U.S. Department of Labor
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U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 2021 0
In the Matter of:
JOHN WEYERS,
ARB CASE NO. 2016-0088
COMPLAINANT,
V.
ALJ CASE NO.
DATE:
2014-FRS-00062
JUN 1 7 2019
MONTANA RAIL LINK, INC.,
RESPONDENT.
Appearances:
For the Complainant:
James T. Towe, Esq.; Towe & Fitz patrick, PLLC; Missoula, Montana
For the Respondent:
Jeffrey A. Jackson , Esq.; Burns Whit e LLC; Pitts burgh, P e nnsylvania
Before : William T. Barto, Chief Administrative Appea ls Judge; James A.
Hay n es and Daniel T. Gresh, Administrative Appeals Judges.
FINAL DECISION AND ORDER
PER CURlAM. Th.is case arises under the employee protection provisions of t he
Federal Rail Safety Act of 1982 (FRSA). 1 J ohn Weven:, claimed that his employer ,
Montana Rail Link (MRL). violated the FRSA when it censured him for improper
use of work time and interfer ed with his medical treatment fo llowing workplace
49 U.S.C. § 20109 (2008), as a rne ndP.d h y Section 1521 of the Implementi ng
Recommendqtions oft.he 9/1 l Com mission Act of 2007 (9/1 1 Act), Pub. L. No. 110-53, and as
implemented by feder al regulations at 29 C. F.R. Part 1982 (2014).
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injuries. A Department of Labor (DOL) Administrative Law Judge (ALJ) dismissed
his complaint after a hearing, and Wevers appealed the case to the Administrative
Review Board (ARB or Board). For the reasons stated below, we affirm.
8ACKGROUND2
Wevers began working for MRL in December 2007 as part ofMRL's
communications department. The communications technicians manage large areas
and travel significant distances to check on equipment. At MRL, Wevers was
supervised by Dan Johnson, who in turn reported to Gary Loeffler, Director of
MRL's Signal and Communication Department, who reported to Randy Gustin,
Chief Engineer. Decision and Order (D. & 0.) at 5.
MRL provides a Wellness Program for employees injured on duty. Id. To
receive benefits, the employee must report the injury and accept alternate work
prescribed by a treating physician. D. & 0. at 6. MRL's Plan Administrator makes a
determination as to whether medical treatment is necessary but may delegate that
decision to another. The Wellness Program is voluntary but necessary for Wevers to
receive short-term disability benefits. Id. The Plan Administrator reviews billing
authorizations and makes final determinations as to whether to authorize the
treatment. D. & 0. at 7. The Plan Administrator relies on medical providers to
make medical recommendations and referrals. MRL also uses a nurse case-manager
to assist in administering the Wellness Program. The nurse management service
also has a separate agreement and participation form.
1. Wevers's December 5. 2012 Injury and Treatment
On December 5, 2012, Wevers was working on communications equipment in
Clark Fork, Idaho, when he slipped while climbing down and struck the ground. His
right knee locked up and jammed his leg, hip, and right spine area. D. & 0. at 9.
The equipment was in good working shape and no discipline was issued. Wevers
attempted to self-treat overnight, but the next day he asked to be taken to the
emergency room. Johnson drove him to the emergency room and waited with him.
Physicians diagnosed Wevers with a fractured transverse processor, gave him pain
killers and muscle relaxers, and sent him home with instructions for rest. D. & 0. at
We adopt the ALJ's findings and restate them in relevant part. In reciting the ALJ's
findings, we make no independent findings of fact.
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10. After leaving the emergency room, Wevers then returned to MRL and filled out
an injury form. Id.; CX-47. MRL reported the injury to the Federal Railroad
Administration. Over the next several days, Wevers received information on MRL's
Wellness Program and signed a release. D. & 0. at 10. In order for MRL to provide
benefits and wage continuation, they required access to Wevers's medical
information.
The Plan Administrator, on or around December 14, set up an appointment
for Wevers with Dr. Dana Headapohl from PMG MT Occupational Health clinic,
which is affiliated with St. Patrick Hospital where Wevers sought treatment.
Wevers did not pick Headapohl and was not consulted concerning the selection of
his treating physician. Id.; Hearing Transcript (Tr.) 70-73. Most of Wevers's visits
with Headapohl were actually with Dr. Headapohl's physician's assistant.
MRL arranged for a nurse manager from Stevenson Consulting to assist in
the management ofWevers's care. The nurse case-manager at Stevenson
Consulting contacted Wevers on December 19, 2012. As part of her management
duties, the nurse case-manager frequently consulted with Wevers, arranged
appointments, and sat in on appointments and discussions with the physicians. The
nurse case-manager received requests from the other providers and submitted them
to the treating physicians, and upon approval there, forwarded them along to MRL
for approval. D. & 0. at 12.
Headapohl and the physician's assistant first treated Wevers on December
14, 2012, and continued to treat him throughout his treatment plan. The physician's
assistant gave Wevers trigger point (steroid) injections throughout his treatment.
Wevers returned to modified duty on December 18, 2012. D. & 0. at 11. Modified
duty involved working around the office and doing what he could do remotely.
Wevers's treatment included physical therapy and sports rehabilitation, which MRL
approved. Id. Wevers was to receive treatment from a local physical therapist. Id.
The Plan Administrator authorized four to six weeks of physical therapy with three
therapy sessions weekly. D. & 0. at 13.
The nurse case-manager attended a meeting with Wevers and Dr. Headapohl
on February 20, 2013. Headapohl and the physician's assistant decided on
conservative treatment as Wevers would reach maximum medical improvement
(MMI) in the near future. The physical therapist requested six weeks of therapy for
Wevers but Headapohl and the physician's assistant approved only one week given
the determination for conservative care on February 20. Id.
