INJURIES ON THE RAILROAD

                                                                    and the F.E.L.A.

 _________________________________________________________________

            Railroad workers have one of the most dangerous jobs in the United States. In fact, some states have statutes which specifically define railroad work as a hazardous job. During a railroader’s career, he/she can expect to be injured at least once, and in all likelihood, more than once. Hopefully, the injuries will not be serious. However, every railroader and every railroader’s family should prepared, when any injury happens. The first step to being prepared is to continue reading. 

 

           

                There is no worker’s compensation in the railroad industry. Rather, when a railroad employee is injured at work a federal law known as the Federal Employer’s Liability Act (FELA) applies. The FELA does not resemble worker’s compensation in any fashion. For example, in its basic form, worker’s compensation benefits are paid whenever an injury occurs to an employee who while he/she is working in the “course and scope of employment.” On the railroad, however, the employee must be able to prove the railroad did something wrong and that the “wrongful act” caused the injury. Of course, anyone who has made a claim for worker’s compensation benefits realizes that the benefits are meager, at best; do not last very long; cover little; and, they have to fight with the insurance company just to get the meager benefits which they should receive. On the other hand, under the FELA, if the employee can prove the railroad, or any of its agents or employees, did the least little thing to cause or contribute to the injury, then the railroad employee is entitled to all related past and future medical expenses and wages lost; to any other expenses related to the injury; to all past and future pain and suffering related to the injury. Moreover, there are multiple federal laws and case interpretations which may help the employee prove the railroad did something wrong.

 

            Because an employee must prove the railroad did something wrong, when an injury does happen, the railroad immediately puts a machine in motion. Managers are trained to protect the railroad’s interests. They immediately contact the law department claims agents and to begin gathering as much information as possible. They interview all employee witnesses; they try to do re-enactments; they try to interview the injured employee; and, they try to control the medical care and treatment the injured employee receives. All of this is done by the managers to protect the railroad, not the employee. It is safe to say that, when it comes down to it, no manager will testified on behalf of the employee and against the railroad in an FELA trial. So, when an injury does happen, the employee must protect him/herself.  

 

            Before an injury happens, railroads are actively working in various ways to limit their responsibility for injuries. Over the last several years, railroads in the United States have developed very aggressive programs they say are for “safety.” Although these programs have different names, they are all basically the same. They are programs of discipline and harassment which they call a “safety” program, but it is clear that all railroad management has developed a coordinated attempt to harass and intimidate railroad workers from reporting injuries and taking time off to recover from those injuries. Railroad officials do this for various reasons. One such reason is that if an employee reports an injury and takes time off from work or receives prescription medications, the railroad must report the injury to the Federal government. The more injuries reported the more the Federal government pays attention to the railroad. More than one railroad manager has lost his job or been banished to undesirable jobs because too many injuries were reported.  

 

            Railroad management gauges the success of their programs on how much money they are able to save their claims departments. This desire often develops into a contradiction between maintaining production and creating a safe work place. A contradiction that develops solely in an attempt not to pay out claim money that the railroad owes an employee for a bona-fide injury. The result of railroad safety programs is to largely ignore this contradiction and instead, to institute disciplinary programs in place of a true safety program for railroad workers.

 

            Report Every Injury on the Day It Happens

 

                If you are injured, you must report the injury to your immediate supervisor as soon as you can but certainly before the end of the work day on which you received the injury. If you do not report the injury before the end of the work day, and you try to report it the next day, the Company will bring you up on charges of failing to report an injury or falsifying an accident report. They WILL try to fire you.

 

                What rights do I have when I’m Injured and I need medical care?

 

                Federal law provides that when you are injured on the job and you need medical care, the railroad must provide you with transportation WITHOUT DELAY to the NEAREST “hospital”: not an urgent care center. If your condition allows it, the railroad can take you to the nearest hospital by company vehicle rather than by ambulance.

 

                Federal law also prohibits the railroad from disciplining, or threatening to discipline, you for seeking medical treatment, or for following orders or a treatment plan of a treating physician.

 

                If the railroad violates these federal laws you may bring an action against the railroad, under whistleblower provisions, for any violation. In that action you may recover back pay with interest, reinstatement and you may be able to recover, separate from a FELA action, compensatory damages, attorney’s fees and punitive damages up to $250,000.

