Railroaders are covered by the Federal Employers Liability Act (FELA). State workers' compensation law does not apply to railroad worker injuries. An injured railroader must prove to a jury that the employer was negligent or that it supplied defective equipment. Specific questions and answers about the FELA and other types of railroad claims appear below.
What are my rights when I have been injured on the job?
Should I report my injury?
Can I be fired for reporting my injury?
Does the FELA cover cumulative trauma, repetitive stress, or vibration related injuries?
Should I deal with the railroad claims department?
Should I give a statement to the claims department?
How long do I have to pursue my claim?
What am I entitled to?
What happens if I am killed on the job?
Should I consult a lawyer?
What should I know before consulting a lawyer?
Can I be fired for talking to a lawyer?
What should I do to get medical treatment?
Am I entitled to any financial assistance from the railroad while my case is pending?
What are the things I should do when I am injured?
What are my rights when I have been injured on the job?
Injured railroaders are covered by the Federal Employers' Liability Act (FELA). Under the FELA you are entitled to compensation if:
- You are employed by a railroad that operates across state lines or handles freight that has crossed or will cross state lines;
- You are injured on the job; and
- Your injury results from the negligence (carelessness) of the railroad or from defects in cars, locomotives, machinery, tools, equipment or working conditions.
The amount of FELA compensation you may recover varies from case to case and depends on several factors. Generally, however, you can recover compensation for:
- Your past and future pain, suffering, emotional, and psychological distress;
- Un-reimbursed past medical expenses and future medical expenses;
- Lost fringe benefits such as vacation pay, medical insurance, and Railroad Retirement contributions; and
- Past and future lost wages and/or impaired earning capacity.
Should I report my FELA injury?
Most railroads have rules that require an injured employee to notify a supervisor immediately. Prompt oral notification is the first step but is seldom enough. Most railroads also require the injured employee to fill out a written personal injury report. Failing to comply with these rules can result in serious discipline, including discharge from the railroad's employment.
FELA claims have been defeated or reduced because injured railroaders filled out accident reports that they didn't read or fully understand. These forms have been designed by the railroad's claims department and lawyers to get information they can distort to defeat or reduce your claim. Typically you must get the blank form from a supervisor. If you have trouble filling out the form, contact your union representative at once. Your union representative will either help you fill out the form or get other help for you. Read the form carefully and think about the questions before answering. If the form asks questions about defects in equipment or what caused your injury, be sure to provide specific, appropriate answers. This is important because the railroad will later try to discredit your claim if you do not specify any defects or carelessness by anyone else other than yourself.
Can I be fired for reporting my FELA injury?
No. The Federal Railroad Safety Act of 2007 prohibits railroads from retaliating against employees who report on-duty injuries. "Retaliating" includes discharge. It also includes other adverse employment action like suspension, harassment, unusually frequent operations testing, and/or increased management scrutiny. This statute also protects employees who try to accurately report their hours of service, or who report unsafe track or unsafe equipment, or who refuse in good faith to work on unsafe track or equipment. Congress gave OSHA, rather than the Federal Railroad Administration, jurisdiction over these claims because OSHA already had experience with similar retaliation claims in other industries. If successful, the employee may be entitled to reinstatement with retroactive seniority, back pay with interest, punitive damages, and costs and attorney's fees. See our Railroad Whistleblower – Retaliation Page for more details.
This claim has a very short (180 days) statute of limitations. If you suspect the railroad may be retaliating against you because you engaged in one of these protected activities, you should contact competent legal counsel immediately.
Does the FELA cover cumulative trauma, repetitive stress or vibration related injuries?
The railroad and its claims representatives may tell you that you have no right to compensation if you cannot identify a specific injury that occurred during a specific activity on a particular shift on a particular date. That is not the law.
Whole Body Vibration and Cumulative Trauma Injuries on the Railroad
Working on the railroad takes a toll on your body. If you have spent more than a few years working on the railroad, you probably know firsthand what it is like to live with aches and pains in your neck, back, joints, and muscles on a daily basis. For years, most railroaders accepted these aches and pains as being part of the job and often did not even think of them as being on-the-job injuries. For more than forty years, however, the railroads have been well aware of the potential claims their employees could bring for cumulative trauma injuries. "Cumulative trauma" describes the injuries a railroader sustains from repeated pounding on the bones, muscles, and joints during years of working on the railroad.
Cumulative Trauma Research
Cumulative trauma comes in many forms, and may include repeated stress to the knees and hips as a result of walking on uneven ballast and getting on and off of moving equipment; back injuries resulting from the sustained vibration of locomotives and track equipment; injuries to the neck, shoulders, and arms from poorly designed equipment; and much more. The National Institute for Occupational Safety and Health (NIOSH) examined workplace injuries and concluded that cumulative trauma in its various forms is responsible for many chronic musculoskeletal injuries.
