FELA/Railroad Claims
Paoli, Latino & Kutzman, P.C.
1-800-816-9699
Paoli, Latino & Kutzman is the only law firm in the State of Montana
that is union designated by rail labor for its expertise in representing
railroad employees under the Federal Employers’ Liability
Act (FELA). David Paoli is a past President of the Montana Trial
Lawyers’ Association (MTLA) and has earned the top rating
given from Montana’s judges and lawyers for both his legal
ability and ethics. Our lawyers have represented hundreds
of railroad workers in both state and federal courts throughout
the western United States.
FREQUENTLY ASKED QUESTIONS:
What are my rights when I have been injured on the job?
Many railroad workers are led to believe that when they are hurt
on the job they are only entitled to a percentage of their time
or wages lost. This is because the railroad claims department often
tries to limit any settlement discussions solely to lost wages.
The idea that an injured railroad worker is entitled only to lost
wages is not only false, but can prove costly to the worker and
his/her family. The fact of the matter is that railroad employees
injured through the fault of the carriers are often entitled under
the law to receive much more than their lost time or wages.
Unlike virtually every other employee in the United States, railroad
employees are not covered by workers’ compensation statutes.
Instead, railroaders are covered by a federal law known as the
Federal Employers’ Liability Act (FELA). Under the FELA,
railroad employees are entitled to compensation if the following
criteria are met:
- You are employed by a railroad that either operates across
state lines or handles freight that may cross state lines at
some point;
- You are injured on the job; and
- Your injury is due to the negligence or carelessness of
the railroad or due to certain defects in cars, locomotives,
machinery,
tools, equipment or working conditions.
The amount of compensation you may be entitled to varies from
case to case and depends on a number of factors. As a rule, however,
you are entitled to be compensated for the following:
- 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.
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Does the FELA cover cumulative trauma, repetitive stress or vibration
related injuries?
WHOLE BODY VIBRATION / CUMULATIVE TRAUMA
INJURIES ON THE RAILROAD
Working on the railroad takes a toll on your body. Regardless of
your craft, 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.
The lawyers at Paoli, Latino & Kutzman, P.C. have 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. The lawyers at Paoli, Latino & Kutzman, P.C. have aggressively
pursued cumulative trauma claims on behalf of clients and have
successfully resolved these claims.
AVOID THE LAND MINES
Even though cumulative trauma claims are covered by the FELA,
there are significant differences between cumulative trauma and
specific incident injury claims. The three-year statute
of limitations,
which applies to all FELA claims, can often 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.
RECENT STUDIES ON CUMULATIVE TRAUMA
A team of doctors from the Mount Sinai School of Medicine recently
concluded a study of the effects 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.
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Should I deal with the railroad claims department?
The railroad is a business just like any other business – its
primary goal is to make a profit by generating as much income as
possible and by holding down costs as much as possible. Every railroad
employee’s job is designed to maximize profit. The railroad’s
claims agent’s job is no different. The claims agent’s
job is to resolve every claim for as little money as possible,
and if (s)he is not doing that, (s)he is not doing his/her job.
Unfortunately, the claims agent’s job is done at the expense
of the injured railroader.
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Should I give a statement to the claims department?
Right after an accident, many railroads try to get the injured
employee to sign a statement or give a recorded statement. Experience
shows that the employees frequently sign a statement or give an
oral recorded statement either without reading it or without understanding
the “trick wording” with which such statements are
loaded. Such statements often include words to prove that the accident
was not the fault of the railroad or any of its other employees,
but rather was the fault of the injured person.
Knowing that many workers fear being investigated after an injury,
the railroad will often get a worker to agree with statements such
as “the accident was unavoidable” or “there was
nothing anybody could have done to avoid the accident.” Thinking
(s)he is being let off the hook, the worker does not realize that
(s)he may also be letting the railroad off the hook by agreeing
with such a statement.
Unless your union agreement specifically requires you to do so,
you should not make any statements, either orally or in writing,
as to how the accident occurred or concerning the nature of the
injuries until such time as you have been fully advised by your
attorney and/or union representative.
