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WHAT’S MISSING FROM RAILROAD SAFETY DATA? DEAD WORKERS AND SEVERED
LIMBS.  
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Topher Sanders, Dan Schwartz, Danelle Morton and Gabriel Sandoval
March 13, 2024
ProPublica
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_ Railroad companies go to extreme lengths to portray themselves as
safer than they really are — retaliating against workers who report
defects and silencing those who get injured. _

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On a hot July afternoon in 2018, Gregory West found himself trudging
through the mountains of northern Tennessee on what would be the last
walk of his life.

The engineer and his conductor had been stuck behind a stalled train
that had not budged by the end of their shift, and rail company
officials told them to walk out to a road where a vehicle could meet
them. It would be an hour’s journey up and down steep hills in
88-degree heat. And West, 57, had to lug two large bags of his
belongings the entire way. Just as he reached the rendezvous point, he
collapsed. The Campbell County medical examiner said West had
pneumonia and hypertension, which decreased his oxygen supply before
he died. His sister sued the railroad company, CSX, which settled with
her for an undisclosed amount.

But none of that is reflected in CSX’s worker injury statistics.
ProPublica only found out about it while reviewing lawsuits levied
against the nation’s largest freight carriers in the past 15 years.
West’s was one of at least 130 worker deaths and other injuries that
were alleged to have happened on the job but that railroad companies
never reported to regulators.

Among the others, according to the lawsuits, were a CSX conductor who
suffered a fatal heart attack after doing physical labor on a
subfreezing overnight shift and a contractor who lost three fingers
rigging equipment in a Norfolk Southern rail yard.

The Federal Railroad Administration requires companies to report such
incidents because knowing about them allows officials to spot broader
lapses and hazardous working conditions. The agency’s statistics are
the main way the public can view the businesses’ safety records, for
which they must answer to their employees’ unions and their
shareholders.

But, as ProPublica has previously reported, railroad companies go to
extreme lengths to portray themselves as safer than they really are
— retaliating against workers
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defects
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those who get injured
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Officials with the FRA have said there is not much they can do about
the forces — like the financial implications of appearing to admit
liability and a culture that faults managers when employees get hurt
on their watch — that can drive companies to quash injury reporting.

This tranche of missing injuries and deaths, however, exposes the
clearest failure by regulators to hold companies accountable.

Much of the problem stems from the FRA’s porous reporting policies,
which ProPublica found provide opportunities for companies to hide
work-related injuries and deaths. Officials say they have spent the
past five years working on revisions, which they plan to unveil this
year. They said disclosing the details now would be a breach of the
rulemaking process, but they mentioned that their changes could
address issues raised by ProPublica’s reporting.

ProPublica's findings show the powerful rail companies have long
benefitted from loopholes.

Though agency officials say they are aware of conflicts of interest
that steer railroad companies toward keeping worker injuries quiet,
FRA policies give the businesses broad latitude to determine whether
injuries and even on-the-job deaths are work-related — and, thus,
whether they need to be reported.

One reason companies give for opting out of reporting: Rail company
officials believe a worker is lying, an argument the companies have
made in court, and one juries and judges have sometimes rejected.

The agency also doesn’t require railroad companies to report certain
injuries and deaths of contractors who are crushed or maimed by
trains. Those incidents are supposed to be reported to a different
agency by the contractor’s employer, which doesn’t tie them to the
railroad’s record or allow them to be easily studied for possible
safety reforms.

Empowered to levy fines up to $10,000 against companies that willfully
fail to report injuries, and even to disqualify managers who do so,
FRA officials say they will not be investigating the scores of
unreported cases ProPublica provided them in a database — cases they
confirmed were nowhere to be found in their records.

The bulk of the cases ProPublica found, including the deaths, happened
more than five years ago. The FRA says it does not have the power to
punish railroads for unreported injuries after that much time or even
edit the safety record to reflect them. It attributes that to a law
that applies to all federal regulators.

And though 11 of the alleged injuries ProPublica raised are newer —
in two unreported cases, workers said they were fired after being hurt
— officials said those won’t be reviewed either. They view
lawsuits, which ProPublica used to find the cases, as “unreliable”
sources of information.