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Wevers complained to the Plan Administrator that the nurse case-manager
was contacting him too much and he was being "mother-hen'd." Id.; Tr. 75-76; CX-9
(Feb. 25, 2013 e-mail). Wevers felt that the caregivers were pushing him to heal too
quickly and not giving him enough time.
Because Wevers had reported that his pain had flared up on February 25,
2013, the physical therapist recommended that Wevers receive additional physical
therapy for four to six weeks. CX-10. But the physician's assistant denied the
request and cancelled further physical therapy. D. & 0. at 14. On February 27,
2013, the physician's assistant referred Wevers to a spine and pain clinic for facet
and joint injections. CX-11. The physician's assistant also recommended specialized
work-hardening physical therapy, which was approved.
Wevers began the specialized physical therapy. The treatment was to consist
of three weekly sessions with home physical therapy in between. D. & 0. at 14.
Physical therapy continued through March and April. On April 16, the therapist
recommended two to three more weeks of physical therapy, after which time Wevers
would be MMI and ready to return to work full time. D. & 0. at 15. The therapist
also recommended a chiropractor for Wevers if needed. D. & 0. at 14; CX-16; Tr. 79.
Wevers kept Johnson, his supervisor, abreast of his schedule. Johnson kept
Loeffler and Gustin informed of Wevers's progress. On average, Wevers was going
to the physician's office once a week and getting physical therapy for three hours,
three times a week from the date of the injury until April 2013. Wevers's medical
treatment was considered work time. On February 5, 2013, Johnson forwarded
Wevers's schedule to Loeffler who expressed surprise at Wevers's light schedule ("I
need that schedule"). D. & 0. at 15; CX-58-1, 5. There were more comments again
on February 13. Loeffler referred to Wevers as the "six million dollar man" who
might implode. D. & 0. at 15; CX-58-3; Tr. 85. Since it was an on-duty injury, it was
determined that the best course was to continue with his treatment as is.
Wevers worked sedentary duty in the morning, went home for lunch,
switched to his personal vehicle, and then attended physical therapy in the
afternoon. D. & 0. at 16; Tr. 92-95. On April 19, 2013, Wevers was assigned to a
2:00 pm physical therapy appointment, which was approved as paid work time.
Wevers did not attend the meeting. Wevers testified that he took a pain pill at
lunch and fell asleep. Wevers slept through the appointment, did not call the office
5
and did not speak with anyone from the office until the next week. D. & 0. at 16; Tr.
98-99.
Johnson suspected Wevers was wasting time based on comments that a coworker overheard. D. & 0. at 16; Tr. 212-213. Johnson decided to drive to Wevers's
house on April 19 to see ifhe was at home or at the physical therapy appointment.
Two cars were there. Johnson returned to MRL and spoke with Gustin. They pulled
Wevers's physical therapy attendance records to see if he had been attending. MRL
learned that he had not attended and gave the office a false excuse about having a
work conflict. Having caught Wevers in an apparent lie, Gustin decided to issue
Wevers a censure letter for not attending physical therapy when he had been
excused from work to attend physical therapy. D. & 0. at 16-17. The charge was
failing to follow instructions, but the censure did not involve any loss of time or pay.
D. & 0. at 17. The April 24 censure was to be removed after two years if there were
no further incidents.
2. Wevers Continued Treatment and Returned to Normal Duty in the
Summer of 2013
Wevers or his medical providers requested a magnetic resonance imaging
(MRI) test, which was performed on April 26. The physician's assistant
recommended more treatment, injections and pain management. D. & 0. at 18.
Physical therapy continued, and Wevers remained on light duty through June.
Wevers experienced flare-ups and continued to receive injections. Headapohl
suggested that Wevers meet with a behavioral psychologist to work through his
pain issues, which Wevers did on June 28. D. & 0. at 19.
On July 11, Headapohl determined that Wevers had reached MMI and was
released for full duty. Wevers testified that he did not agree with the determination.
Id.
To help with Wevers's discomfort, MRL procured a new chair, new monitor,
new keyboard, and new docking station for Wevers. D. & 0. at 13. Wevers informed
MRL that his personal truck seat was better for his back pain. MRL asked for the
seat type to see if they could accommodate his request. Wevers asked if he could be
moved from a Chevy to a Dodge or Ford. MRL arranged for a different truck for
Wevers. D. & 0. at 13, 14, 19-20, 36.
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3. Wevers Requested Additional Injections
Wevers asked for additional injections on or about August 30, 2013. D. & 0.
at 86-87; Tr. 491-492; CX-35. The nurse case-manager passed this request on to
medical providers and MRL. Wevers changed his mind on or around September 5,
2013, when he conveyed to the nurse case-manager that his condition had improved
and indicated that he no longer needed additional injections. D. & 0. at 87. During
follow up conversations with the nurse case-manager in early and mid-September,
Wevers did not repeat his request for more injections. D. & 0. at 88. Wevers
reinitiated his request for injections on or about September 30, 2013. The nurse
case-manager followed up with MRL and with Headapohl, but Headapohl was out of
the country in early October. D. & 0. at 87. Wevers again requested injections on
October 16, 2013. Headapohl recommended conservative care given his high level of
function and active routine.
4. September Performance Review
In September 2013, Johnson became concerned that Wevers was not
performing his duties. Johnson received complaints from co-workers that Wevers
would drive to a site and enter and exit without performing any work. D. & 0. at 20;
Tr. 291-292. The entry and exit alarms were triggered, but the alarms that would
show actual work being performed were not triggered. D. & 0. at 20; Tr. 291-293.
Johnson also felt that Wevers's report of work accomplished should have taken less
time than he accounted for in his records. Tr. 221-222. During the time when
Wevers was supposed to be at a work site, Johnson observed that his truck was not
there.
Johnson informed Gustin of his concerns and the co-workers' complaints.