REPORTING YOUR INJURY
Most railroads require by rule that an injured employee fill out
a Personal Injury Report. If you have any difficulty filling
out this form, you should contact your union representative at
once. Your union representative will either aid you in filling
out the form or provide you with other assistance in filling
it out properly. Many claims have been defeated or sharply reduced
in the amount of settlement because injured railroaders have
given written or oral statements or filled out accident reports
that they did not read nor properly understand. 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 very important because, at the time of trial, the railroad
will attempt to discredit your claim based upon your failure
to answer such questions or your answers that there were no defects.
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How long do I have to pursue my claim?
In any kind of case, there are laws that specify exactly how long
the injured person or the deceased person’s family has to
file the case in the appropriate court, called the “statute
of limitations.” In cases arising under the Federal Employers’ Liability
Act, the statue of limitations is three (3) years from
the date of the injury. If your injury is the result of cumulative trauma
or repetitive stress, the three-year time limit begins to run when
two things happen: (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. This is a rule of law which is very harshly interpreted.
As a general rule, no matter how serious your injury, if you wait
longer than three years to file your claim in a court of law, you
are not going to be entitled to anything.
Although you have three years to file your case, it
is not a good idea to wait until your time is nearly up before
contacting
an
attorney. The reasons for this are obvious, and include the fact
that the railroad has their attorneys working to defeat your case
from day one. Why shouldn’t you?
The only way your attorney can establish liability on the part
of the railroad is through investigation. This normally consists
of taking pictures of the area in which you were injured, taking
statements from co-workers who witnessed the accident or have information
concerning it, and inspecting or photographing the defective tools
or equipment that may have caused your injury. The more time that
passes, the more difficult it is to properly investigate a claim,
as the area may have changed; the tools or equipment may have been
repaired, lost, sold, or destroyed; and witnesses’ memories
may have become hazy regarding the facts of the incident.
Also, the longer you wait to file your claim, the longer you will
wait for your case to be settled or tried and to receive the money
you are entitled to. By waiting, you are losing the use of the
money, along with the interest on that money which, depending on
the state of the economy, may be worth less in the future than
it is worth now.
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What am I entitled to?
When an injured railroader has established that
the accident was caused, in whole or in part, by the railroad,
the next question is: How much is (s)he entitled to? The answer
depends on the nature of the injury and on certain other facts;
of course, the more serious and permanent an injury is, the more
money the injured worker is entitled to recover under the FELA.
In an injury case, the railroad worker is entitled to an award
for each element of damages proved by the evidence. In addition
to things like lost wages or un-reimbursed medical bills, you will
notice that some of the elements are intangible or things that
do not have a definite dollar value, such as pain and suffering.
It is difficult, if not impossible, to place an exact dollar amount
on the value of the loss of a limb or an hour of pain. However,
under our legal system, the only way an injured person can be compensated
for this type of loss is monetary. This is why your right to a
trial by jury is so important; a jury of people just like you will
determine the full value of your loss(es) based upon the evidence.
As you will see, the full value differs greatly from the compensation
that the railroad will attempt to confine your recovery.
The following factors impact the value of your claim:
1. The nature, extent and duration of the injury.
You are entitled to an award of money damages based on the severity
of the injury, or how serious and long-lasting the effects of the
injury are.
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 ailment or condition.
If you have a pre-existing condition or ailment that was aggravated,
in whole or in part, by the accident, you would be entitled to
a money damages award. An example is an injured employee who has
arthritis that became more painful after an accident or injury
sustained at work. Another example is an employee who injured his/her
back and then, several years later, re-injured it while on the
job. This employee is entitled to recover damages for the extent
of harm done to the back by the second injury. Just because the
railroad may have settled the earlier back injury does not mean
the worker cannot recover for the second one.
4. The pain and suffering experienced and reasonably certain to
be experienced in the future as a result of the injury.
This, in itself, can be a substantial award in a case where the
employee has suffered a permanent, disabling injury.
5. Reasonable expenses of medical care, treatment and the services
received, and the present cash value of the reasonable expenses
of medical care and treatment reasonably certain to be received
in the future.
The injured employee is entitled to recover payment for all un-reimbursed
medical bills incurred in the past and/or any medical bills (s)he
will have as a result of the injury for the rest of his/her life.
6. The value of earnings lost and the present cash value of earnings
reasonably certain to be lost in the future.
