FAQ
Frequently, the railroad tries to blame the employee for his/her own injury. However, even if your actions contributed to causing your injury you may still be able to win a FELA claim against the railroad, but your recovery will be reduced by the percentage of your own negligence. Thus, if you are awarded $300,000 but your negligence was 1/3 of the cause of your injury, you would have your award reduced by 1/3 to $200,000. However, if your injuries were caused by the railroad’s violation of the Federal Safety Appliance Act or the Locomotive Inspection Act, the verdict will not be reduced.
Under FELA you have three years to file a lawsuit from the date you are injured. With respect to occupational disease claims, the three-year period begins to run when you knew or should have known that you were injured and that your injury might be related to the employment.
Lost wages can be placed into two separate categories. Past lost wages are determined by multiplying the amount of time you missed from work by the amount of your salary at the time of your injury. Future lost wages are calculated by the amount of your salary multiplied by the number of years you would have worked had you not been injured. This amount is then reduced to present value. If you accept wage continuation from the railroad, you cannot claim that amount as lost wages.
Under FELA, it is not necessary that you be on the railroad property at the time of your injury. The only requirement is that you were injured while performing an activity in furtherance of the railroad’s interstate business. Therefore, employees deadheading or otherwise traveling on behalf of the railroad are covered by FELA. Also, if the railroad puts you up in a hotel for a layover and you are injured, you are still covered by FELA if you can prove that the railroad or its agent was negligent.
Medical bills resulting from your injury are paid through your medical insurance policy.
If you are injured, your spouse may not make any additional claim. However, if an employee dies as a result of their injury, the personal representative may recover damages for the benefit of the surviving spouse and children.
In most cases, if an employee has several cases pending against the railroad, settling one does not necessarily release the railroad from the other pending cases. Beware, however, that railroad claims agents have increasingly been including a checklist of other potential claims in their releases. Even if you have agreed to only settle one claim, you may be signing away your rights to other future claims if you sign a standard railroad release!
The railroad has the right to test employees for drug use. Do not refuse to take the drug test. If you do so, you risk being terminated. If you are injured on the job, in certain circumstances the railroad can test for alcohol. If you refuse to submit to this test, you may be disqualified from service or even terminated.
It is not required that you have an attorney in order to proceed with a FELA case. However, FELA cases often involve complicated issues not found in ordinary personal injury matters and an experienced FELA attorney can be of great assistance. An attorney experienced with FELA litigation will advise you how to protect your rights and help you deal with the railroad claims agent and their lawyers. Your FELA attorney will evaluate your case based on the nature and extent of your injuries, time lost from work, negligence of the railroad and contributory negligence of the employee. As a result, injured workers who are represented by legal counsel usually will obtain better results than those who are not.
Long-term exposure to smoke fumes and dust in the workplace can result in serious health problems such as asbestos related lung disease, occupational pneumoconiosis, and other pulmonary problems or cancers. Exposure to vibration, high force, and repetitious activities may cause carpal tunnel syndrome or osteoarthritis of the knees, ankles or hips. Occupational diseases are progressive and you may be at risk, even if you have previously tested negative for these diseases. We have extensive experience representing railroad employees, both retired and active, with these disorders from their railroad work.
By law, all liens of the Railroad Retirement Board or any supplemental disability benefits must be paid back from any settlement or judgment you receive in your case. If you do not receive a settlement or judgment, the amount of the liens do not have to be paid back.
The FELA permits lawsuits to be filed against the railroad in any federal or state court in a state where the railroad does business. An injured worker is entitled to a jury trial.
If an injured worker can show some fault or negligence on the part of the railroad, the worker may recover damages for the past and future pain and suffering, permanent injury, emotional distress, medical expenses not paid by insurance or the railroad, and past and future lost wages.
Can my case be re-opened after a settlement of judgment, if my condition worsens? FELA is not like a workers’ compensation statute. Once your case has been settled or you have been awarded a judgment, you may not re-open your case at a later date, even if your condition gets worse.
An employee must show that he or she was performing work for the railroad at the time of the injury and that the injury was the result of some negligence on the part of the railroad. In other words, the employee must prove that the railroad did not provide the employee with a safe place to work. Thus, it is important to remember that FELA is not like a traditional workers’ compensation case. There is no guarantee that you will receive benefits just because you were injured on the job. We must prove some degree of negligence on the part of the railroad.
Information for spouses of railroad workers.
If you are the spouse of a railroad worker, there may come a time when you receive a call informing you that your spouse has been seriously injured or tragically killed on the railroad. Upon receiving this news the spouse is often unsure how to proceed. The railroad knows this and may send a railroad claims agent or another official to pressure the spouse into a quick settlement at an emotionally difficult time. If this is the case, the spouse must make sure to contact the local union officers or our office for help in protecting themselves and their children.
Do's & Don'ts
Do
Report the Injury
It is required that you report your injury to the railroad as soon as possible. Most railroads have rules requiring injured employees to complete an accident report form. It is important to document any aspect of railroad negligence or fault in the accident report form. You are not required to give any other statement regarding your accident to the railroad claims agent. If the agent attempts to take your statement, you may refuse to provide one. If you chose to give a statement, please contact your union representative or our office for help before doing so.
Contact Your Union Representative
Report your injury to your local union officer as soon as possible. Your union officer is there to help you. The union officer can help you obtain leave if necessary and get benefits to which you are entitled. Also, your union officer can help protect your job and seniority rights while you are off work.
Seek Medical Care
It is important that you get the proper treatment for your injuries. You are entitled to choose any doctor to provide medical treatment.
Apply For Sickness Benefits
If you are injured and will be off from work, you may be entitled to sickness benefits from the Railroad Retirement Board. Ask your local union officer or contact our office for the proper forms. The sickness benefits from the Railroad Retirement Board are to help you while you are unable to work, however, these benefits must be paid back out of any settlement or judgment you receive in your case.
Keep Accurate Records
It is important that you keep records of the facts surrounding your injury including any witnesses, any expenses you incur, photographs of your injuries, the location of the accident, and names and addresses of all doctors who treated you. These records can help when it comes time preparing your case for litigation. The more information you have the better!
Restrict Access to Your Medical Records
Medical facilities and doctors are accustomed to workplace injuries being handled under state worker’s compensation laws which permit them to share your records with insurance companies involved. Railroad injuries are different. Make sure access to diagnosis and treatment information is limited by informing your healthcare provider that this is a railroad injury.
Don’t
Delay reporting your injury.
Fail to get immediate medical treatment from your own doctor or the hospital of your choice.
Accept the doctor or medical facility recommended by your employer.
Fail to provide all the pertinent information about your injury in the Railroad’s Accident Report. Most important are facts that prove the employer’s worksite or procedures were unsafe. This form is the only information you are required to provide to the railroad.
Under no circumstances should you give a statement to your supervisor or claims agent. Such statements will be recorded and may include portions which can be interpreted as suggesting negligence on your part. Such statements are not required and will never be helpful to the injured worker.