The FRA is satisfied with its standard process for unearthing hidden
injuries, an audit done of each rail company every two years. As part
of these four-month deep dives, regulators say they pore through
internal company documents to find injuries that were deemed
unreportable, then review medical records and interview employees to
determine whether the injury should, in fact, have been reported.

Officials didn’t have an explanation for how audits missed the two
deaths ProPublica found and said they should have been submitted to
the FRA based on the information reporters provided. “Despite our
best efforts, regrettably there are cases of failures to report or to
accurately capture all covered events,” the agency said in a
statement, adding that “any gaps or voids in reporting are of
concern and will prompt us to redouble our efforts,” that it expects
companies to “faithfully abide” by the requirements and that it
strives to continuously improve its data collection and validation.

Each of the railroads denied that they failed to report injuries
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largely claiming that the cases either didn’t meet the reporting
guidelines, as CSX argued about West’s death, or that the company
didn’t believe the worker’s injury happened at work. “Those
cases where CSX determined the events were not reportable are fully
supported by the facts and evidence gathered by CSX through its
thorough investigations of each incident,” the company said in a
statement, adding that it was proud of its “best in class”
reporting process and that it complies with FRA’s audits.

The Association of American Railroads, the industry’s lobbying arm,
denied that underreporting is widespread and called ProPublica’s
findings isolated incidents. The association pointed to the most
recent injury statistics
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the ones ProPublica has found are incomplete — to show the rails are
the safest they have ever been.

But union leader Jared Cassity said ProPublica’s findings are
further evidence that companies’ safety records do not capture the
full range of dangers allowed to persist on the rails. “The system
is rigged, especially when it comes to injuries,” said Cassity, the
alternate national legislative director for the International
Association of Sheet Metal, Air, Rail and Transportation Workers, or
SMART.

“You see what they want you to see,” he said.

To find unreported injuries and deaths, ProPublica reviewed more than
5,000 federal lawsuits levied against the nation’s six largest
freight railroad companies, the so-called Class 1s, from 2009 to 2022.
For each complaint that mentioned a worker injury or death and had a
detailed enough description of what happened, ProPublica consulted a
300-page FRA guidebook to determine which cases appeared to fit
reporting requirements. Then, journalists combed through the
agency’s online railroad injury database to see whether the
incidents had been reported and, if not, asked the agency to double
check its files.

Clear patterns emerged in cases that weren’t reported.

Unlike trauma deaths or amputations, the vast majority of unreported
injuries were open to easier arguments that they were not work-related
— sprained ankles, torn rotator cuffs, tweaked backs, strained
tendons. One man said he had been in a port-a-potty when a track hoe
struck it; another said he was hurt when the railroad’s transport
vehicle crashed. One said he slipped along the ballast, the gravel
that surrounds train tracks; another said he jumped from a train to
avoid a collision.

Broadly speaking, railroads must tell the government about any
on-the-job injury that requires medical care beyond diagnostic
procedures like X-rays, that requires an employee to miss a day of
work, or that lands an employee on light duty.

But rail officials have long found ways to argue that these
less-visible soft-tissue injuries, unlike gaping wounds, could have
happened off duty or for reasons not related to the work employees
were doing.

“The guide gives us the right to make our best guess on a case, and
then [the FRA has] to prove us otherwise,” said Tuesdi Sweatt,
CSX’s then-senior manager of accident reporting and compliance, in a
legal deposition in 2018.

BNSF engineer Scotty Bragg was operating a train near Hardy, Arkansas,
on Nov. 17, 2021, when he said he encountered rough track and
“experienced significant jostling” in a cab that didn’t have
seatbelts. He said he injured his neck, back and spine, requiring
surgery. A company official said in a deposition that a review of
locomotive footage led officials to decide that Bragg hadn’t
encountered rough track and wasn’t injured at work.

