FELA

FELA: ITS HISTORY

The Federal Employers’ Liability Act was passed in the early 1900s to protect the rights of employees injured in the course of railroad employment, an occupation which Congress felt was particularly hazardous and in need of special protection and regulation. Additions to the law over the past 70 years as well as court interpretations have resulted in a law which provides protection to injured employees under certain conditions.

FELA AND YOUR RIGHTS

The FELA is not an absolute liability law and does not apply like Workers’ Compensation. The fact that you were injured while working for the railroad does not guarantee recovery, either through settlement or through the courts. You must first prove that the railroad was negligent and that its negligence played some part in causing your injury. However, if you can prove this, you are then entitled to compensation.

NECESSARY PROOF

Before you are entitled to collect any money, you must prove the following:

1. That at the time of your injury, you were engaged in activity that furthered the carrier’s interstate business. Basically, this includes any activity by a railroad employee during the course of his or her duties. An employee deadheading or traveling on behalf of the railroad is also covered by the FELA.

2. That the injury for which you claim compensation under the FELA is the direct result of an accident that took place while you were working for the railroad.

3. That your injury is due to some clear negligence on the part of the carrier in failing to provide its employees with safe tools and equipment.

COMPARATIVE NEGLIGENCE

To counter your claim, the railroad may seek to demonstrate that you contributed in some degree to your own injury. This is known as comparative negligence. If the carrier is able to show comparative negligence, a jury verdict will be reduced by the percentage of fault the jury attributes to the injured worker’s own negligence. For example, if an injured railroad employee is awarded $100,000.00 for injuries sustained, but the jury found that the employee was 10 percent negligent, the award would be reduced by $10,000.00 and the worker would receive $90,000.00.

ASSUMPTION OF RISK

During the first 30 years of the FELA most cases against the railroad by injured employees were lost due to a common law defense called ASSUMPTION OF RISK. That defense allowed the railroads to argue that even though they were negligent, the employee knew of the unsafe conditions and chose to work anyway. The employee, therefore, had assumed the risk of his or her employment and was, therefore, barred from recovery.

Section 54 was passed in 1939. It specifically outlawed the defense of ASSUMPTION OF RISK. The railroad is no longer allowed to argue to a jury that the employee should be denied recovery or to have his recovery diminished simply because he or she was hurt doing an obviously difficult or dangerous job. The railroad often tries to disguise Assumption of Risk as Comparative Negligence.

This is an extremely important and subtle distinction under the law. It is an example of why injured railroad employees should only hire attorneys who devote all their time and energy to litigation under the FELA. We have successfully litigated this distinction and barred railroads from arguing this type of defense.

BOILER INSPECTION ACT & SAFETY APPLIANCE ACT

Two special provisions of FELA deal with the safety of engines and of railroad cars. Formerly entitled the Boiler Inspection and Safety Appliance Acts, these acts have been recodified as part of the Federal Railroad Safety Authorization Act of 1994. If an injured worker can show that faulty equipment in use on the railroad’s line caused the injury, the railroad will be absolutely liable for that injury. In that situation, a jury is now allowed to consider any comparative negligence on the part of the employee. Thus, any award granted by a jury cannot be reduced.

An example of a Safety Appliance Violation is a defective handbrake or coupler. Examples of Boiler Inspection Violations are ice or oil accumulation on engines, defective seats or other defective parts of an engine that make a locomotive unsafe for its intended use.

WHAT TO DO IF YOU ARE INJURED

1. GET MEDICAL CARE

You are entitled to your choice of medical attention. Therefore, you should seek the same type of medical treatment that you would under any other circumstances.

2. TELL YOUR DOCTOR ABOUT YOUR INSURANCE COVERAGE

Your doctor should know that he is not dealing with the Workers’ Compensation System. Doctors are often reluctant to treat industrial accidents covered by Workers’ Compensation because of low reimbursements. Be sure your doctor understands that he or she is not bound by any schedule of fees and should treat you strictly according to your medical needs. You should also tell your doctor that since all your bills are paid through your own insurance policy, the doctor does not need the permission of the Railroad Claim Office for any special procedures or therapy that may be prescribed for you.

3. CONTACT YOUR UNION REPRESENTATIVE

Contact your Union Representative as soon as possible. He or she will protect your rights and help you get the medical care and sickness benefits to which are you are entitled.

4. FILL OUT AN ACCIDENT REPORT

You must fill out an accident report with the company as soon as possible. Have your union representative assist you, since the statements you make on the report can be used against you at a later date.