 

                Only your physician can certify when you are fit to return to work, but the railroad can then order an examination by its own physician to determine if you are fit, under railroad policies, to return to work, or should be kept off duty for a longer period.

                What happens at the hospital?

 

                Depending on the nature of the injury, your supervisor, or some other Company official, may take you to the hospital. Usually, the doctor at the hospital will tell you to take off some time from work and report to your own doctor within 24 hours. At this time, and IF YOU ALLOW IT, the supervisor will probably attempt interfere between you and your doctor. The supervisor will likely try to convince the doctor to permit you to return to some form of light duty work. These supervisors will ask the doctor about the nature of your condition and explain the light duty program to the doctor. The supervisor is usually very aggressive about this and may be successful in convincing the doctor that you are “fit” for light duty.  

 

                Your supervisor has NO right to interfere with your treatment or with your relationship with your healthcare provider. YOU must enforce your rights and make sure your doctor treats you and not the company. Therefore, you must tell your doctor that you do not want him/her to discuss anything about you with the railroad or your supervisor. Additionally, you should ask the doctor to keep the supervisor out of the examining room.

 

                Once the doctor has told you not to report to work and to go home and rest, FOLLOW YOUR DOCTOR’S ORDERS. Your supervisor may attempt to convince you to report back to the railroad for questioning or for light duty. Again, FOLLOW YOUR DOCTOR’S ORDERS, it is the safest course of action. Your supervisor may, also, tell you that if you take off, you will be brought in for a hearing and investigation and disciplined and possibly discharged. These threats MAY be a violation of federal law. Additionally, once you get home, you will be deluged with telephone calls from your supervisor, the Safety Officer, and other managers. One of these people will schedule an appointment with the Company doctor and order you to keep the appointment. This may happen even though the hospital doctor told you not to go to work and stay home.

 

                Although the Company has the right to send you to their doctor, you have the absolute right to be treated by your own doctor. If it does not violate your doctor’s orders, you should keep the appointment with the Company doctor. Usually, the Company doctor will advise you that you are capable of returning to work. There are cases where Company doctors have authorized people to return to work with pneumonia, broken bones, etc. At this point, it is absolutely critical that you immediately go to your own doctor and get an accurate appraisal of your condition. If your doctor says that you can return to the work the company has for you, then you should return to work. However, if your doctor, who is the treating doctor, tells you to stay off work, then you should follow your doctor’s orders. If the Company official wants to know who your doctor is, you should tell the Company official or the Company doctor. You should also tell your doctor that the Company or the Company doctor may call and that you do not want any information about your injury released to the Company.

 

                DON’T ANSWER THE TELEPHONE. It is advisable if you receive an injury for which you may lose time, to not answer the telephone. You should instruct your spouse or other close friends, to inform the railroad that they will not disturb you due to your condition.

 

                When someone from the Company comes to your house, have your spouse or friend, refuse to permit the Company officials into the house. Your spouse or friend, should tell the Company official that they will not disturb you just because they are there.

                The Company is required to report lost time in injuries to the Federal Railroad Administration for a period of ten days after the accident that caused the injury. If you lose a day within the ten day period, this phase of the harassment usually stops and the Company goes into the next phase of its harassment (safety?) policy.

 

                Your Injury and The Federal Employer’s Liability Act

 

                As previously stated, there is no state worker’s compensation for railroad employees. So, everything you have ever heard in other industries about how an employer must pay the employee for an injury does not apply to injuries on the railroad. Injuries on the railroad come under The Federal Employer’s Liability Act (FELA). 

 

                Under FELA if you are injured working on the railroad, it is only required to pay for the injury if the railroad or any of its employees or agents (eg: taxi cab company) were “negligent” or violated a law. So, YOU need to be able to PROVE that the railroad did something wrong. If you cannot, then the Company does not have to pay for anything related to your injury. However, in reality, whenever an injury happens the railroad or one of its employees or agents almost always has done something to contribute to it. Proving it, and getting the evidence, sometimes is not easy.

