader should have the fundamental right to be left alone to discuss his symptoms with his treating doctor and discuss any other medical conditions he may have which are relevant. This is important because not only does the injured railroader have to discuss his symptoms and prior medical history with the treating medical personnel, but also has to make decisions with respect to any current treatment options being offered at the hospital or clinic.
DOES THE RAILROAD RESPECT ITS EMPLOYEE'S RIGHT TO BE LEFT ALONE AT THIS CRITICAL TIME?
Usually not. More often than not, the injured employee will be accompanied to the emergency room by one or more of his “concerned” railroad supervisors. These supervisors frequently position themselves in the hospital room during the examination and even go so far as to discuss medical treatment with the doctor outside of the presence of the railroader. They have even been known to suggest that non-prescription medication be given out.
WHY DOES THE RAILROAD DO THIS AND WHY DO HEALTHCARE PROVIDERS LET THEM GET AWAY WITH IT
First, the supervisors want to determine the extent of the railroader’s injury and often try to continue talking to the railroader about the facts of his accident. When a person is in a great amount of pain, he is not usually concerned with what he is saying and does not want to explain how the accident occurred. There have been actual cases where railroad officials have asked the employee to sign the accident report while in the hospital awaiting treatment and the employee, having related a minimal amount of information on an accident report, or even having the accident report filled out by his supervisor, has indicated merely “hurt turning handbrake” or “fell off rung on car.” Later, the railroad profits by this brevity by cross-examining the injured railroader and saying “Your accident report doesn’t mention that the handbrake was defective and caught,” or “You didn’t mention in your report that the rung was bent.” The railroad then follows up by asking the injured railroader, “When did you make this up?” Obviously, the emergency room is a good time to “manipulate” an employee’s story to the railroad’s advantage.
Second, the supervisors like to be present during an examination so they can talk to the physician and request that non-prescription pain medication be given. When medicine is prescribed, the accident must be reported to the FRA, and railroads want to avoid FRA reportability.
WHY DO THE HEALTHCARE PROVIDERS ALLOW THIS TO HAPPEN?
The answer is simple. The individuals from the railroad inform the healthcare provider that this is an on-the-job injury and that the railroad will be covering the medical bills. The doctors then view the matter as a worker’s compensation case where the employer or insurer typically is able to get more involved.
WHAT CAN BE DONE ABOUT THIS?
Recently, the FRA has begun putting its foot down with respect to supervisory personnel invading the examination room. The FRA's new position can be seen from a recent FRA report critical of the railroad's actions of sending company officials into the examination room.
Earlier this year, according to the FRA, a railroader was injured in Florida and reported the injury but did not seek medical treatment. The next day, he marked off sick with crew management and informed the supervisor that he was not well due to the prior incident. The railroader went to a physician’s office where he met his supervisor. The railroad’s superintendent of operations also arrived at the clinic. However, the clinic was not open and the railroader and his two supervisors went to the emergency room. When they arrived at the emergency room, a third railroad supervisor also arrived. The railroader was called to go into the examination room and the superintendent asked the railroader if he could go in with him. The railroader agreed, but soon all three supervisors made their way into the examination room and stayed during the entire examination. The physician recommended a particular medication. One of the railroad supervisors asked the doctor if medication he was recommending was available in an over-the-counter strength instead of a prescription strength. The railroader also claimed that the supervisor asked him if he had a problem with receiving the recommended medication in an over-the-counter form as opposed to prescription strength.
The FRA found that this evidence clearly pointed to non-compliance with Section 225.33, the anti-harassment provision of the FRA reporting rules. The FRA investigator determined that the supervisor questioning the physician with respect to the prescription strength of the medication was “an act that was calculated to discourage or prevent such person from receiving proper medical treatment for the purpose of avoiding reporting of this case to the FRA.” Ironically, the medication that the doctor had originally recommended to the railroader was not even a prescription medication but was, in fact, over-the-counter.
Further, in its report, the FRA stated that it “also questions why it was necessary for [the railroad] to commit the resources of three of their supervisors to attend to [the injured railroader] during the extensive time that he was awaiting medical attention, and during his medical examination and treatment. The presence of three supervisors during this time gives the perception, rightly or wrongly, that the employee is being placed under undue scrutiny and possible duress by the employer. The fact that all three supervisors indicate that they had asked [the injured railroader] for permission to enter his examination and treatment room and claim that he granted the request, at no time did [the injured railroader] actually make a request that any of the three [railroad] supervisors to come into his examination room.” The FRA went on to indicate that it is “very concerned about this and previous case we have investigated where [the railroad] supervision have entered the examination and treatment room of their employees without being requested to do so, which may jeopardize injured employees receiving proper medical treatment. Often the attending physicians will ask questions about other physical conditions and/or medications that a person is taking or wish to discuss other findings. If, because of the presence of railroad supervision in the injured employee’s examination and treatment room, the person may feel restricted in discussing any physical matters with the attending physician. This can certainly lead to preventing proper treatment, as well as violating a person’s right to individual privacy.”
As a result of this incident, the FRA Office of Safety processed a recommendation to the chief counsel to seek civil penalties against this particular railroad for non-compliance with the anti-harassment provision of Section 225.33 of Title 49.
FRA employees also were asked to work with senior railroad management to develop a policy that provides specific guidance to the railroad supervisors not to enter the examination and treatment rooms with injured employees unless the injured employee requests a supervisor to do so.
If you have any questions on your privacy rights in the examination room, or a question regarding any other personal injury matter, please contact Hoey & Farina, your FELA Designated Legal Counsel, at 1-888-425-1212.