5. DO NOT GIVE A STATEMENT TO THE COMPANY

You are not required, either by law or contract, to give a sworn statement to anyone from the company.

The simplest advice is, “never give a statement.” If you should choose to make a statement, however, it should only be done in the presence of your union representative or your attorney. Once tape recorded or signed, a statement can be used against you and will certainly be brought up during the course of negotiations toward settlement.

6. APPLY FOR SICKNESS BENEFITS

You may be entitled to sickness benefits from the Railroad Retirement Board (RRB). Ask your union representative for the forms you need and have them signed by your doctor.

NOTE: Any monies received from the Railroad Retirement Board for sickness benefits related to an injury will later be deducted by the railroad from any settlement or jury award.

Certain crafts (Maintenance of Way, Carmen, etc.) Are entitled to supplemental benefits in addition to RRB benefits. These supplemental benefits are additional money payments

which an injured employee receives along with RRB benefits. Each of these benefits (RRB benefits and supplemental) will be deducted from any future settlement or jury verdict. However, you are required to repay these benefits only if you receive a settlement. Therefore, in most cases, an injured worker should apply for and receive these supplemental benefits.

7. KEEP RECORDS

By keeping complete and accurate records, you can often increase the amount of your settlement. You should keep track of the following:

a) any out-of-pocket expenses incurred as the result of an injury

b) dates and times of medical treatment or hospitalization

c) names of witnesses

d) details of ongoing disability, pain and suffering and change in lifestyle that has resulted from the injury

e) negligence of the railroad

f) loss of earnings

SETTLING YOUR CASE

Most cases are settled outside of court and without a trial, through negotiations with the Claim Department. If you feel that the railroad’s offer is inadequate, you have the right to take your case to court. Your claim may be litigated in either Federal Court or a State Court in your own state.

It is your right to hire a lawyer to represent you. If you choose to hire a lawyer, the railroad cannot harass or discipline you or your co-workers who have been witnesses tot he accident for doing so.

DO YOU NEED A LAWYER?

HOW TO DECIDE

If your injury has been relatively minor, with little or no time lost from work, you are probably best served by seeing a doctor and dealing with the railroad Claim Agent. However, you should allow enough time to pass to reach maximum medical improvement and ensure your injuries are, in fact, minor before settling your claim. If your injury is serious, causing you continuing pain, disfigurement or disability, and leaving you unable to work for over 30 days, you would benefit from expert legal advise.

You should understand that the moment you are seriously injured on the job, your interests and the interests of your employer are not the same. The basic job of the railroad Claim Department is to save the railroad money, and that may mean disputing your claim.

An injury case is not a simple straightforward matter. Many factors affect the settlement, such as the amount of lost time, the nature and extent of injuries, the negligence of the railroad vs. the comparative negligence of the employee. An attorney experienced in the handling of FELA cases can guide you in evaluating your claim. It is certain that without the thread of a lawsuit, the railroad will be reluctant to pay the full value of any significant claim.

As a rule of thumb, if you want to operant an engine, you get an engineer; if you want someone to switch cars, you get a conductor; likewise, when you want someone to protect your rights in a personal injury case, you hire an experienced FELA attorney.

DiNardo, Metschl & Dwyer has a long history of successfully handing FELA cases. If you should become injured, our thorough understanding of railroad working conditions and our extensive experience with the FELA will enable us to assist you through every stage of the claim process. With our insight, understanding of railroad operations, safety rules and contract rights, we are uniquely positioned to serve your needs and see your claim through to a successful resolution.

RECEIVING WHAT THE LAW PROVIDES

The bottom line in any FELA claim is the amount of money that the case is worth. No one can restore to the injured worker his or her complete health. The law only provides for a money judgment or settlement. Obviously if a settlement cannot be reached, then a jury will determine the value of the case after hearing all the evidence. But trying to reach a fair and equitable settlement is very difficult for an injured person with no experience in these matters. Without the advice of an experienced, competent and proven FELA attorney, you may undervalue your claim and not receive what you deserve.

WAGE ADVANCEMENTS/CONTINUATION/TRANSITIONAL WORK ASSIGNMENTS

The railroads often had programs to assist an injured employee maintain some flow of income following an injury while the worker was disabled from his or her usual craft. However, several railroads have discontinued these programs, also known as “TWC” (temporary wage continuation) or TWA (Transitional work assignments/light duty). Offers of wage continuation and light duty assignments, therefore, must be viewed with some skepticism, and it is important for you to have your Union Representative and/or legal representative investigate any such offers before you agree to participate.

Even if the railroad offers wage continuation or advances, there is a downside. First of all, it is typically a lien against any recovery under the FELA. It is not a gift from the railroad but will be used to diminish any settlement or it will be deducted from any verdict you receive.