Gustin decided that the complaints needed to be verified and recommended that
Johnson conduct operations testing. Johnson and another supervisor conducted an
unobserved operations test on Wevers and other employees. They rented a car and
followed Wevers's activities on September 25 and 26. On September 26, they
observed Wevers taking a long lunch with a co-worker and stopping at a boat dealer
and other places that did not have a clear work purpose. D. & 0. at 21.
Wevers submitted time sheets for full days worked for both observation days.
D. & 0. at 22. Johnson reported his observations to Gustin. When questioned about
the specifics of his activities during the two days, Wevers provided alternate work
reasons for his visits to the shops. Id. at 22; Tr. 109. On September 27 and 30,
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Wevers submitted documents purporting to justify his whereabouts and the proper
use of company time.
MRL has three categories of violations: minor, major, and serious. D. & 0. at
7. Discipline can range from censure to termination. MRL has an internal grievance
procedure through a collective bargaining agreement as well as a process for
escalating complaints through supervisors and human resources. D. & 0. at 8.
Gustin testified that MRL's rules on abusing work time and dishonest time
accounting are serious and subject to the heaviest discipline. Id.; Tr. 520. MRL has
terminated individuals for stealing as little as fifteen minutes of company time
under certain circumstances. Gustin decided to issue an efficiency failure. On
September 27, Gustin issued Wevers a letter of discipline and a notice of a factfinding hearing for misusing company time. On October 18, 2013, Wevers waived
his hearing and signed a statement acknowledging that he conducted personal
business on company time on September 25 and September 26. Wevers received a
ten-day suspension that was waived so long as no other violations occurred in
eighteen months. D. & 0. at 24.
5. Wevers's Second Injury on October 22 and Request for Referral to
Neurosurgeon
On October 22, 2013, Wevers reinjured his back. While at work, he stepped
down from a trailer at a gas station and heard two pops. He continued to do some
work, did some stretching, and then took some pain pills. Later, Johnson drove
Wevers to the emergency room (ER). The x-rays showed some degenerative disc
disease but no fracture, subluxation, or dislocation. Id. The ER physician's
discharge order instructed Wevers to follow-up with his regular provider or see a
neurosurgeon. Tr. 366; CX-42.
Wevers filed an injury report with MRL on October 23, and the Wellness
Program and associated process with Headapohl, the physician's assistant and the
nurse case-manager began anew. Wevers began physical therapy again. Following
Wevers's discharge from the hospital, the nurse case-manager set up an
appointment with Headapohl and noted that a neurosurgeon or neurologist
consultation was requested. In November 2013, a neuro-electrophysiological (EMG)
test for Wevers was approved and performed. D. & 0. at 25; Tr. 404. The EMG is a
diagnostic test for back and spine matters. Dr. Headapohl did not refer Wevers to a
neurosurgeon because the EMG test did not indicate that such treatment was
necessary. D. & 0. at 26.
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In the fall and winter, Wevers saw medical providers numerous times and
received additional steroid and facet injections. The physician's assistant
recommended that the physician administering the program of injections take over
as treating physician, but the physician declined the recommendation. Id.
Wevers attempted to seek additional care at the U.S. Department of Veterans
Affairs CVA). The treating doctor at the VA agreed to have an MRI performed, but
no referral to a neurosurgeon was produced. D. & 0. at 33; Tr. 482-83. The nurse
case-manager testified that referrals to neurosurgeons may be appropriate when an
MRI shows a disc problem. Tr. 437.
Wevers wanted a neurosurgeon to look at his MRis and to inform him if there
were other treatments that could be more effective than injections. D. & 0. at 30.
Wevers could not see the neurosurgeon on his own because the neurosurgeon would
not treat him without a referral because of workers' compensation requirements. Tr.
425-26, 492; D. & 0. at 29, 90.
Neither Wevers's treating physician Headapohl nor the physician's assistant
approved Wevers's requests to see a neurosurgeon. Tr. 426; D. & 0. at 29. MRL
never received a request for authorization to send Wevers to a neurosurgeon or
neurologist. Tr. 119, 367. The nurse case-manager testified that every authorization
MRL received was approved. Tr. 4 70, 4 76-4 77. In April 2014, Headapohl and the
physician's assistant determined that Wevers had reached MMI and was fit to
return to work without restrictions. D. & 0. at 28.
6. Wevers's Complaint and the ALJ's Order
Wevers filed his complaint with the Occupational Safety and Health
Administration (OSHA) on October 22, 2013. Wevers alleged that MRL interfered
with his medical treatment and retaliated against him for reporting his injuries and
making a safety complaint. Wevers also alleges retaliation against him for following
a doctor-prescribed course of treatment.
On February 6, 2014, OSHA dismissed Wevers's complaint, and Wevers
requested a hearing before an ALJ. The case was assigned to an ALJ for a hearing,
which was held beginning on September 9, 2014. After making specific credibility
findings, the ALJ concluded that Wevers engaged in protected activity when he
reported his injuries in December 2012 and October 2013. The ALJ further
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concluded that Wevers engaged in protected activity when he requested medical
treatment and followed the treatment plan of a treating physician. The ALl also
concluded that Wevers's censures in April and October 2013 and his ten-day waived
suspension constituted adverse actions, but that MRL did not create a hostile work
environment. The ALl found that Wevers had not established that his reports of
injuries contributed to the censures and waived suspension. The ALJ found that
Wevers's censures and waived suspension were related to events surrounding his
treatment plan, but found that MRL would have censured Wevers and given him a
waived suspension even if he had not been injured and followed the treatment plan
of a physician because he violated company policy concerning personal use of work
time. Finally, the ALl found that MRL did not delay, deny, or interfere with
Wevers's requested medical treatment concerning referrals to a neurosurgeon or
chiropractor or for general care. The ALl concluded that MRL's initial selection of a
clinic and physician was an interference with Wevers's medical treatment but that
Wevers's ultimate care would have been the same even ifMRL did not select the
physician as many others concurred with Headapohl and the physician's assistant
concerning Wevers's treatment. Wevers appealed the ALJ's decision to the ARB.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the ARB to review ALJ
decisions in cases arising under the FRSA and to issue final agency decisions in
these matters. See Secretary's Order No. 01-2019 (Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board), 84 Fed. Reg.
