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Railroad's Refusal to Abide by Doctor's Orders Can Constitute Illegal Retaliation

A March 26 OSHA ruling against New York City commuter railroad Metro-North clarifies that a railroad employer must respect any post-injury restrictions imposed by the employee's treating physician, and may be liable for illegal retaliation if it fails to do so.

Metro-North machinist Paul Cortese suffered a cut finger on July 6, 2009 and timely reported his injury. The treating physician ordered him off work for the remainder of July 6 and all of July 7.

OSHA found that each of the following ensuing actions by Metro-North violated the anti-retaliation provisions of the Federal Rail Safety Act of 2007:

  • Ordering Cortese to report to a more employer-friendly occupational health facility the day after his injury, so a physician's assistant could disregard the orders of the treating physician and release Cortese to return to work with restrictions

  • Ordering Cortese to serve as "fire watch" for an indoors welding procedure on a locomotive fuel tank. This would have required him to wear full fire protective gear, climb onto the locomotive, and hold a fire extinguisher. He had no training in this activity and all the component parts of it were inconsistent with the restrictions imposed by the occupational health PA. Metro-North told Cortese he would be fired if he refused to obey these orders to disregard the PA's instructions.

  • Repeatedly ordering Cortese to report to the occupational health PA for evaluation despite knowing that Cortese's real doctors had held him out of work.

  • Requiring Cortese to participate in a "safety counseling" session at which the railroad issued a written reprimand for placement in his file that purported to find the injury was his own fault.

  • Withholding work assignments from Cortese for a full week after his real doctors finally authorized him to return to work without restrictions.

At one point a Metro-North foreman named Dalbo told Cortese that if this injury had happened at any other work place, Cortese would have been ordered to put a glove on his hand and get back to work. The OSHA decision does not indicate what medical school Dalbo attended or what board certifications he holds.

The Rail Safety Act prohibits railroads from retaliating against employees who seek medical attention or follow the orders or treatment plans of treating physicians. OSHA found that while some of the bulleted items above may not have been in retaliation for medical care or medical orders, all of them were in retaliation for Cortese's having reported his injury.

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