Secondly, some railroads require that you sign a contract with the railroad in which you agree to abide by their recommendation for doctors and medical treatment. Anyone who has dealt with any of the freight railroads and their medical departments is aware that their common goal is to get a person back to work and not to provide the best medical care.

Lastly, you must give a complete statement to the Claim Department at a time when you are not receiving advice or representation from counsel.

The light duty program is typically designed for an injured employee who has been cleared for light duty work but not able to return to full duty. If you are on wage continuation, it is almost guaranteed that the railroad doctors will designate you ready for light duty long before doctors of your own choosing would have done so.

In any event, deciding how to respond to their demand for your return to light duty takes careful though and advice. Most jurors would not understand why it is that an employee would refuse the employer’s request to come back to the property and do little, if any, physical work and still be paid. It is difficult to explain to a jury of non-railroad people the harassment, manipulation and abuse that a light duty person often faces when on the property.

In addition, most railroad doctors will make it look like you are malingering or attempting to appear more injured than you actually are if you resist in any way the light duty program. It is precisely at this point in time that you must seek the advice of your local chairman and an attorney so that your decision will be based on all of the proper advice under the circumstances. There is no”golden rule” as to how to respond. Each situation is unique and requires careful thought.

LONG ISLAND RAILROAD EMPLOYEES

The light duty program on the Long Island Railroad is very difficult to deal with in the context of FELA. Because of the unique nature of the Long Island Railroad, they are able to place people in jobs within their craft but not require them to do any physical work. Juries today are very skeptical of any employee who seeks compensation under FELA and has also refused to cooperate with a light duty assignment. Your doctors must be advised of the exact situation that you are being asked to agree to and your union is essential in advising you whether or not to accept light duty.

We have successfully litigated cased against the Long Island Railroad and obtained substantial verdicts even when the employee has been steadily employed in a light duty program. Bear in mind that when you are on light duty, you cannot work overtime, therefore you must keep precise records of work you would have taken if you had been healthy, so that we can argue your economic loss based on your loss of overtime.

In addition, the railroad will often force you to use your own sick time once you are on the light duty program. Any day that comes out of your sick bank should be added to your lost time as part of your FELA claim as well.

HEALTH MANAGEMENT GROUPS/DISABILITY AND MEDICAL DEPARTMENTS

The railroad often utilizes its internal medical department or a disability support department to monitor your medical treatment while you are off injured. They will call requesting information about what doctors you are seeing and when your appointments are. They will also communicate, on their own and usually in writing, with your medical providers. These individuals are known to be extremely persistent in attempting to influence your medical treatment and are often interested in rushing an injured employee back to work.

These departments often tape record all conversations that they have with you, the injured employee. If the injured employee's case proceeds to trial, any such recording can be used against them in a court of law. The fact that the railroad's personnel even makes these tapes and that these recordings are admissible in a court of law should make any injured employee proceed very cautiously.

It has been our experience that these medical personnel attempt to befriend the injured employee and thereafter engage the worker in more casual conversation about his or her medical condition. It would not be surprising to see, in a court room, a doctor's notes that reflect a certain level of pain and discomfort contradicted by a recorded conversation between the employee and the railroad's nurses or medical management personnel. The conflict will likely not be a result of some misrepresentation as to your medical condition reported to your physician, but may be as a result of an intentional casual conversation to elicit from the injured employee that he or she may be feeling better than they truly are.

In our opinion, no matter how well the program is disguised under the heading of medical treatment, it is designed for the benefit of the railroad and not for the betterment of the employee.

The important thing to keep in mind when discussing your condition with these people is that everything you say is being recorded and can be used by the railroad to adversely affect your ease at a later time.

CHECKLIST OF THINGS TO REMEMBER

1. Contact your union representative.

2. Be careful when describing your accident to the claim agent or trainmaster. Clearly indicate what the railroad did wrong.

3. Be sure to tell the Emergency Room personnel the proper description of your accident and all the injuries or problems you are feeling.

4. Keep records of witnesses, people you spoke to, doctor appointments, prescriptions, out-of-pocket expenses, etc.

5. Always remember the railroad loves to do surveillance.

6. Keep your medical treatment simple by staying with good, competent, friendly physicians. Do not let the railroad send you to a variety of different doctors. It looks like you are chasing after a physician to a jury that doesn't understand the railroad's system.