13,072 (Apr. 3, 2019); 29 C.F.R. § 1982.ll0(a). The ARB reviews questions oflaw
presented on appeal de nova but is bound by the ALJ's factual determinations as
long as they are supported by substantial evidence. 29 C.F.R. § 1982.1 l0(b); Kruse
u. Norfolk S. Ry. Co., ARB Nos. 12-081, 12-106; ALJ No. 2011-FRS-022, at 3 (ARB
Jan. 28, 2014). Under this standard, we look to the existing administrative record
and ask whether it contains sufficient evidence to support the ALJ's findings of fact.
See Biestek v. Berryhill, 587 U.S._,_ (2019) (slip op. at 5) (citing Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The evidence will be sufficient ifit is
"more than a mere scintilla," Biestek, 587 U.S. _ , slip op. at 5, and need not
amount to a preponderance. See Fund for Animals u. Kempthorne, 538 F.3d 124, 132
(2d Cir. 2008). "It means-and means only-'such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."' Biestek, 587 U.S._, slip
op. at 5 (quoting Consolidated Edison, 305 U.S. at 229).
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DISCUSSION
The FRSA, as amended, prohibits a railroad company, a contractor, officer, or
employee of a railroad company from retaliating against an employee because the
employee engaged in activity protected by the FRSA. 3
A successful FRSA complainant must prove the following: (1) that s/he
engaged in protected activity; (2) suffered an adverse action; and (3) that the
protected activity was a contributing factor in the unfavorable employment action.
49 U.S.C. § 4212l(b)(2)(B)(iii) (2000); Luder u. Cont'l Airlines, Inc., ARB No. 10-026,
ALJ No. 2008-AIR-009, slip op at 6-7 (ARB Jan. 31, 2012). If the employee prevails
on the elements of the complaint, s/he may receive remedies. To avoid liability for
remedies, the employer must prove by clear and convincing evidence that it would
have taken the same action absent the employee's protected activity. Clear and
convincing evidence is "[e]vidence indicating that the thing to be proved is highly
probable or reasonably certain." Williams v. Domino's Pizza, ARB No. 09-092, ALJ
No. 2008-STA-052, slip op. at 6, 9 n.6 (ARB Jan. 31, 2011).
1. Wevers Alleges that MRL Retaliated against Him for Reporting his
Workplace Injuries
The FRSA prohibits a railroad carrier engaged in interstate commerce or its
officers or employees from discriminating against an employee because the
employee engages in any of the protected activities identified under 49 U.S.C.
§ 20109(a). The relevant provisions of the FRSA protect an employee from
retaliation if the retaliation is "in whole or in part" due to the employee's "lawful,
good faith" effort to do one or more of the following:
(a)(l) to provide information, directly cause information to
be provided, or otherwise directly assist in any
investigation regarding any conduct which the employee
reasonably believes constitutes a violation of any Federal
law, rule, or regulation relating to railroad safety ...
49 U.S.C. § 20109. The FRSA incorporates the procedures found in the
whistleblower protection section of the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century, commonly known as "AIR 21." See 49 U.S.C. § 20109(d)(2)(A)
("Any [enforcement] action [under the substantive prohibitions on retaliation for
whistleblowing] shall be governed under the rules and procedures set forth in [the AIR-21
whistleblower protection provision].").
3
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(a)(4) to notify, or attempt to notify, the railroad carrier or
the Secretary of Transportation of a work-related
personal injury or work-related illness of an employee.
49 U.S.C. § 20109(a).
A. Wevers's Report oflniuries did not Contribute to his Adverse Actions
Wevers filed an injury report on December 5, 2012, when he slipped on a top
step and his right foot hit the ground in a jarring manner affecting his hip and
lower back. Wevers also filed an injury report on October 22, 2013, when he stepped
down off a fuel trailer again jarring his lower back area. It is undisputed that these
injury reports constitute protected activity under the FRSA.
On April 24, 2013, MRL issued Wevers a censure for violating MRL policy for
failing to inform a supervisor that he was going to be absent from a scheduled
physical therapy appointment. On October 18, 2013, Wevers signed an
acknowledgement and waiver and received a censure letter and ten-day waived
suspension for misuse of company time. W evers did not lose any pay or time
because of the censures. The ALJ determined that Wevers's censure letters were
adverse actions. D. & 0. at 46. MRL does not dispute the ALJ's finding that the
censures were adverse actions on appeal.
The ALJ determined that Wevers's reports of injuries were a causal "dead
end" that did not contribute in any way to his censures. D. & 0. at 60. We conclude
that the ALJ's findings on this point are supported by substantial evidence. 4 Wevers
reported his initial injury in December 2012. On April 19, 2013, Wevers missed the
physical therapy session that he said that he would attend during paid work time.
D. & 0. at 61. MRL censured Wevers on or about April 24, 2013, within a week of
4
The ALJ factored in Wevers's lack of credibility in her assessment of causation. D. &
0. at 60. The ARB accords special weight to an ALJ's credibility findings that "rest
explicitly on the evaluation of the demeanor of witnesses." Litt v. Republic Serv. of S. Nev.,
ARB No. 08-130, ALJ No. 2006-STA-014, slip op. at 8 (ARB Aug. 31, 2010). Lesser weight is
accorded to a credibility finding based on other aspects of a witness's testimony, such as
internal discrepancies or witness self-interest. Monde v. Roadway Express, Inc., ARB No.
