Our firm recently received a copy of a letter written by Mark S. Wimmer, BMWE General Chairman for the Chicago, Milwaukee, St. Paul & Pacific System Federation. With Mr. Wimmer’s permission, we would like to share his letter with you in this edition of Straight Track.
The purpose of Mr. Wimmer’s letter was to advise his members on how to balance protecting their continued employment, their right to medical privacy under state law, and their ability to protect their FELA rights. Although the letter was provided to his members who work for Metra in the Chicago metropolitan area, we believe the issues raised in this letter are important and must be answered on a railroad by railroad basis. As your railroad union approved FELA Designated Legal Counsel, Hoey & Farina encourage you to take the time to read Mr. Wimmer’s insightful letter, but remember that the advice he is giving applies to the Metra contract. If you have any questions as to how these issues apply to your railroad’s contract, please call us at 1-888-425-1212.
Lastly, we’d like to take this opportunity to wish all our readers and their families Happy Holidays and a peaceful and safe New Year!
November 6, 2001
TO ALL BMWE CMSTP&P SYSTEM MEMBERS AT METRA WHEN YOU SNOOZE – YOU LOSE
All of the labor organizations with collective bargaining agreements with Metra, including your union – the BMWE, have made a unified attempt to address a situation confronting every member who suffers an on-duty injury or off-duty injury or illness at Metra. That problem is the role that Metra plays in attempting to interject itself within the doctor-patient relationship.
Medical treatment, for the most part, should solely be an issue between the injured or ill employee (patient) and the treating physician or therapist. You have a right to privacy that should only be disturbed for legitimate reasons.
The purpose of this letter is to discuss your rights and options and the potential effects of exercising your rights. You need to be aware that we have found on some railroads there are usually 1 or 2 unscrupulous managers who attempt to persuade employees to give up some of their rights which are recognized by state law. A summary of those rights follows:
1. You have an absolute right to select the doctor, health care provide, hospital or clinic to provide medical care or treatment. (Editor - This is true for Metra, but under a few railroads’ contracts the bill will not be paid.) In some emergency situations, you may be at the mercy of Metra as to which doctor or hospital provides emergency care. For example: if you are unconscious, Metra will select the health care provider. If you are unable to safely transport yourself to a hospital or obtain transportation, you may also be subjected to the choice of Metra for initial care. In any case of potential serious injury, go to the closest available emergency care and do not get involved in a discussion as far as which facility would be best.
2. You do not have to allow a supervisor or Metra medical manager to be present during your examinations with the doctor or to talk to the doctor afterwards either with you present or not. You should not allow this interference in your doctor-patient relationship and you should advise the doctor that you insist on your right to privacy under state law.
3. Do not sign broad authorizations for release of medical records in favor of Metra. Never sign a blank authorization for release of your medical records. If you elect to allow Metra to obtain a copy of your medical records, the authorization/release form that you sign should be limited to the specific injury in question (listing the date and nature of the injury), it should not include the release of any psychological records (unless the injury in question is psychological), records regarding drug or alcohol treatment, AIDS test results, or any other highly personal and confidential records. You should also print on the authorization/release form that it expires automatically within thirty (30) days from the date you have written above and does not allow any interviews with the treating physician relative to your condition. You have an absolute right to refuse to sign any authorization/release form in favor of Metra. However, Metra may refuse to permit you to come back to work until after it has an opportunity to examine your medical records. In such case, you would be eligible for sickness benefits from the RRB and Provident.
4. You have an absolute right to select the doctors and health care providers who treat you for an injury and follow their recommendations for treatment. However, Metra may refuse to pay for some treatment that was recommended by a private physician. In this case your insurance will pay the standard percentage.
5. Metra has conducted a policy of requiring employees receiving treatment from their own personal doctors to go for second or third opinions from doctors of Metra’s choice. While this practice is highly improper, the best course of action is to report this matter to my office immediately and not be insubordinate. The potential exists for Metra to attempt to discipline an employee for not attending this type of appointment. You should also be aware that one of the reasons that Metra schedules these appointments, is to obtain expert witnesses favorable to Metra in the event that your injury claim is ultimately decided in court.
6. Be aware that Metra does have some rights under the agreement to order periodic physical examinations and return to work physicals to determine the fitness of the employee for continued employment or return to work following an on-duty injury or illness.
7. If you have an on-duty injury and are represented by an experienced FELA counsel, and if your claim has been filed in a court of law, your lawyer can apply to the applicable court to restrict Metra from ordering you for medical examinations other than return to work examinations. When you have a pending court case pertaining to an injury, Metra can still apply to the court for an examination of a doctor of its choice, usually for the purpose of coming into court and providing testimony that minimizes the nature, extent and permanency of the injury.
When in doubt about your rights, obligations, and responsibilities in this area, the best course of action is to consult your union, either your local chairman or this office. The purpose of this letter is to strike a balance between protecting your continued opportunity for employment, your right to medical privacy under state law, and your ability to receive a fair determination of your claim in court if the matter is ultimately decided by a jury.
Mark S. Wimmer
P.S. Keep this letter in your wallet.