David Paoli has consulted with many nationally recognized safety experts in the fields of cumulative trauma, vibration syndromes and ergonomics in the representation of their railroad clients.
Under the FELA, You Can Recover for Whole Body Vibration / Cumulative Trauma Injuries
The FELA does apply to work-related cumulative trauma injuries, as well as to specific incident injuries suffered while working on the railroad. David Paoli has aggressively pursued cumulative trauma claims on behalf of clients and has successfully resolved these claims.
Avoid the Land Mines
Even though the FELA covers cumulative trauma claims, there are significant differences between cumulative trauma and specific-incident claims. The three-year statute of limitations, which applies to all FELA claims, can potentially cause a cumulative trauma case to be dismissed, preventing an employee from pursuing his/her claim regardless of how strong that claim may be. Frequently, when a railroad employee reports an injury to the company that may be the result of cumulative trauma, (s)he is asked to provide a recorded statement to the company and to complete a lengthy Cumulative Trauma Questionnaire in addition to the standard personal injury report. Any or all of these actions are loaded with potential legal land mines that can reduce or completely eliminate your claim. Your first step before pursuing a cumulative trauma claim should be to consult with competent legal counsel at Paoli Law Firm.
Studies on Cumulative Trauma
Doctors at the Mount Sinai School of Medicine studied the effects on train crews of prolonged exposure to vibration from locomotives in normal service. They concluded that train crews are regularly exposed to high levels of vibration and shock. They further found that locomotive cab seats (new or old) appear inadequate in reducing the potentially harmful vibration and shocks transmitted to the operators. Even more disturbing, the study noted that over the last few decades, other industries have implemented successful ergonomic improvements that have significantly reduced the vibration and shock exposure suffered by their operators. The railroad industry, however, has declined to adequately address this important health and safety issue for its workers.
Should I deal with the railroad claims department?
The railroad is a business. Its primary goal is to make profit by generating income and holding down costs. It sees your claim as a cost, to be held as low as possible. The claims agent's job is to resolve every claim for as little money as possible. Unfortunately, the claims agent does his or her job at the expense of the injured railroader.
Claims agents often limit their settlement discussions with unrepresented individuals solely in regard to lost wages. While past wage loss is one of the damage items a jury would consider, it is only part of the story. Claims agents almost never reveal or account for intangible damage items like pain and suffering and loss of established course of life. They may even go so far as to say you have no legal right to recover for those damage items. These people have a job to do. It does not include giving you accurate advice about your legal rights. You cannot rely on them for accurate information.
Should I give a statement about my FELA injury?
Right after an accident, many railroads try to get the injured employee to sign a statement or give a recorded statement. Employees sometimes sign written statements or give oral recorded statements without reading or understanding the "trick wording" the claims department has inserted into the statement or into the questions. The claims department typically sets up these statements to suggest the accident was not the fault of the railroad or any of its other employees, but rather was the fault of the injured person.
The railroad knows its employees fear being investigated after an injury. Therefore it tries to get the worker to agree with statements like "the accident was unavoidable" or "there was nothing anybody could have done to avoid the accident." Thinking he or she is being let off the hook, the worker does not realize that he or she may also be letting the railroad off the hook.
You should try to postpone making any statements, either orally or in writing, about your accident and injuries until you have been fully advised by your attorney and/or union representative.
How long do I have to pursue my FELA claim?
The "statute of limitations" specifies exactly how long the injured person or the deceased person's family has to file a case in court. The FELA statute of limitations is three (3) years from the date of the injury. If your injury results from cumulative trauma, the three-year time limit begins to run when: (1) you know you have an injury; and (2) you know or should know that your injury is related to your work on the railroad. Generally, if you wait longer than three years to file your claim in court you are not going to be entitled to any compensation regardless of how severe your injury turns out to be.
Although you have three years to file your FELA case, don't wait until your time is nearly up before contacting an attorney. The railroad has attorneys working on your case from day one. You should too.
Your attorney establishes the railroad's FELA liability by investigating your claim. This normally means photographing the location where you were hurt, talking to co-workers who saw the injury or know about it, and inspecting or photographing the tools or equipment that may have caused your injury. The more time that passes, the harder it is to do these things. The area may have changed. The tools or equipment may have been repaired, lost, sold, or destroyed. Witnesses' memories may have faded.
Also, the longer you wait to file your FELA claim, the longer you will wait for your case to be settled or tried. By waiting, you are losing the use of the money, along with the interest on that money. Depending on the state of the economy, your recovery may be worth less in the future than now.
How much can I recover for my FELA claim?
