By Brandi O. Brown, J.D.
In an appeal from a decision of the DOL’s Administrative Review Board (ARB), the Second Circuit has ruled that an injured employee’s Federal Railroad Safety Act (FRSA) claim was unsupported by substantial evidence. The employer had refused to cover his chiropractic treatments after its contracted occupational health services department (OHS) concluded the work-related injury (a fall caused by a broken chair) had been resolved. The appeals court concluded there was no evidentiary support for the assertion that the employer had applied indirect pressure on the OHS or that the OHS’s medical determination was deficient. The court vacated the decision of the ARB (Metro-North Commuter Railroad Co. v. U.S. Department of Labor, March 23, 2018, Livingston, D.).
Metro-North Commuter Railroad’s contractor, Take Care Health, operated Metro-North’s Occupational Health Services. Under contract with Metro-North, Take Care determined whether Metro-North employees’ injuries were occupational, in which case treatment was paid for by the employer. The employees of Take Care Health, including physician’s assistants and therapists, reported to the OHS administrator, a registered nurse employed by Take Care. Metro-North also employed, as an administrator for OHS-related matters, a nurse who acted as a liaison. Metro-North retained significant authority over OHS, including the ability to terminate the contract at any time for any reason, the ability to veto addition or removal of OHS staff members, and the ability to direct that staff members be removed.
Chair breaks, causes injury. In 2008, the plaintiff, a Metro-North employee, hurt his back by falling from a broken chair. He reported to OHS, which found that his injury was occupational. The employer reported the injury to the Federal Railroad Administration, as required by law, and paid for three months of medical treatment. The employee’s orthopedist recommended treatment by a chiropractor and he was approved for up to 18 total visits with the chiropractor by OHS.
Three months after the injury, the OHS physician’s assistant concluded that his back injury had resolved, and the effects of the work-related injury had cleared. The OHS medical director reached the same conclusion—that degenerative changes noted in an MRI had not resulted from the fall (but instead from a pre-existing condition combined with his weight) and that the work-related injury had resolved. Eventually the employee paid out of pocket for his additional chiropractic treatments, although his need to come up with his own money delayed the additional treatment for several months.
He filed a complaint with OSHA, alleging that the employer retaliated against him in violation of 49 U.S.C. §20109(c)(1), part of the FRSA, by delaying medical treatment. OSHA found that the employer had interfered with his medical treatment. An ALJ overturned that determination and the employee appealed. The DOL’s Administrative Review Board reversed the ALJ decision in part, ruling that she had misapplied section 20109. On remand, the ALJ concluded that the employer violated section 20109(c)(1) and the ARB affirmed. The employer petitioned the Second Circuit for review.
ARB should rethink its treatment. The appeals court granted the petition. Before reaching its conclusion on vacatur, however, the court spent a little time addressing the ARB’s interpretation of section 20109(c)(1), which it found questionable and cause for concern. It noted that the “statutory language and overall scheme and context of § 20109″ indicate that the purpose of subsection (c)(1) is to ensure that employees receive prompt medical attention for on-the-job injuries. The court worried whether construing subsection (c) as a dictate that railroad carriers must “stay completely out of the way of medical treatment” and medical offices they fund, would encourage such carriers “to limit or even abandon voluntary payment schemes of the sort in use here” in order to avoid the attorneys’ fees and punitive damages associated with section 20109(d) suits (which was 95% of the ALJ’s award here).
No evidence of pressure. However, even if the ARB’s interpretation was correct, the appeals court found vacatur proper. The ALJ’s decision, and the finding that the employer’s influence made the OHS’s determination not a “truly independent” one, was not supported by substantial evidence. First, there was no record evidence supporting the ALJ’s finding that mere existence of contractual provisions that allowed the employer to exercise certain powers over employment decisions constituted a coercive force that undermined the independence of determinations. There was no evidence suggesting that those provisions had an actual effect, “never mind evidence suggesting that OHS’s independence was compromised in this case.” There was no evidence that the employer had even invoked those contractual powers and no evidence that it set goals for occupational injury determinations or “dangled” threats to encourage minimization of costs. In fact, there was no evidence that the OHS staff members felt any pressure to decide things a certain way. With regards the RN who acted as administrator for Metro-North and was employed by it, there was no evidence that her presence there influenced the decision.
No influence on medical judgment. The court next considered the alleged deficiencies in the medical judgment based on the OHS employees’ failure to contact the injured employee’s physicians directly and their failure to consider that, prior to the injury, he had been asymptomatic. While perhaps sufficient to imply that the determination was incorrect, this still provided no basis to attribute that error to the employer’s influence, rather than to the OHS employees’ “incompetence, laziness, or simple mistake.” The court found the ARB’s decision unsupported by substantial evidence and vacated it.
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