 

                If you did something wrong which contributed to your injury (contributory negligence) and the railroad can prove it, then the amount you would be entitled to for your injury will be reduced by the percent of your negligence compared to the Company’s. So, it is important that you ensure you do not do something wrong which contributes to your injury. NEVER ADMIT THAT YOU DID ANYTHING WRONG OR THAT YOU COULD HAVE DONE ANYTHING A DIFFERENT WAY.

 

                When filling out the accident report for the Company, it is critical to remember, YOU ARE NOT AN ACCIDENT INVESTIGATOR OR RECONSTRUCTION EXPERT. YOU HAVE NOT INVESTIGATED THE ACCIDENT. So, say so on the report. Also, take everything into account. When any Company official asks what happened, make certain that you think about everything that may have caused the accident. If your injury resulted from using a bad tool, then the cause of the accident is “defective tool”. If you slipped as a result of buried tie stubs, make certain to say the cause of the accident was “buried tie stubs”. When asked to describe, in your own words, what happened, use as few words as possible and make certain to include whatever, if anything, the railroad did to cause the accident. When asked what could have been done to prevent the accident, make certain to include what, if anything, the railroad could have done to avoid the accident. Remember, if the railroad was not negligent, or if the accident was wholly your fault, then you are not eligible to collect benefits under FELA.

 

 

The Claims Department- One Objective: Protect the Company’s Interest

 

                Once an injury happens, the Company puts a machine in motion. The company officials immediately start gathering information and they immediately contact the Claims agent who is part of the railroad law department. The Claims agent then starts to do his job. He has one objective: TO PROTECT THE COMPANY’S INTEREST. He will begin protecting the Company by gathering all the physical evidence, taking photographs, having equipment inspected, interviewing all the witnesses and interviewing you.

 

                The Claims Agent will act friendly. He will tell you that you don’t need a lawyer to settle the claim. He will tell you that all a lawyer does is take a fee. He will tell you that when you use a lawyer, it takes two years to settle a dispute. He will tell you, “as a friend”, that the injury was actually your fault, anyway. And he will tell you that if you get an attorney, you won’t be able to receive an advance. 

 

                The Claims Agent will try to settle the case rapidly – to get you to sign a release for whatever you would have earned on straight time, minus about 30% that you would have had to pay in state, federal and Railroad Retirement taxes. He will offer you nothing, or little, for your injury compared to what it’s real value is. Remember, if you sign a release, the case is closed. If your injury is more serious than you originally thought, you are stuck with the original settlement. DON’T SIGN A RELEASE WITHOUT TALKING TO THE UNION OR AN ATTORNEY.

 

                You do not have to give a statement to the Claims Agent. He will tell you that you must give a statement in order to settle the claim, or get a cash advance. This is true. However, if you choose not to deal with the Claims Agent, you don’t have to.

 

If I Can Prove The Company Did Something Wrong What Does It Have To Pay For?

 

                Under the FELA, if you prove the Company was negligent and that it’s negligence caused your injury, you are entitled to receive compensation for:

                                1. Your injury; pain, suffering, disfigurement, disability, anxiety, which you have experienced and will experience into the future;

                                2. Past and future medical expenses related to your injury;

                                3. Past and future lost wages caused by your injury;

                                4. Any other expenses reasonably related to your injury.

               

                If you received Railroad Retirement Benefits while you were off work for your injury those benefits must be paid back and will be deducted from your settlement. Likewise, if you received any advances from the Company those amounts will be deducted from your settlement.  

 

                Why Do I Need An Attorney?

 

                Remember, the Claims Agent is trained to do HIS job. You are not. So, you cannot possibly do HIS job better than, or even as well as, him. 

               

                When you hired on the railroad, the Company did not tell you what rights were give to you by the United States Congress. When you are injured neither the Company nor the Claims agent will tell you what your rights are. They don’t want you to know. So, if you don’t know what laws protect you and can be used to ensure you receive what you are entitled to, then, you NEED a well qualified FELA attorney. Yes, the attorney will charge a fee, but, in the end a well qualified FELA attorney will earn his money and be well worth it in terms of what you receive in your pocket.

 

 

THE FORGOING IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. FOR SPECIFIC CIRCUMSTANCES YOU SHOULD SEEK ADVICE FROM THE UNION GRIEVER AND A QUALIFIED F.E.L.A. ATTORNEY.