Every FELA case is different and depends on its own facts. The following factors impact the value of your claim:
1. The nature, extent and duration of the injury.
2. The disability and disfigurement resulting from the injury. Disability is the difference between your condition after an injury and your condition prior to the injury. Disfigurement is scarring or any other type of injury that has changed the appearance of any part of your body.
3. The aggravation of any pre-existing condition. If your accident aggravated a pre-existing condition you would still be entitled to a money damages award. You might have pre-existing arthritis that becomes more painful after a work-related injury. You might have a pre-existing injury to your back that heals and then, several years later, is re-injured in an on-duty accident. You are entitled to recover at least the damages resulting from the second injury. If the doctors cannot sort out how much of your pain and disability results from which injury, you can recover for all of your pain and disability. Just because the railroad may have settled for the earlier injury does not mean the worker can't recover for the second one.
4. The pain and suffering suffered in the past and likely to be suffered in the future as a result of the injury. This can be a substantial award in a case where the employee has suffered a permanent, disabling injury.
5. The reasonable value of medical care already received and the present cash value of medical care reasonably certain to be received in the future. The injured employee is entitled to compensation for un-reimbursed medical bills incurred in the past and/or the costs of future medical care necessary to deal with his or her injury.
6. Past wage loss and the present cash value of future wage loss. An employee who is totally disabled by a work-related injury is entitled to past and future lost wages. This includes the present cash value of the wages he or she would have earned through what would have been the normal end of his or her railroad career. If the employee is partially but not totally disabled, he or she is entitled to the present cash value of the difference between the wages he or she will earn in the future and the wages he or she he would have earned in the future but for the injury and partial disability.
Some of these compensation items do not have a definite and precise dollar value. Pain and suffering is one such intangible item. It is difficult, if not impossible, to place a dollar amount on the value of the loss of a limb or an hour of pain and suffering. However, under our legal system, money is the only way an injured person can be compensated for this type of loss. This is why your right to a jury trial is so important. A jury of people like you will determine the full value of your losses based upon the evidence. The full value of your claim as seen by a jury of your peers is usually much higher than the railroad's claims agent tells you it is.
What happens if I am killed on the job?
The worker's spouse, children, or next of kin may be entitled to FELA compensation for the following:
1. Conscious pain and suffering experienced by the railroader between the injury and his or her death.
2. Medical care, treatment and services received by the deceased railroader.
3. The value of any monetary loss suffered by the decedent's family. The present cash value of all benefits contributed to each survivor including money, goods, and services are taken into consideration when deciding this money damages award. The value is decided by factoring in what the deceased worker was earning at the time of death, and what he or would have been likely to earn in the future in view of his/her earning capacity, age, and life expectancy at the time of death.
4. The value of any money the survivors otherwise would have received from the Railroad Retirement Board if the deceased railroad had survived and had worked out his/her normal life expectancy until retirement.
Should I consult a lawyer about my FELA claim?
Up to this point you may have had a good relationship with the railroad. You may like your work, and may believe that you and your employer have enjoyed mutual respect and cooperation. You worked as a team. You probably thought you and your employer were headed in the same general direction and had certain common interests. That situation changes immediately when you are hurt on the job.
No matter how good your relationship has been with the railroad, your interests diverge the minute you are injured on the job. Your interest is to protect your rights under the FELA and collect every dollar the law will allow for your injuries, for the sake of yourself and your family. The railroad's interest is to keep you from collecting at all or, if you collect, to minimize the amount you collect. This does not necessarily mean the railroad will be unfair or dishonest in every case. It does mean that the railroad will not pay you a single dime unless you are prepared to prove you are entitled to it under the FELA.
You will probably have to deal with the railroad's claim agents. They are skilled technicians who know exactly what they are doing. They are well paid to see that you get nothing at all for your injuries or, failing that, that you get as little as possible. Most of these claims agents are honest, but this means they do their best work for the railroad and not for you.
The minute you are injured, a small army of highly trained specialists goes to work on your case for the railroad. These people are developing facts that will help the railroad and hurt you. They are taking photographs that will show a situation favorable to the railroad and unfavorable to you. They are looking into the law to find out what will help the railroad's case and hinder yours. While the railroad is busy protecting its interests, what are you doing to protect your interests?
You have the right to go it alone and represent yourself, but you may feel you need help to cope with the skill and experience working against you. You can and should call Paoli Law Firm. Ask your lawyer for advice about the FELA. Take the word of your lawyer. Don't uncritically accept the word of the claims agent or some well-meaning, but uninformed, friend about what the law is and how it applies to your particular case.
Be particularly wary of the claims agent who says, "You don't need a lawyer — the company will be fair with you. Why split what you're going to get with a lawyer?" Everyone who deals with a claims agent will hear this or a similar comment. Railroads don't want you to see a lawyer because they know you will get substantially more for your claim if you do. Also remember that the railroad consults its own lawyers every step of the way. The railroad would never even consider defending against a FELA claim without lawyers.
