Unlike employees in other industries, railroad workers do not automatically qualify for benefits under worker's compensation systems if they are injured while on the job.
Brian Peterson, Star Tribune
Gary and Janice Avary near their Minden, Neb., home. He refused to give blood after learning it would be used for genetic testing. BNSF agreed to refrain from such testing after a federal agency sued the railroad.
Brian Lehmann, Special to the Star Tribune
BNSF WORKER DEATHS AND INJURIES IN THE U.S.Between 2000 and 2009: 43 BNSF employees killed on duty. The most in a year during that span was six, in 2000, 2004 and 2009. 7,845 BNSF employees injured on duty. The number has gone down each of the past three years. In 2000, 1,025 injuries occurred. In 2009, there were 722 injuries.
- Article by: TONY KENNEDY and PAUL McENROE
- Star Tribune staff writers
- March 7, 2011 - 2:44 PM
Last of a four-part series
At age 25, Charles Ehlenfeldt thought he was set for life when he landed a job with the Burlington Northern Santa Fe railway in 1997: The pay was decent, a pension was guaranteed and he had job protection few blue-collar workers could match.
A few years later, Ehlenfeldt's gratitude was gone. After severely injuring his back, he later claimed the railroad began a campaign of harassment and intimidation to punish him for reporting an injury that required two surgeries.
His career culminated in a wrongful termination suit and an appearance before Congress in 2007. He told lawmakers how the rail giant fired him for heating a can of soup on the heater in his locomotive.
The railroad, which agreed to an out-of-court settlement in 2008, said Ehlenfeldt was fired for "misusing equipment."
The case is one of many that shows how quickly relations between BNSF and injured workers can turn hostile, sometimes leading to fierce legal battles with each side accusing the other of using unfair tactics.
Since 2000, at least 43 BNSF employees have been killed and 7,845 suffered work-related injuries, according to the Federal Railroad Administration. BNSF declined to say how much the company has paid out in settlements to those workers.
In lawsuits against BNSF, some workers have claimed the railroad deliberately lost evidence or took other steps to cover up its liability for their injuries. Others say the railroad kept them performing hazardous work even after BNSF was aware of problems. And some have accused the company's claims representatives of tricking them into low settlement deals with false promises or misinformation.
BNSF officials agree the process is often adversarial, but they say the company is able to resolve most worker claims amicably. Moreover, they said the company has never intentionally interfered with the investigation of a worker's death or injury.
BNSF spokesman John Ambler said some employees have "exaggerated the extent of their injuries or fabricated the facts about the cause of their injuries." While some workers have sued the railroad for providing "false counsel," Ambler said those cases represent a "fraction" of the thousands of worker claims handled by BNSF in the past 10 years. Courts have awarded more than $50 million for worker claims since 2000, BNSF said.
"Our goal is to resolve cases and claims in a fair, honest and responsible manner," BNSF said in a written statement to the Star Tribune.
In an interview, Charles Shewmake, BNSF vice president and general counsel, said internal investigations often show that "one or two moments of mindlessness" put an employee in harm's way.
As part of its effort to reduce injuries, the railroad has gone to great lengths to identify what it considers problem employees.
In 2007, congressional investigators criticized BNSF and another railroad for using an employee review system that assigns points for unsatisfactory conduct, including rule infractions and work-related injuries. Investigators said railroad workers could be discouraged from reporting injuries because the approach often puts them in "disciplinary jeopardy," but railroad officials maintain the system is used to identify candidates for increased supervision, not punishment.
In 2001, the Equal Employment Opportunity Commission sued the company after the railroad decided to conduct secret genetic tests on a group of workers to see if they were susceptible to a certain kind of job-related injury. In a settlement, BNSF promised to never do it again.
BNSF officials said the railroad has made great strides in worker safety since 1992, when Du Pont Safety and Environmental Management Services said the company's injury record was "among the worst in the industry," according to a study done at the railroad's request. In 2009, BNSF said, the railroad generated two injuries for every 200,000 hours of work, an 84 percent decline from 1991.
Those safety gains can show up in an employee's paycheck. The number of injuries reported by BNSF employees is one of many factors in calculating bonuses for managers, professionals and some union employees, company officials said in interviews last summer.
The company noted that its employment practices have won praise in recent years from more than a dozen magazines and business groups, including Fortune World, the American Legion and the National Diversity Council.
"I do think we have a significant emphasis on the way we conduct ourselves, and the individual and company integrity," Ambler said in a July interview with the Star Tribune.
Railroading is treacherous. It's an unforgiving world where a missed signal can cause a collision and a garbled radio message can send a rail car down the wrong track.
Workers are sometimes killed where they stand. Others have lost arms and legs. Their spines may be damaged from years of heavy lifting and constant vibration, and their hearing is sometimes lost from years of noise. Safety is preached routinely, but thousands of accidents still take place each year throughout the industry.
Injured railroaders belong to a select class. Unlike workers in other industries, who automatically qualify for benefits for on-the-job injuries under state worker's compensation systems, railroaders are covered by the Federal Employers' Liability Act (FELA).
