Employee's failure to timely report work-related injury nixes retaliation claim

Most states recognize a claim for workers' compensation retaliation or wrongful discharge (public policy) if an employee is terminated in retaliation for having engaged in protected activity. The 8th Circuit recently upheld the summary judgment (dismissal without a trial) of an employee's retaliation claim under the Federal Railroad Safety Act (FRSA), which provides workers' comp coverage and whistleblower protection for employees of railroads, based on his failure to timely report a work-related injury in violation of the employer's established policies.

Facts

In June 2015, Jeffrey Neylon injured his Achilles tendon while working for BNSF Railroad in Nebraska. He felt a "pop" in the tendon just above his heel while trying to step up onto a train engine and had sharp pain lasting less than a minute. He didn't report the injury to BNSF because he "didn't think anything was wrong."

Thereafter, Neylon "rolled" his ankle a number of times at work, including several times per day. Later that year, he felt "occasional pain" and "some soreness and tightness." By the fall of 2016, the tightness "just wouldn't go away," and he began to have difficulty walking. He had to lie down, ice the ankle, and take ibuprofen each day after work, and he ultimately noticed a "lump" forming where his Achilles was injured.

Neylon first sought medical treatment in November 2016—17 months after the injury. His doctor wrote a note recommending he not return to work until further evaluation by an orthopedic surgeon.