If the employee is totally disabled, (s)he is entitled to past,
present, and future lost wages, including the cash value of his/her
wages from the time of trial up to and including such time as (s)he
would have retired from the railroad. If the employee is not totally
disabled, (s)he is entitled to the present cash value of the difference
between the wages (s)he will earn in the future and the wages (s)he
would have earned in the future but for the injury and partial
disability.
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What happens if I am killed on the job?
In the unfortunate event of the death of a railroad worker, the
worker’s spouse and/or children or—in the event of
a single railroad worker—the worker’s next of kin,
are entitled to an award for each of the following elements of
damage proved by the evidence:
1. The pain and suffering experienced prior to death.
If the decedent suffered conscious pain and suffering because
of injuries sustained before death, then an award of damages must
be made to include an amount that would be fair and reasonable
compensation for such suffering.
2. Reasonable expenses of medical care, treatment and services
received.
The decedent’s family is entitled to payment for all of
the medical bills incurred by the decedent prior to death.
3. The value of any monetary loss suffered by the decedent’s
family and any monetary loss reasonably certain to be suffered
in the future by reason of the death of the railroad worker.
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 (s)he 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 been entitled to after the decedent’s
retirement from the Railroad Retirement Board had (s)he worked
out his/her normal life expectancy
until retirement.
The survivors are entitled to a reasonable pension as provided
for by the Railroad Retirement Board.
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Should I consult a lawyer?
It may be that your relationship with the railroad company for
which you have worked is a happy one, that you like your work,
and that you and your employer have enjoyed mutual respect and
cooperation. You have, no doubt, worked as a team, and feel that
you and your employer have been headed in the same general direction
and have certain common interests. That situation, however, changes
immediately when you are hurt on the job.
No matter how congenial your relationship with the railroad company,
the minute you are injured on the job, your interests and the interests
of the railroad company become absolutely opposed to each other.
Your interest is to protect your rights under the law and collect
every dollar that the law will allow for your injuries, for the
sake of you and your family. The interest of the railroad company
is to see that you do not collect at all or, if you collect, that
the amount is not one dollar more than absolutely necessary. This
does not mean that the railroad company will be unfair or dishonest
in every case. It does mean, however, that the railroad company
is not going to pay you a single dime unless you are prepared to
prove that you are entitled to it under the law. There is no generosity
in this business.
To protect its interests, the railroad company has many lawyers
and claims agents on its payroll. You will most likely have to
deal with the claim agents. These agents are very able, highly
skilled technicians who know exactly what they are doing. They
are well paid for a single purpose, and that is 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 the very fact that they are honest means that they do one hundred
percent of their very best work for the railroad company and not
at all for you.
It would be dishonest, and perhaps unlawful, for a claims agent
to give away the railroad’s money. A claims agent could not
do such a thing even if (s)he wanted to. So, if a claims agent
were to say, “Mr. Smith, we don’t owe you any money,
but we’re willing to pay you a little anyway,” the
agent is either lying to you or cheating the railroad.
Similarly, a claims agent could never say, “Mr. Smith, I don’t
think you’ve asked for enough money. In fairness to yourself,
why don’t you ask for a little bit more?” If an agent
did, how long do you think (s)he would have their job? Remember,
no one can serve two masters. The claims agent who tells you that
(s)he has your best interests at heart is probably lying to you
but, if (s)he means what (s)he says, (s)he is also cheating the
railroad company. Claims agents are the only employees of the railroad
company not engaged in helping the railroad earn money; a claims
agent’s sole purpose is to try to save the railroad company
money. A claims agent will try to save the railroad money in the
only way (s)he can, by taking it out of your pocket and that of
your family. Do not let this happen!
The minute you are injured, a whole barrage of highly trained
persons go to work on your case for the railroad company. They
are developing, through investigation, those facts that will help
the railroad and hurt you, taking photographs that will show a
situation favorable to the company and unfavorable to you, and
looking into the law to find out what will help the railroad’s
case and hinder yours. In the meantime, while the railroad company
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 that you need help to cope with the skill and experience
working against you. If that is the case, just as a person who
is sick should call upon a doctor, you should call upon a lawyer.
Ask your lawyer for advice. Take the word of your lawyer, not the
word of the claims agent or some well-meaning, but uninformed,
friend as to what the law is and what it means to your particular
case.