02-071, ALJ Nos. 2001-STA-022, -029, slip op. at 16 (ARB Oct. 31, 2003). The ALJ noted
Wevers's inconsistent conduct and observed his convenient and self-serving explanations
and justifications following the discovery of his wrongdoing. D. & 0. at 31-33. We conclude
that the ALJ's credibility findings are supported by substantial evidence.
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discovering Wevers's abuse of company time. The ALJ found that the span of four
months between his injury report and his censure lacked a strong temporal
connection. Id. We concur. A short duration between adverse action and protected
activity can constitute circumstantial evidence of causation but is not necessarily
dispositive of contributing factor causation. Barker v. Ameristar Airways, Inc., ARB
05-058, ALJ No. 2004-AlR-012, slip op. at 7 (ARB Dec. 31, 2007). Johnson's
receiving a complaint about Wevers and discovering his abuse of work time served
as intervening events that diminished any causal inference from temporal
proximity with the December report of an injury. Id. The investigation into Wevers's
conduct was reasonable and unrelated to the injury report except for the incidental
point that he should have been at a physical therapy appointment as part of his
treatment stemming from the injury report.
The ALJ also found that Wevers's injury report did not contribute to his
discipline in October. The temporal proximity of nine to ten months between the
October discipline and the December 2012 injury report is minimal. D. & 0. at 64.
The ALJ determined that non-retaliatory reasons accounted for the October
discipline. We conclude that the ALJ's findings are supported by substantial
evidence. The late September investigation into Wevers's work was brought about
in part from his co-workers' complaints. The ALJ found that these complaints were
reasonable. One co-worker was worried about work not being completed and the
danger to the overall rail system. D. & 0. at 62. Another co-worker was hostile
toward Wevers because of the increased work load. The ALJ considered the covert
performance surveillance as a routine response to the co-workers' complaints and
corroborating circumstances. Id. MRL's investigation and discovery ofWevers's
wrongdoing constituted intervening events leading to the October censure and tenday waived suspension. We note that Wevers's letter of discipline was issued one
day after the discovery of his wrongdoing.
The ALJ observed that Wevers's evidence of contribution stems mainly from
MRL's inability to prove the appropriateness of its disciplinary charge. But the ALJ
correctly concluded that MRL was not burdened with proving the correctness of its
disciplinary charge, but only that Wevers's injury report or other protected activity
did not cause its disciplinary charge in whole or in part. Id. The ALJ also
discounted contribution in part because of the light discipline Wevers actually
received for his misuse of company time, which included censure letters, a waived
suspension and notations in his personal file that would be removed if he had no
further problems. D. & 0. at 63.
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B. Wevers did not Suffer a Hostile Work Environment
Wevers also claims that he suffered a hostile work environment based upon
co-workers' and management's attitude toward his injury and MRL's investigations
into Wevers's use of company time. The ALI found that Wevers did not suffer a
hostile work environment. D. & 0. at 4 7-48. On appeal, Wevers complains that the
ALJ erred and raises comments by co-workers and MRL supervisors concerning his
light-duty status following his injury. For example, a co-worker told him to "man
up" and called him a "wuss," and Loeffler mocked his injuries by calling him a "six
million dollar man" and suggested that he might implode. Wevers Br. at 6-7, 24-25.
Wevers further claims that MRL secretly followed him, which provides evidence of
harassment.
We affirm the AL.J's conclusion that Wevers did not suffer an actionable
hostile work environment. To constitute an actionable hostile work environment,
that environment must be sufficiently severe or pervasive to alter the conditions of
the victim's employment and create an abusive working environment. Williams v.
Nat'/ R.R. Passenger Corp., ARB No. 12-068, ALJ No. 2012-FRS-016, slip op. at 6-7
(ARB Dec. 19, 2013), citing Harris v. Forklift Sys., 510 U.S. 17, 21-23 (1993). The
record supports the ALJ's finding that the actions of Loeffler and Gustin did not
create a sufficiently severe abusive work environment for Wevers. Loeffler's and
Gustin's comments were exchanged by e-mail and were not known to Wevers except
through discovery during litigation. The ALI noted that Loeffler had no decisionmaking role in the censures. D. & 0. at 47, 64. Co-workers expressed negative views
ofWevers's work status but the ALJ's conclusion that these were insufficiently
severe or pervasive to create a hostile work environment is correct. Co-workers'
concerns with Wevers's work status arose out of safety concerns and increased work
load. D. & 0. at 47-48, 62.
Finally, we affirm the ALJ's conclusion that Johnson's investigation into
Wevers's performance was not evidence of harassment or a hostile work
environment. Although Johnson received information about Wevers's abuse of work
time from another employee before his investigation, Johnson supported his
assessment ofWevers's abuse of work time through an independent inquiry without
relying on information from others. The ALJ correctly reasoned that these
performance investigations were standard and routine. D. & 0. at 4 7.
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2. Wevers Alleges that MRL Interfered with his Medical Treatment and
Disciplined him for Following a Physician's Treatment Plan
A. MRL did not Deny. Delay. or Interfere with Wevers's Medical or First Aid
Treatment
1.
Subsection 20109(c)(l) prohibits an Employer from interfering with
Prompt Medical Attention
The FRSA prohibits employers from denying prompt medical treatment and
disciplining employees for following the treatment plan of a treating physician:
(c) Prompt Medical Attention.(l)Prohibition.A railroad carrier or person covered under this
section may not deny, delay. or interfere with the
medical or first aid treatment of an employee who is
injured during the course of employment. If
transportation to a hospital is requested by an
employee who is injured during the course of
employment, the railroad shall promptly arrange to
have the injured employee transported to the
nearest hospital where the employee can receive safe
and appropriate medical care.