It was a familiar argument used against hurt workers. ProPublica has
reported on cases in which companies presented video evidence that
did not hold up to scrutiny
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court, failing to convince juries that an employee was wrong or lying.
At least two of these cases resulted in multimillion-dollar payouts to
the workers. Despite the company’s denial of Bragg’s injuries, it
did agree to settle his case. BNSF’s response did not address any of
the unreported cases ProPublica sent the company in a spreadsheet
along with an interview request.In a statement, BNSF said it takes its
reporting obligations seriously and touted its safety record, which
over the last decade, “produced the lowest number of injuries in our
railroad’s history.”

The FRA allows companies to decide whether an injury was job-related
or not, even when an employee dies at work.

In the case of West, the engineer who died in the mountains, the
company said that because he suffered from a “personal condition,”
his death didn’t have to be reported. In court, the company said
West “suffered from multiple maladies and physical conditions, and
as a result, it was not foreseeable” that a “one-half mile walk
would cause or contribute to his death.”

The FRA said that even if companies don’t file reports, they must
phone in all on-the-job deaths to the U.S. Coast Guard’s National
Response Center, no matter the cause. But it is unclear what happens
once the agency is contacted; these calls don’t become a part of an
official injury record and it’s unclear what trend analysis, if any,
is done with them.

CSX conductor Danny Byrom, 37, was working an overnight shift in an
Illinois yard on Jan. 27, 2019, while the temperature was around 20
degrees. He bent over to remove a heavy piece of equipment. Afterward,
he collapsed and died of cardiac arrest.

When asked about the case, FRA officials said it should have been
reported because there was “probably a causal connection” between
his work-related exertion and his death. CSX told ProPublica the
company believes Byrom’s death wasn’t reportable because he
suffered from a “personal condition.” His family’s lawsuit
against the company is ongoing.

Agency officials said nontrauma deaths that appear to be natural
aren’t likely to immediately spur a full investigation.

The omissions of these kinds of deaths from companies’ safety
records — and the lack of any kind of investigation by the FRA —
troubles Cassity, the union leader, because the deaths appeared to be
related to work tasks. “You’re being forced to do it, and you die
in the performance of it. … The fact they don’t consider that is
… it’s unconscionable.”

The FRA should investigate all on-the-job deaths, he said, and
determine itself whether they were work-related.

Such reporting would help the agency identify and eliminate hazards
for workers, said David Michaels, former head of the Occupational
Safety and Health Administration, which oversees injury and death
investigations in most industries outside the rails.

“You certainly want events that occur at work to be reported for the
agency to consider whether or not they deserve further investigation,
and that will include heart attacks and asthma,” said Michaels, who
is now a professor at George Washington University. “And by
aggregating information from these investigations, it allows
researchers to go in and use the data to better understand what’s
going on in these workplaces.”

Had West and Byrom worked at a bank, or a restaurant, or some other
American workplace, OSHA would have considered their deaths
reportable, Michaels said.

But ProPublica found the plight of workers who are injured by trains
— but who are not staff members of rail companies — may be even
worse.

Kenneth Ivy was working for Riceland Foods at the company’s
Jonesboro, Arkansas, rail yard in November 2013 when he said he
noticed a Union Pacific freight car had been placed on a slope without
its brakes applied. He said he attempted to apply the brakes and they
wouldn’t work. The freight car rolled over Ivy, crushing part of his
left arm and both his legs, which had to be amputated.

Because Ivy didn’t work for the railroad and the accident didn’t
happen on Union Pacific land, government policies dictated that Union
Pacific didn’t have to report it to the FRA. Instead, Riceland Foods
reported it to OSHA. So now Union Pacific’s safety record doesn’t
reflect the fact that its freight car grievously injured someone, nor
did the regulator with expertise in rail safety investigate whether
the brakes were faulty, nor could the agency use the incident to track
similar injuries or learn whether there are any systemic hazards.

Union Pacific, which denied in court that the brakes were defective,
said the worker tripped when he attempted to apply them to the moving
freight car. The company noted to ProPublica that it was Riceland
Foods that moved the rail car and Riceland Foods that was responsible
for the switch operations. While that company settled with the injured
worker, so did Union Pacific.

Though rail companies must report when contractors are hurt on their
land, ProPublica found they have dodged that reporting requirement,
too.