FELA pits workers against their employers. If the two sides can't agree on how much an injury is worth, workers or their surviving relatives can sue, but they won't be able to win in court unless they can prove the railroad was at least partly to blame. This adversarial system, created by Congress more than 100 years ago, allows judges or juries to award damages virtually without a limit.
"Our situation is fault-based, so the employee's contribution towards negligence is a factor, the railroad's negligence is a factor, and you've got lawyers on both sides, who are competing to try and win," Shewmake said.
In the case of Bob Reidelbach, a key issue was whether he should have been hauling 200-pound kegs of spikes, a job described as "horrific" in the 1980s by the American Association of Railroads, according to Reidelbach's lawsuit. For nearly 20 years, Reidelbach wrestled those kegs down the tracks of Montana and performed other "back-breaking duties," according to allegations in his lawsuit against the railroad.
He blamed the heavy lifting for wrecking his spine and forcing him to stop working in 1998. To help him walk, his spine was later fused with titanium screws and a bone graft from his hip. But pushing a mower on his small lawn in Billings can still buckle his legs.
In his lawsuit, Reidelbach alleged the railroad initially talked him out of suing. He said a BNSF claims agent promised the company would keep paying his wages and oversee his medical care while the two sides worked out a fair settlement, according to his lawsuit. Reidelbach alleged the railroad misled him about the value of his claim for years.
Though another BNSF worker with less severe injuries was awarded $950,000 by a Montana jury, Reidelbach said his claims agent told him he should accept $280,000 because Reidelbach could end up with nothing if he sued.
Realizing the statute of limitations on his claim was about to expire, he filed suit against the railroad in 2000.
"I could see they were just going to run me into the ground, playing the game, dragging me out,'' he said in an interview. "I just wanted a fair shake."
Though Reidelbach's lawsuit was initially dismissed, the Montana Supreme Court overruled the dismissal, allowing Reidelbach to pursue his claims in state court.
"The state has an overriding interest in protecting its citizens from fraudulent, malicious and bad-faith claims practices and the infliction of intentional emotional injury. ... The railroad can easily satisfy both its duty and obligation to provide a safe working environment for its employees under FELA, and its state-imposed obligation to engage in fair, good-faith claims practices once an employee has been injured,'' the court ruled in 2002.
The parties subsequently settled the case.
In a written response to the newspaper's questions, BNSF said Reidelbach was treated fairly by his claims manager and was offered several hundred thousand dollars "despite a prior settlement" involving a 1991 injury. BNSF said it offered Reidelbach vocational rehabilitation and encouraged him to take other jobs with the railroad, but Reidelbach "stated repeatedly that he was not interested in relocation or railroad jobs."
The railroad also addressed his work conditions.
"The spike keg allegations, to the extent that there is any truth to them, are from a bygone era of railroading," BNSF said in its statement. "BNSF has continued to move toward mechanization of tasks and has introduced technologies that improve the safety of all BNSF employees."
In 2007, BNSF and other major railroads appeared before Congress to address government reports that accused the industry of discouraging workers from reporting on-the-job injuries and accidents.
One witness was former BNSF worker Ehlenfeldt, who told members of the House Transportation Committee that the railroad penalized him by assigning 40 demerit points for suffering an injury reported to the federal government. If the injury had not been reported, Ehlenfeldt said, he would have incurred just five points. Employees with 45 points, according to congressional investigators, were automatically targeted for additional inspection and performance checks.
Transportation Committee Chairman James Oberstar, D-Minn., sharply questioned the fairness of what he called a "bizarre and Byzantine system."
"I think it is giving railroad safety a bad name," Oberstar said at the hearing.
BNSF has used the system to help identify workers who warrant closer supervision. Currently, about 1,500 of BNSF's 31,500 scheduled employees are enrolled in the program for demonstrating "at-risk behaviors," BNSF said in a written statement.
While the railroad said no employees have ever been disciplined or fired because they accumulated too many points, BNSF explained that some employees in the program "may commit a rule violation that subjects him/her to discipline, including the possibility of dismissal. But the two programs are managed entirely separately."
CSX, another major railroad, said it briefly targeted at-risk employees for increased supervision but stopped in 2006 after allegations of intimidation and harassment. A federal audit of CSX concluded that some employees believed they would be "subject to adverse consequences" if they reported an on-duty injury.
BNSF defended its system, telling lawmakers it helped reduce accidents by providing training and counseling to employees with bad work habits.
"This is simply an opportunity to spend time with the employee,'' BNSF executive Mark Schulze testified. "It is a discussion. It is not harassment and intimidation.''
BNSF was also accused of trying to intimidate employees when the railroad decided to secretly test the blood of 36 workers who had filed claims for carpal tunnel syndrome, a nerve disorder sometimes caused by using the same power tool every day.
The railroad was investigating whether the injuries could have been caused by a genetic abnormality, as opposed to an on-the-job injury, according to the Equal Employment Opportunity Commission, which labeled the theory "junk science." By shifting liability, the railroad could have reduced its costs on worker claims.
"Employees who refuse to undergo this unwarranted personal invasion are threatened with termination," EEOC alleged in its lawsuit, adding that its investigation raised "serious questions regarding BNSF's retaliatory and coercive practices."