(2) Discipline.A railroad carrier or person covered under this
section may not discipline, or threaten discipline to,
an employee for requesting medical or first aid
treatment. or for following orders or a treatment
plan of a treating physician, except that a railroad
carrier's refusal to permit an employee to return to
work following medical treatment shall not be
considered a violation of this section if the refusal is
pursuant to Federal Railroad Administration
medical standards for fitness of duty or, if there are
no pertinent Federal Railroad Administration
standards, a carrier's medical standards for fitness
for duty. For purposes of this paragraph, the term
"discipline" means to bring charges against a person
in a disciplinary proceeding, suspend, terminate,
15
place on probation, or make note of reprimand on an
employee's record.
49 U.S.C. § 20109(c)(l)-(2).
Wevers alleges that MRL interfered with his medical treatment. As the ALJ
observed, subsection (c)(l) is not a typical whistleblower protection provision but is
instead a direct prohibition of certain conduct. D. & 0. at 77. Likening subsection
(c)(l) to an anti-retaliation provision, the ALJ reasoned that a request for medical
treatment would constitute the protected activity under this subsection and the
employer's adverse action would be the denial, delay, or interference with medical
treatment. Extending this analysis, the ALJ concluded that subsections 20109(c)
and (d) would implicitly incorporate the typical requirement of contributing factor
causation and thereby provide the employer with an affirmative defense that its
action is not a prohibited interference or denial of treatment but a reasonable
course of action. 5
Both parties cite to and rely upon in their arguments this Board's prior
decision in Santiago u. Metro-North Commuter R.R. Co., Inc., ARB No. 10-147, ALJ
No. 2009-FRS-0ll (ARB July 25, 2012). In that case, Santiago hurt his back when
he fell from a broken chair while working for Metro-North Commuter Railroad.
Santiago was taken to the hospital in distress. After his hospital visit, Santiago
went to the Occupational Health Services Clinic (OHS) for treatment. The OHS
treated Santiago but discontinued his treatment after Santiago's condition
improved. Santiago desired additional treatment. Metro North had so far paid
Santiago's treatment costs for three months, but the resolution of the occupational
injury meant that Metro-North would no longer be paying for treatment. Because
Metro-North was no longer paying Santiago's treatment costs, Santiago's additional
treatments were to be paid out of private insurance. Private insurance covered most
of Santiago's additional treatments but Santiago had to pay for other treatment out
of pocket.
49 U.S.C. § 20109(d)(l) ("In general.--An employee who alleges discharge, discipline,
or other discrimination in violation of subsection (a), (b), or (c) of this section, may seek
5
relief in accordance with the provisions of this section, with any petition or other request for
relief under this section to be initiated by filing a complaint with the Secretary of Labor.");
id. at§ (d)(2)(i) ("Burdens of proof.--Any action brought under (d)(l) shall be governed by
the legal burdens of proof set forth in section 42121(b)").
16
Santiago filed a complaint with OSHA, which concluded that Metro-North
had unlawfully interfered with his treatment. Metro-North objected and requested a
hearing with an ALJ who, after a hearing, concluded to the contrary. The ALl noted
that subsection 20109(c)(l) was effectively comprised of a title and two sentences.
While the first sentence was ambiguous, when it is read in conjunction with
subsection (c)'s title, the second sentence of subsection (c)(l), and the entirety of
subsection (c)(2), the ALJ concluded that the reasonable construction of subsection
(c)(l) is limited to the period immediately following a workplace injury. Congress
included broader language such as "treatment plan of a treating physician" in
subsection (c)(2) but did not include that phrase in subsection (c)(l). Santiago, ALJ
No. 2009-FRS-011, slip op. at 21-22 (ALJ Sept. 14, 2010) (footnotes omitted). The
ALJ also examined comparable legislation in Illinois' and Minnesota's rail safety
legislation to find references to "immediate medical attention" for employees injured
on the job. Id. at 22. Finally, the ALJ observed that the Federal Employers Liability
Act, 45 U.S.C. § 51 (1939), provides the traditional route for employees to recover
medical expenses for on-the-job injuries. Id. at 9, 12-13, 23-26. Because subsection
20109(c)(l) was limited to a temporal period following a workplace injury, the ALJ
concluded that Metro-North's refusal to pay for Santiago's post-OHS medical
treatment was not a denial, delay, or interference with medical treatment. Id. at 2425.
Santiago appealed the ALJ's decision to the ARB, which vacated the ALJ's
opinion and remanded in light of its contrary interpretation of subsection (c)(l).
Reviewing the language of the first sentence of subsection (c)(l), the ARB observed
that nothing in the text referred to a temporal limitation: "A railroad carrier or
person covered under this section may not deny, delay, or interfere with the medical
or first-aid treatment of an employee who is injured during the course of
employment." The ARB went on to hold the following:
[S]ubsection 20109(c)(l) bars a railroad from denying,
delaying, or interfering with an employee's medical
treatment throughout the period of treatment and
recovery from a work injury. Because the language is
clear, reference to other statutes or legislative history to
determine its meaning is unnecessary. Nevertheless, the
legislative history of the statute supports our broad
interpretation of section 20109(c)(2).
17
Santiago, ARB No. 10-147, slip op. at 12. On remand, the ALJ found for Santiago
and ordered remedies; the ARB affirmed the ALJ's finding on appeal.
Metro-North appealed the ARB's opinion to the United States Court of
Appeals for the Second Circuit. In Metro-North Commuter R.R. Co. v. U.S. Dep't of
Labor, the Second Circuit vacated the ARB's Santiago opinion. 886 F.3d 97 (2d Cir.
