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Railroad worker’s report of injury was dishonest: Court


A worker failed to show he acted in good faith when he reported a workplace injury and is not entitled to workers compensation, a district court held Wednesday.

In Lemon v. Norfolk Southern Railway Co., a judge in the U.S. District Court for the Northern District of Ohio, Western Division in Toledo, Ohio, dismissed a worker’s charges that he was fired for reporting a workplace injury.

Daniel Lemon worked for Norfolk, Virginia-based Norfolk Southern Railway Co. for 15 years, with his last position as yardmaster at the company’s Toledo terminal. On Dec. 16, 2015, Mr. Lemon said he hurt his neck at work and that the pain worsened through the day. A co-worker drove him to a hospital, where he was diagnosed with a pinched nerve.

One co-worker said Mr. Lemon told him he tweaked his neck walking downstairs at home; another said he asked him for Advil early in the day and that he tweaked his neck looking out a window. Notes from the physician visit indicate he hurt his neck walking down stairs at work.  

After he left the hospital, he reported the injury to his supervisor, explaining he had slipped on stairs at work and tweaked his neck. He also told his supervisor he had not told anyone else at work about the injury.

When the supervisor investigated the injury, he learned Mr. Lemon had told co-workers about the injury and told at least two he had hurt himself at home. The company issued him a disciplinary violation for lying about the injury and telling inconsistent stories about its cause, and he was ultimately terminated for dishonesty.

He filed a complaint with the Occupational Safety and Health Administration, alleging retaliation in violation of the Federal Railroad Safety Act. After OSHA dismissed his complaint, he filed a complaint in district court.

The district court judge held that Norfolk Southern Railway was entitled to summary judgment and dismissed Mr. Lemon’s complaint because he failed to qualify as engaging in a protected activity.

Although Mr. Lemon presented sufficient evidence that could lead a jury to believe his injury was work related, the judge found he did not act in good faith when he reported the injury. Because Mr. Lemon told his supervisor when he reported the injury he had not talked to anyone else about the injury, the judge declared his injury report was dishonest.

“[L]ying about potential witnesses to a supervisor threatens his or her ability to find out what happened,” said the judge. “It is a far graver act than a mere honest misstatement or meaningless request not to inform others.”

The attorney for Mr. Lemon, E.J. Leizerman, said that a nearly identical case against the railroad went before a different judge at the same district court last month who ruled the opposite way. The case was Bostek v. Norfolk Southern Railway.

“I expect that both sides will probably be appealing those cases together to the 6th Circuit (Court of Appeals),” he said. 

The lead attorney representing Norfolk Southern in the case did not immediately respond to a request for comment.






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