Be particularly aware 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?” That
is not an uncommon statement. Everyone who has to deal with a claims
agent will hear it sooner or later. But when a claim agent asks
that question, who do you suppose (s)he is really thinking about,
you or the railroad company? Is the claims agent really trying
to save money for you, or for the railroad company? The truth of
the matter is that the railroads do not 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 company consults its
lawyers every step of the way. Although the company will tell you
that you do not need a lawyer, it would never think of firing its
own lawyers.
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What should I know before consulting a lawyer?
Chances are you have never needed the services of a lawyer before.
It is quite likely that you do not know who to turn to for legal
advice.
There are a few simple things to consider. There are many, many
good lawyers in your community; in fact, most of them are good
lawyers. Unfortunately, there are some poor ones out there as
well. In these days of specialization, most lawyers, like most
doctors, tend to specialize. If you want a will drawn, or an
estate probated, you would naturally turn to a lawyer who specializes
in such matters. If you are involved in a tax matter, you want
a lawyer who knows tax laws. By the same token, if you are hurt
on the job and want to know where you stand as far as the Federal
Employers’ Liability Act is concerned, you should naturally
turn to a lawyer who knows and has worked with this law. When
selecting a lawyer, you should determine his/her ability to handle
cases under the Federal Employers’ Liability Act. Ask him/her
the number of cases (s)he has handled and tried before a jury,
especially under the FELA. If (s)he hasn’t tried enough
of these cases, (s)he will have a difficult time dealing with
the railroads. Also find out if the lawyer is approved by any
railroad unions to handle these claims on behalf of their injured
members. Ask what his/her fee will be for representing you in
this matter if you hire him/her.
If you are injured or your family is in need of assistance because
of your death, you or your family should contact your Local Chairman
or General Chairman, and (s)he will advise you on how to proceed
concerning the Federal Employers’ Liability Act.
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Can I be fired for talking to a lawyer?
Some railroaders hesitate to consult a lawyer about their claim.
Often, they have been led to believe that the company can put them
out of service or discriminate against them in other ways because
they have exercised their right to consult a lawyer. This is false.
The FELA forbids the carriers to discriminate against an injured
worker for seeking out legal representation. The FELA is very clear
and strong on this point. In fact, the FELA spells out the legal
right of the injured railroad worker to seek a lawyer’s advice.
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.”
(“Person of interest” in the above-quoted law refers
to 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.
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What should I do to get medical treatment?
When you are injured, you have the right to see a doctor of your
choice. You do not have to see 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 physician
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.
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Am I entitled to any financial assistance from the railroad while
my case is pending?
Most railroads have implemented company policies generally known
as “light duty” or “wage continuation.” Each
railroad has its own policy but, in general terms, the railroad
pays the injured employee a monthly sum (quite often less than
what the employee generally earns at his/her regular job) for a
limited period of time. In return, the employee is usually expected
to agree to do several things for the railroad, including perform “light
duty.”
The price you pay for “light duty” or “wage
continuation” can be significant! The injured railroader
must understand what (s)he is giving up. Quite 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.
The railroad requires you
to give up many legal rights when you agree to its light
duty/wage continuation program. Therefore,
you should discuss your particular situation
with an experienced attorney to determine what the best course
of
action
is for
you.
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What are the things I should do when I’m injured?
Railroaders should do the following when they are injured:
- Get the names and addresses of all persons who witnessed 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 and injury immediately to your Local Chairman
or your General Chairman;
- Do not give any statement, whether
written or oral, to the railroad;
- Get proper medical care
from a physician of your choice;
- If the railroad rules or
your union agreement require that you fill out an accident
form, be properly advised concerning this
form. Be sure to keep a copy of the accident report;
- If you
are going to be off work as the result of the injury, 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 the toll-free number of this
office for a free consultation.
The bottom line is this: as a railroad employee, the Federal Employers’ Liability
Act 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. If you accept the advice
of a claims agent regarding what you are entitled to, then that
is all you will receive. 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. Do not allow yourself to 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 that 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 advice
or decision of the railroad regarding how much money you are entitled
to receive.
Paoli, Latino & Kutzman, P.C.
1-800-816-9699
© 2007 Paoli, Latino & Kutzman, P.C.
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FELA/Railroad
Claims