2018). The Second Circuit examined the ARB's Santiago approach to subsection
(c)(l) and found several problems. As the ALJ and ARB had noted, subsection
(c)(l)'s prohibition is awkwardly nestled within the other protected activities which
more easily fit within AIR 21's whistleblower protections. The court of appeals
suggested that the DOL reconsider its interpretation of subsection (c)(l), 6 and
suggested a much simpler interpretation of§ 20109(c):
The statutory language and overall scheme and context of§ 20109 suggest
that subsection (c)(l)'s purpose "is to ensure employees receive prompt
medical attention if they are injured on the job," while subsection (c)(2), "the
antiretaliation provision, ... effectuates that purpose" by prohibiting
employers from disciplining or otherwise retaliating against employees who
request medical assistance or follow a treatment plan.
Id. at 108 (citing Grand Trunk W. R.R. Co. v. U.S. Dep't of Labor, 875 F.3d 821, 827
(6th Cir. 2017)). Notwithstanding this critical observation, the court of appeals
declined to overturn the ARB's interpretation of the subsection at that time because
the court concluded instead that the ALJ's decision was simply not supported by
substantial evidence, even under that interpretation.
Before the ALJ and now on appeal before the Board, Wevers argues that the
ARB's interpretation of subsection 20109(c)(l) in Santiago controls his complaint.
But in light of the court of appeals' suggestion, we take this opportunity to
reconsider our previous interpretation of subsection 20109(c)(l) and now conclude
that this subsection, when read in conjunction with the remainder of the section,
prohibits an employer from denying, delaying, or interfering with prompt medical
treatment or first aid only during the time period immediately following a
workplace injury.
6
The court of appeals made the following suggestion: "We suggest that the Board
might reexamine and further explicate its reasoning regarding § 20109(c)'s interpretation
in the future. Having so advised, we now turn to the lack of substantial evidence to support
the ALJ's decision." 886 F.3d at 108.
18
When the applicability of subsection (c)(l) is limited to the immediate
temporal period following a workplace injury, subsection (c)(l)'s purpose to ensure
prompt medical attention for the injury and subsection (c)(2)'s additional purpose to
ensure the injured employee can follow an ongoing treatment plan for the injury
complement each other. Cody v. Hillard, 304 F.3d 767, 776 (8th Cir. 2002)
("Statutes are to be interpreted as a whole .... In particular, courts should not
interpret one provision in a manner that renders other sections of the same statute
inconsistent, meaningless, or superfluous.") (citations omitted). The prohibition at
subsection (c)(l) against denying, delaying, or interfering with "prompt medical
attention" operates to ensure an injured employee's immediate care, as it prohibits
denying or refusing medical treatment or first aid following a workplace injury.
While nothing in subsection (c)(l)'s first sentence indicates a limitation of the
temporal period regarding when the treatment is received, the text of subsection
(c)(l) as a whole indicates that it was intended to be limited to first aid treatment
immediately following a workplace injury. We note that the title of§ 20109(c) is
"Prompt Medical Attention," and while "the title of a statute and the heading of a
section cannot limit the plain meaning of the text," Brotherhood of R.R. Trainmen v.
Baltimore & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947), it can "assist in clarifying
ambiguity," Minn. Transp. Reg. Bd. v. United States, 966 F.2d 335, 339 (8th Cir.
1992); see also Grand Trunk Western R.R. Co. v. United States Dep't of Labor, 875
F.3d 821, 826 & n.6 (6th Cir. 2017). The text of the second sentence of subsection
(c)(l) also provides examples of such "prompt medical attention," referring to an
employee's request for an ambulance or ride to a hospital, both of which are events
that typically occur in the immediate aftermath of an injury. "Prompt medical
attention" in (c)'s title, in conjunction with the second sentence of subsection (c)(l)
providing that employers promptly transport injured employees to a hospital if
needed or requested, supports our interpretation that subsection (c)(l) operates to
ensure prompt or immediate first aid medical treatment.
The language of subsections (c)(l) and (c)(2), when considered together, also
supports the conclusion that subsection (c)(l) is limited to the period of time
immediately following a workplace injury. The phrase "treatment plan of a treating
physician" is not used in subsection (c)(l), but only in subsection (c)(2). If Congress
had intended the prohibition at subsection (c)(l) to also include a "treatment plan of
a treating physician," it would have included that language in subsection (c)(l) as
well. "'[W]here Congress includes particular language in one section of a statute but
omits it in another ... , it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion."' Russello v. United States, 464
19
U.S. 16, 23 (1983). Furthermore, if the phrase "medical or first aid treatment" from
subsection (c)(l) did also encompass a "treatment plan of a treating physician,"
there would be no need to refer to a "treatment plan of a treating physician" in
subsection (c)(2), as (c)(2) also again would include protection for requesting
"medical or first aid treatment." Because the phrases were used disjunctively in
subsection (c)(2), the inclusion of just one of the phrases in subsection (c)(l) should
not be construed to include both phrases. A court should "give effect, if possible, to
every clause and word of a statute." Moskal u. United States, 498 U.S. 103, 109-10
(1990).
Accordingly, we will no longer adhere to the interpretation of subsection (c)(l)
that the Board had previously set forth in Santiago. 7 Instead, we hold that
subsection 20109(c)(l) prohibits an employer from denying, delaying, or interfering
with medical treatment or first aid only in the temporal period immediately
following a workplace injury. 8 Subsection 20109(c)(l)'s provision for prompt
"medical or first aid treatment" does not create a statutory right to ongoing or
unlimited medical treatment of choice over the entire course of a treatment plan or
recovery period for a workplace injury. As Wevers does not complain of his medical
or first aid treatment immediately following his workplace injuries, the only
question that remains before us is whether MRL disciplined or threatened to
discipline Wevers for following the treatment plan of a treating physician. 9
7
In overturning Santiago's interpretation of (c)(l), we provide detailed reasons for
construing the ambiguity of (c)(l) in a manner consistent with the remainder of (c)(l), the
title of (c), and consistent with the overall language of subsection (c) including (c)(2). Nat 'l
Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
8
The determination as to what constitutes an appropriately limited temporal period
will necessarily be fact-driven and so we decline to set forth any specific temporal limits or
boundaries.
