Alma man blows whistle
By GINGER JENSEN
Hub Regional Correspondent

ALMA — Gary and Janice Avary of Alma say all they have ever wanted was to do well on the job, enjoy their family and work on their house. But a recent event threw their day-to-day routine out of sync, and they now are at the center of a situation that could abolish genetic testing by employers across the country.Gary is without work while he and Janice await the outcome of two federal lawsuits.

The issue was raised after Gary and a fellow employee of Burlington Northern Santa Fe Corp. had been diagnosed with carpal tunnel syndrome. Their employer scheduled for them additional medical tests that involved blood sampling, allegedly to be put through genetic testing without the employees' knowledge.

A railroad official said today examining physicians were supposed to tell employees they were being genetically tested and that BNSF officials are dismayed by the reaction to their actions.
"We wanted to know if it was work causing the problem and then fix it. If it wasn't work related, the injury might be genetic," said Dick Russack, BNSF's vice president of corporate relations.

On Feb. 9, the federal Equal Employment Opportunity Commission filed suit in U.S. District Court in Sioux City, Iowa, to stop employers from doing genetic testing. It was the first lawsuit of its kind filed by a federal agency.

The EEOC's suit was the result of Janice's inquiries into a medical exam of Gary's friend, David Escher of McCook.

Meanwhile, the Brotherhood of Maintenance of Way railroad employees union filed a similar suit in the same court on the same day. That lawsuit included Burlington Northern Santa Fe Corp., headquartered in Fort Worth, Texas, and Athena Diagnostics, a commercial genetic-testing laboratory in Worcester, Mass., whose parent company is Elan Corp.
The lawsuit has captured national attention. The Avarys have been contacted by "60 Minutes," "20/20," CNN, ABC and NBC. They also have talked with major U.S. newspapers.

Carpal tunnel surgery

For 27 years, Gary has been a track maintenance man with BNSF. The high-tech equipment he uses creates constant vibration on hands, wrists and arms, he said.

"It used to be there were enough workers that we could trade off and get a rest from the vibration," Gary said. "With fewer workers, we just keep working, and the equipment keeps vibrating."
Eventually the end of his fingers became so numb that he couldn't pick up anything. He was diagnosed with carpal tunnel syndrome and had successful surgery on Sept. 28. Gary's insurance through Burlington Northern agreed to pay for the surgery, Gary said.

However on Oct. 24, Gary received a certified letter from the railroad requesting all medical records of his surgery and medical office visits to "further evaluate the situation and to determine if the workplace was responsible for the injury." Gary faxed the requested information.

On Dec. 7, Gary received another certified letter from BNSF. An appointment had been made by the railroad's chief medical officer, Dr. Michael Jarrard in Fort Worth, Texas, for Gary to have tests done in Lincoln Jan. 5. This appointment was mandatory, Gary said.

The form attached to the letter not only had Gary's Social Security number, but also asked questions about family medical history of carpal tunnel syndrome; diabetes or thyroid disease; numbness or weakness in arms or legs; stiffness, swelling or pain in joints; and arthritis.

The letter also stated that the "laboratory tests may include X-rays and a nerve condition test."
"I didn't really think the family questions were any of their business," Gary said, "but it was mandatory, so I intended to keep the appointment."

Also receiving the letter were Escher, John B. Wiebelhaus of Fordyce and Tim Nordloeff of North Dakota. Escher's appointment in Lincoln was earlier than Gary's. Escher told Gary the doctor's office drew seven vials of blood.

Questioning the tests

Janice, who has been a registered nurse at Harlan County Hospital for more than six years, became suspicious. She wondered what BNSF would want with that much blood, and began to ask questions.

Janice said she spoke with Jarrard. She said he told her it was "no big deal. We are just going to do a little genetics test." Gary then decided not to go to his own appointment.

Janice called Minneapolis attorney Russell Ingebritson, who is the Federal Employee Liability Act attorney for the union. FELA was passed in 1890 to protect railroad workers' rights because they are not covered by state worker's compensation. Ingebritson told her it was illegal for Burlington Northern to even be considering genetics tests.

"All the time I was making phone calls, Gary was on the job working and didn't know what I was doing," Janice said. "I decided I should back off until we could talk about it."

But on Jan. 12, Gary received another certified letter from the railroad, setting Jan. 22 as the date he was to appear in McCook to explain to BNSF investigators why he didn't keep his medical appointment in Lincoln. He was subject to an investigation by the railroad, he said.

That appearance has been put on hold. Both the union and the EEOC filed for an injunction against BNSF.

The EEOC filed the federal lawsuit against BNSF; questions are being asked of Elan Corp.; and San Diego attorney Harry Zanville, who specializes in legislative law, has joined Ingebritson and four other attorneys on the case. Gary said it was Ingebritson who alerted the EEOC.

Russack told the Hub this morning from BNSF headquarters in Fort Worth, Texas, that employees selected for genetic testing were supposed to be told by the examining physician that it was a genetics testing examination.

"I have no proof they were actually told by the physician," Russack said, "but we have no reason to believe they were not told the examination was for genetics testing."

He further said the testing was started in March 2000 to make certain claims filed for carpal tunnel syndrome were based on a work injury.

When questioned about what was done with the seven vials of blood drawn during the examination, Russack said two vials were sent to the Athena lab in Massachusetts for genetics testing, and the other five vials were used for other medical issues on the exam.

Concerning the EEOC lawsuit, Russack said Burlington Northern was not just "surprised but disappointed EEOC didn't follow their usual policy of informing us in advance."

Lives changed

"I had absolutely no idea what my phone calls were going to lead to," Janice said. "We are just normal people who want to do a good job in our work and enjoy our family. We had no idea we were going to be writing history for so many people.

"This is going to lead to the protection of American workers. They have the right to work without having to watch their back and to be safe in their jobs."

Although their lives have been turned upside down, Gary said they have no regrets. "I feel sorry for the men who already gave blood. They have no idea what the railroad is going to do with it.
"I have always watched out for the other men working around me, but I never thought we would be put in this position."