What should I know before consulting a lawyer?
You may have never needed a lawyer before. You may not know who to turn to for legal advice.
There are many good lawyers in your community. Unfortunately, there are some poor ones as well. If you are hurt on the job and want to know about your FELA rights, you should naturally turn to a lawyer who knows and has worked with the FELA. Ask any lawyer you are considering the number of cases he or she tried before a jury, especially under the FELA. Ask what his or her fee will be for representing you.
If you are injured or your family needs help because of your death, you or your family should contact your Local Chairman or General Chairman for advice.
Can I be fired for talking to a lawyer about my FELA claim?
Some railroaders hesitate to consult a lawyer. They fear the railroad can pull them out of service or discriminate against them in other ways because they have talked to a lawyer. This is false.
The FELA prohibits discriminating against an injured worker for seeking legal representation. The FELA provides specifically that:
"Whoever, by threat, intimidation, order, rule, contract, regulation or device whatsoever, shall attempt to prevent any person from furnishing. . . such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing such information to a person of interest, shall, upon conviction thereof, be punished, by a fine of not more than $1,000 or imprisonment, for not more than one year, or both such fine and imprisonment, for each offense."
45 U.S.C. § 60 ("person of interest" means your lawyer.) The advice and counsel of a lawyer are the railroad worker's best guarantee that his/her claim will be properly evaluated, handled, and presented, and that the largest payment or settlement will be obtained.
What should I do to get medical treatment?
You have the right to see a doctor of your choice. You don't have to treat with a company doctor except for return to work physicals and the periodic physicals sometimes specified by the union agreement. In fact, you should seek out a doctor who is independent of the railroad. The company doctor who may have treated you fairly in the past may be too tied to the railroad to be fair when you have a potential claim against the railroad.
The railroad cannot prevent or delay your medical treatment after an injury. If you have been injured and want medical attention, say so. If you have asked for medical care but railroad officials insist on having you fill out paperwork before they transport you to get medical attention, you should contact a lawyer immediately.
Does the railroad have to advance pay my wage loss?
Most railroads have "light duty" or "wage continuation" policies. The specifics vary from railroad to railroad. Generally, the railroad pays the injured employee a monthly sum (typically less than the employee generally earns at his/her regular job) for a limited time. In return, the employee typically agrees to several conditions, including working at "light duty."
The price you pay for "light duty" or "wage continuation" can be significant. Often, the injured railroader must agree to:
- Pay income taxes on the wage continuation, while still being expected to repay or give the railroad credit for the wage continuation received;
- Agree to give up all collective bargaining rights under the Railway Labor Act regarding the entire wage continuation process (remember, this is a company policy, not a collective bargaining agreement by your union);
- Agree not to earn a monthly credit for your railroad service from the so-called wages of wage continuation;
- Give the railroad claims department all the statements it wants;
- Allow the railroad to disregard the opinion of your treating physician(s); and
- Allow the railroad to send you to as many of its physicians as it may desire.
You should discuss your particular situation with an experienced attorney at Paoli Law Firm to determine the best course of action.
What are the things I should do when I'm injured?
Railroaders should do the following when they are injured:
- Report the accident and injury to the railroad by the quickest available means;
- Get the names and addresses of everyone who saw the accident, and the names and addresses of everyone in the crew or gang you were working with at the time of your injury;
- Report the accident immediately to your Local Chairman or your General Chairman;
- Try to avoid or postpone giving any written or oral statement until after you've consulted with a union officer or an attorney at Paoli Law Firm;
- Get proper medical care from a physician of your choice;
- Comply with any railroad rules about filling out a written injury report and keep a copy for your own records;
- Preserve your right to return to work upon recovery by filing the necessary documents with the carrier as provided by the union agreement; and
- Consult a union-approved attorney for advice about your rights. You may call Paoli Law Firm at 406-542-3330 or 800-332-4308 to request a free consultation.
The FELA gives you more rights and more protection than any other working person in the United States. Unless you know these rights and exercise them, they might as well not even exist. As a general rule, once you sign a release and settle your case with the claims agent, you will never be able to go back for more money, even if your injury increases in severity or you are eventually unable to work anymore.
You have one chance to recover for yourself and your family when you are injured. Don't be deceived into thinking that if you go along with the railroad and take a low settlement they will take care of you. There is no such thing as a lifetime job or a guaranteed job, and any claims agent who promises this to you is being less than truthful.
Once you settle up with the claims agent, you can theoretically be medically disqualified the next day. If this were to occur, all you would be left with is an unfair settlement and no job.
Know your rights. You have too much at stake to accept the railroad's advice or decision about how much money you are entitled to receive.
To request a free consultation, please call us at 406-542-3330 or 800-332-4308. You can also email us using our contact form.