9
Even if we were to follow the Board's previous decision in Santiago interpreting
subsection (c)(l), we would nevertheless conclude that the ALJ's findings that MRL did not
deny or delay Wevers's medical or first aid treatment are supported by substantial evidence
cited in her decision. In light of our disposition of this matter, we need not address the
ALJ's efforts to apply the burdens of proof prescribed in 49 U.S.C. § 4212l(b) to a purported
violation of subsection 20109(c)(l) or the possible limits of our previous decision in Rudolph
v. Nat'/ R.R. Passenger Co., ARB No. 11-037, ALJ No. 2009-FRS-015 (ARB Mar. 29, 2013).
20
B. MRL would have Censured Wevers even if He were not Following the
Treatment Plan of Physicians
i.
Wevers's Censures arose from Misconduct that took place while He was
still following His Treatment Plan
The FRSA prohibits employers from retaliating against or disciplining an
employee for following the treatment plan of a treating physician. 49 U.S.C.
§ 20109(c)(2). Once Wevers entered the Wellness Program, he received several
prescribed treatments from Headapohl and the physician's assistant, one of which
was light-duty work status. Wevers claims that his following his physicians'
treatment plan was a contributing factor in his April and October 2013 disciplines.
The ALJ found that there was temporal proximity between the treatment
plan and the April and October disciplines because Wevers's treatment and lightduty work status were ongoing dating from his injury through to when he received
his censures. D. & 0. at 67-68. The ALJ also found that Wevers's treatment plan
and the censures were inextricably intertwined and satisfied the contributing-factor
standard. D. & 0. at 67. Co-workers were upset, specifically about Wevers's light
duty and nonwork, and a co-worker was likely the source behind the complaint
about Wevers's wasting work time. This animosity formed the reason for the coworker's complaints to Johnson about Wevers. Co-workers' complaints, in addition
to corroborating circumstances, formed the reasons for the investigations, which
turned up a violation of company time.10
10
D. & 0. at 64-69. We do not necessarily endorse the chain of causation upon which
the ALJ relied. See BNSF Ry. Co. v. U.S. Dep't of Labor, 867 F.3d 942, 946-49 (8th Cir.
2017) (examining chain-of-causation analysis in FRSA cases); Koziara v. BNSF Ry. Co., 840
F.3d 873, 877 (7th Cir. 2016) ("[The ALJ] failed to distinguish between causation and
proximate causation. The former term embraces causes that have no legal significance. Had
the plaintiff never been born or never worked for BNSF he would neither have been hurt by
the plank flung at him by the energetic front-end loader nor have stolen railroad ties from
the railroad. But that doesn't mean that his being born or his being employed by the
railroad were legally cognizable causes of his being fired."); Kuduk v. BNSF Ry. Co., 768
F.3d 786 (8th Cir. 2014) (evaluating temporal proximity and causation in the context of
intervening events). In this case, however, we need not resolve any potential differences
because the ALJ went on to find that MRL had satisfied its affirmative defense, which we
affirm as supported by substantial evidence.
21
u.
MRL would have Censured Wevers even if He had not been following
the Treatment Plan
Because the ALJ found that Wevers's medical treatment plan, including
light-duty status, contributed to his censures, the ALJ also examined MRL's
affirmative defense. Despite any co-workers' bias toward Wevers because of his
light-duty status, the ALJ determined that MRL had carried its burden to prove by
clear and convincing evidence that it would have censured Wevers for violating
company use of time policy even if Wevers had not been following the treatment
plan of a treating physician. D. & 0. at 74, 76. The ALJ properly discounted the fact
that MRL learned ofWevers's wrongdoing through an investigation stemming from
Wevers's light-duty status and treatment plan as a means for Wevers to avoid all
accountability for his wrongdoing. D. & 0. at 70. The ALJ found that monitoring
employee performance and use of time were normal and routine actions, and MRL
would have censured Wevers if it had learned of his wrongdoing without reference
to his injury and treatment plan.
We conclude that the ALJ's findings in this regard are supported by
substantial evidence. MRL submitted a tabular exhibit with information about all
the other employees that it disciplined over a particular time frame. The ALJ found
that MRL's history of disciplining other employees was not itself conclusive, as it
could not accurately isolate for injuries, but when considered in conjunction with
Gustin's testimony, the exhibit supported MRL's affirmative defense. D. & 0. at 7172. The ALJ reasoned that co-workers' frustrations were not due to Wevers's workrelated injury or treatment plan but rather it was the fact that his work was not
being completed and work time was being wasted. D. & 0. at 74-75. The co-workers'
bias and hostility generated the complaint, which in turn triggered an independent
investigation. This investigation revealed a violation of company policy independent
ofWevers's protected activity. The proximate cause of the April censure letter was
Wevers's failing to attend the medical appointment; the proximate cause of the
October censure was Wevers's abusing company time during a performance review.
D. & 0. at 76. We affirm the ALJ's finding that MRL would have censured Wevers
for abuse of company time because he was not doing his job even if he had not
engaged in protected activity by following the treatment plan of a treating
physician.
22
CONCLUSION
Consequently, we HOLD that the employee protections provided at 42 U.S.C.
§ 20109(c)(l) are limited to the temporal period immediately following a workplace
injury. Except as noted above, the ALJ's findings and conclusions concerning
credibility, protected activity, contributing factor causation, and affirmative
defenses are AFFIRMED as legally correct and supported by substantial evidence.
Accordingly, this complaint is DISMISSED.
SO ORDERED.
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