The railroad's plan unraveled in 2001, after a nurse married to track worker Gary Avary demanded to know why BNSF was requiring her husband to provide so much blood at his examination by a company physician. When a BNSF manager admitted it was for gene testing, Avary refused to cooperate and was threatened with being fired for insubordination, according to allegations in the EEOC lawsuit.
"What happened to me should not happen to anyone, especially in the United States,'' Avary testified before a House subcommittee in 2001. "It is a direct infringement on our fundamental right to be who we are."
In 2002, BNSF agreed to pay up to $2.2 million to affected workers and refrain from subjecting employees to genetic tests in future medical exams. The railroad did not admit any wrongdoing and denied initiating disciplinary proceedings against any worker who declined to participate. BNSF said its medical director left the company shortly after the incident.
"BNSF acknowledges that while these tests may have been well intentioned, they were not a good idea and the conduct of the tests did not reflect company policy," BNSF said in response to the newspaper's questions. "As soon as this activity was learned about by BNSF's management, the tests were discontinued."
Fair shake or 'kangaroo court'?
When a worker reports a serious injury, BNSF conducts an investigation, interviewing witnesses and gathering physical evidence.
If workers are accused of breaking the rules, they are given a written copy of the charges and allowed to defend themselves at a hearing that functions like a trial, BNSF said in a written statement. Most workers are represented by a union official, and a BNSF manager presides over the hearing. The railroad has the burden of proving its allegations and workers can appeal any decision on discipline to a neutral arbitrator.
BNSF said workers get a fair shake. Plaintiffs' attorneys have described the system as a "kangaroo court.'' They see it as an easy way to build a case against workers, helping the railroad defend itself if workers ever sue over an injury.
Ron Tuma was fired twice after being hit by a locomotive in the middle of the night in 2001 while he was inspecting trains in a Montana rail yard.
Two co-workers told investigators the train arrived without warning. They said the engine crew operated the locomotive without headlights or horn soundings, a violation of federal rules. Tuma's supervisor said under oath that he was instructed by a higher-ranking BNSF official to report the incident as a "near-miss."
BNSF said the incident happened because Tuma violated safety rules, and that he was fired the first time because he had committed his third serious safety violation in 12 months. BNSF said his second firing stemmed from his failure to report his injury for 55 days.
In his lawsuit, Tuma said he tried to report his injury sooner, but he said his supervisor "screamed and hollered" at him when he told the supervisor he had sought medical treatment after the collision.
Tuma said he was unable to properly defend himself at his first disciplinary hearing because the railroad refused to turn over documents relating to the incident, including the investigator's notes, according to his lawsuit. In a deposition, the investigator later said he discarded the notes.
In 2007, a Montana judge ruled Tuma could amend his lawsuit to include allegations that BNSF destroyed evidence, including data from event recorders he needed for his case. Two months later, the parties settled out of court.
BNSF noted that both of Tuma's dismissals were upheld by neutral arbitrators. "BNSF believes Mr. Tuma was given a fair hearing," the company said in a written response to the newspaper's questions about the case.
BNSF was asked to apologize
BNSF said it typically settles the vast majority of worker injury claims without a court fight.
In the last 10 years, BNSF workers won 63 out of 100 cases that ended in a verdict, according to data supplied by the railroad. Workers were awarded a total of $52.5 million, or an average of $834,318 per award.
For George Treperinas, a jury verdict provided vindication after years of frustration.
He was fired in 2001 after injuring his neck while struggling to remove a five-pound battery from a heavy piece of lighting equipment. He didn't file an injury report for nearly a month, until his doctor linked his injury to the workplace incident. The injury ultimately required surgery.
BNSF fired him for allegedly failing to provide a "factual and honest report." Two years later, however, an arbitration board ordered BNSF to reinstate Treperinas with partial back pay.
In his 2004 lawsuit against the railroad, Treperinas alleged he was fired to discourage other workers from filing injury reports.
"BNSF engages in harassment, intimidation and punishment of workers who file injury reports in order to reduce costly government oversight," Treperinas claimed in the suit. He alleged the company also uses intimidation to reduce the amount it pays workers for their injuries.
"There are company policies and federal regulations that would prohibit any actions to discourage employees from reporting accidents or injuries," Shewmake said in an interview. "And we abide by those rules."
In 2006, a Montana jury ordered the railroad to pay $300,000 in punitive damages to Treperinas for acting with malice. He was awarded $30,000 for emotional distress and $58,400 for lost wages, pain and suffering and medical expenses.
The jury also asked the railroad to apologize.
"We the jury respectfully ask that BNSF upper management issue a letter of apology to George and to place a copy of this letter in his personnel file," the jury added in a handwritten note on the front page of the verdict form. "This letter should address the misstatement, misjudgment, and attacks on George's character.''
It's unclear if he ever got the letter.
Under the terms of a confidential settlement the railroad later reached with Treperinas, the worker agreed to join BNSF's request to set aside the verdict. A judge granted the request in 2007. The railroad declined to say whether it ever issued an apology or corrected the federal record regarding his injury.
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