7. Your goal should always be to get the best medical treatment and rehabilitation possible.

REHABILITATION/MITIGATION OF DAMAGES

Under the law, an injured employee has a duty to mitigate the damages resulting from the injury. This means that an injured employee must take all reasonable steps to minimize his or her physical and economic losses following a job injury. An injured worker, therefore, should treat with his or her physicians and follow the physicians' recommendations and prescribed treatment in an effort to heal from the injury and return to usual daily activities as soon as is practical. An injured worker must also attempt to minimize the economic loss resulting from the injury by returning to work (if appropriate) when released for duty by the treating physician. If an injured worker cannot return to his or her former craft with the railroad, then the worker must look to other areas of employment, either within or outside the railroad, which are possible for the injured worker, taking into consideration the worker's educational background, work experience, and physical or other health restrictions.

In recent years, the railroads have increased their efforts at rehabilitating injured workers. Nearly all of the major rail carriers have vocational rehabilitation physicians and therapists working directly for the railroad. Other railroads have hired outside rehabilitation experts. These specialists work with the injured employee, his or her doctors and the railroad. The railroads have even gone so far as to offer various jobs or rehabilitation to injured employees.

You must be cautious in working with the railroad following a serious on-the-job injury since the railroad also has an interest in minimizing the damages it may have to pay an injured worker. You have a right to expect that any vocational rehabilitation program - a program which may help you find another occupation of which may provide retraining - will work for your best interests, and not necessarily the best interests of the company.

Therefore, while a return to work or vocational rehabilitation services are encouraged, they must be undertaken carefully so that re-injury or further damage do not result. It is important that your treating physicians, your family and you are all consulted regarding such issues so that a proper course of action may be taken for your particular situation.

Rehabilitation issues are unique to each case and so complicated that it is impossible to give a general statement about how to respond to these various programs. If you have a long-standing injury or disability which may prevent you from returning to your normal job in the rail industry, you should consult with a law firm experienced in handling FELA claims. Only an experienced FELA attorney can help you weigh your own interests against the railroad's offer of alternative employment or rehabilitation.

If you will be out of work more than 30 days, you should consult with an attorney before the railroad has a chance to confer with the physicians treating you. You have a right to obtain medical treatment of your own choice and to have that treatment be a private matter between you and your doctor.

ALCOHOL AND DRUG REGULATIONS IN THE RAILROAD INDUSTRY

1. COVERAGE

The rule covers all hours of service employees. It excludes supervisory personnel and all employees on the short line railroads with fewer than 15 employees.

2. POST-ACCIDENT TESTING

a) Urine testing is mandatory after:

i) any major train accident resulting in (1) a fatality; (2) the release of hazardous materials causing injury or requiring evacuation; or (3) damages to property exceeding $500,000.

ii) a collision which causes an injury or damage to property exceeding $50,000.

iii) passenger train accident.

iv) an employee fatality in a train incident.

EXCEPTIONS

i) There will be no mandatory testing after accidents occurring at rail/highway grade crossings. (However, the railroad could require testing if it has reasonable cause to suspect impairment.)

ii) No testing is required w here there is a collision or employee fatality and the employee's involvement can be positively excluded.

b) Any employee who refuses to submit to the testing shall be disqualified from service for a period of nine months. The railroad can impose further sanctions.

c) If the employee is found to have an alcohol blood content of more than .04%, he or she is considered to be impaired.

DRUG TESTING

Under the new federal regulations, drug testing of railroad workers is now permitted. You should not risk your job or your income by refusing a drug test. The purpose of this testing is to check to see if you have been using any illegal drugs. The railroad is NOT permitted to have your blood tested for any other reason; e.g. genetic testing to see if you are predisposed to certain medical conditions.

If you are asked to give a urine or blood test, you should follow these steps:

1. Give the sample “under protest,” but do not refuse to do so.

2. Contact your union representative as soon as possible and before taking the test so that there will be a witness during the procedures.

3. Do not sign any forms that release your rights to the testing facility or the company. If you must sign a consent form, cross out any sections releasing the company or the testing facility or any rights you may have.

4. If you have any doubts about the outcome of the test or the manner in which it was conducted, immediately after your test you should arrange a duplicate urine and blood test at another, unrelated facility. This should be witnessed.

5. As soon as you are finished with both tests, you should write down everything that has happened from the moment the incident first occurred. In addition, you should make a detailed list of all the foods, beverages and prescription drugs you have taken during the last 24 hours.

6. The lab is able to freeze any specimens that test positive. You must ask the lab that if any of your specimens test positive, that they be frozen for not less than 90 days. They will then be available to you for testing by a lab of your choice.

7. Above all, be sure that you union representative is aware of all the circumstances of your drug test.