Contractor James Wheeler was rigging down a boom of heavy equipment in
Norfolk Southern’s rail yard when a fellow contractor’s mistake
resulted in Wheeler having three fingers on his right hand amputated.
Norfolk never reported it, despite the fact that the incident happened
on its land. The company did not comment on the case, but said it
reviewed all of the unreported cases found by ProPublica and wound up
reporting one of them to the FRA, “which was based on information
added to a case months after the initial report was made internally.
That update was made immediately.”

FRA officials said they believed the incident should have been
reported, but because the injury happened in 2016, they told
ProPublica that nothing further had to be done. The FRA said the
five-year limit was a reasonable time frame.

The agency says it focuses its efforts on newer injuries and that its
audits are rigorous and successful. Last year, the process caught
Union Pacific managers hiding nearly 100 injuries that should have
been reported.

“UP documentation clearly showed these incidents were reportable
injuries,” the agency said. The company disciplined those involved,
the FRA said, but the agency’s investigation is still open because a
key witness in the case has filed an OSHA complaint against Union
Pacific and won’t speak to the FRA until given clearance by his
attorney. An agency spokesperson said the FRA expects to issue
violations but as of now no fines have been levied. “Allegations
that managers are incentivized to hide or ignore injured employees are
false,” UP told ProPublica in a statement. The company also told
ProPublica that its own audit process had found the “incorrectly
classified” injuries and that the company had corrected them.

Agency officials said that most of the time, when they catch
unreported injuries, they simply ask officials to reconcile the
matter. The agency doesn’t separately track fines it gives for
injury reporting violations, instead lumping together all the fines it
levies against railroads for all kinds of reporting failures.
ProPublica added up these kinds of fines levied against all Class 1
companies in 2022, the most recent year of data available. For the
companies, which had $108 billion in combined revenue that year, the
penalties added up to $30,011.

The agency told ProPublica it knows the penalties are too paltry to
prevent the companies or their officials from attempting to hide
injuries. Only Congress could increase the fines, a spokesperson said.
“The proposed Railway Safety Act
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allow for a substantial increase in the maximum civil penalty
amount,” the spokesperson said. That bill, which received bipartisan
support when it was introduced on the heels of last year’s
catastrophic derailment that unleashed hazardous chemicals on East
Palestine, Ohio, has since stalled in Congress
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Cassity said the FRA’s audit process allows railroads too much
notice before the government arrives on site to check records. “It
just just doesn’t go far enough,” he said, adding that he believes
companies purposefully don’t fill out certain paperwork so they can
hide injuries from the FRA and that there is little the agency can do
to combat the practice.

He suggested that one way to get the fullest accounting of injuries
would be for the FRA to devise a system where the reports come
directly from employees. “Right now, the only way to get the facts
is through a carrier that, quite frankly, is not playing fairly,” he
said. “And so you've got to get it from the source.”

Such a system would require significant procedural and operational
changes, FRA officials said, and there is no guarantee all employees
would abide by them.

But agency officials said they can entertain these and other big
changes during the upcoming public comment period for their proposed
rules, which have not been updated since 2010. During this period,
railroad companies and labor groups are expected to provide their
perspectives and could mount legal efforts to change the proposals.
According to the agency, any new rules will receive final approval
from its chief safety officer.

_Topher Sanders is a reporter at ProPublica covering railroad safety.
Previously he covered race, inequality and the justice system. _

_Dan Schwartz is an independent investigative reporter covering
railroad safety for ProPublica._

_Danelle Morton is an independent investigative reporter covering
railroad safety for ProPublica._

_Gabriel Sandoval was a research reporter with ProPublica._

_Research was contributed by Jeff Kao
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Carolyn Edds and Miriam Pensack._

_ProPublica is a nonprofit newsroom that produces nonpartisan,
evidence-based journalism to expose injustice, corruption and
wrongdoing. We were founded in 2008 to fill a growing hole in
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* railroad safety
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* CSX Transportation
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* Federal Railroad Administration
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* Union Pacific
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* BNSF
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