If you are hurt on the job, call our law firm for free confidential advice and direction regardless of whether you are ready to hire an attorney.
We will gladly answer all of your questions from wherever you may call in the country regardless of the craft or carrier for whom you work. This is in accord with the Rules of Conduct followed by all Union Designated Legal Counsel approved by Rail Labor. Advice will be given to you freely and without obligation in our capacity as Counselors at Law concentrating in the field of Railroad Law. Please always remember that as Union Designated FELA Lawyers, we are here to serve you as a union member by answering your questions and by legal representation if you so request. Education about your FELA legal rights is the key to avoiding costly legal mistakes which may later haunt you in asserting your claim for on-the-job injury. Remember also that the carrier has its lawyers wherever the tracks run.
Use your FELA Union Designated Legal Trial Counsel to level the playing field. Be wise: get advice sooner rather than later.
The Federal Employers’ Liability Act, 45 USC §§ 51-60, commonly referred to as FELA, was passed by Congress in 1908 to protect the rights of injured railroad employees who were injured while working on the railroad.
As the railroads crossed our nation, Congress realized that railroad work was particularly hazardous and that railroad workers needed special laws to protect them. Such laws were especially needed because railroad employees worked in interstate commerce between the states rather than in just one state, and injury and compensation laws varied from state to state.
Today, after nearly one hundred years of application by our courts, the FELA injury law has evolved into a body of modern law that is state of the art in providing federal compensation rights to railroaders injured on the job without punitive damages. It also produces the desired side effect of making carriers cognizant that FELA requires them to operate safe railroads or stand accountable.
FELA provides certain damages for railroaders, which is the legal term for a particular sum of money. That sum of money is based on several different elements of each individual case. Some of the elements that determine a particular case’s value are listed below. Do not hesitate to call the experienced members of our firm to consult about your damages so we can protect you and your family.
Lost Wages from the Past and for the Future
Loss of Earning Capacity
Type of Injury, the Severity of the Injury and How Long It Lasts
Aggravation of a Pre-Existing Condition
Disfigurement and Disability
Pain and Suffering for the Past and Future
Past and Future Medical Expenses
The bottom line in any FELA claim is the amount of money that a case is worth. No one can restore complete health to the injured person. The law only provides for monetary relief by virtue of a settlement or jury verdict.
If a settlement cannot be reached, then a jury must determine the value of the case after hearing all of the evidence. This means the jury must hear from the injured person, who must be properly prepared as to how to testify in Court, as well as fellow workers who may have witnessed the accident. The jury must also hear from the injured railroader’s doctors and an economist who calculates lost wages for the past and into the future. Trying to reach a fair and equitable settlement is very difficult for an injured person to do with no experience in these matters. Without legal representation, you may undervalue your claim and not receive what you rightfully deserve under the FELA.
To carry the burden of proof under FELA, one must prove the following in order to recover:
1. At the time of your injury, you were engaged in an activity at work that furthered your railroad’s business in interstate commerce. Essentially, you must show you were working to further the carrier’s business between the states.
2. Your injury must be due to the railroad’s negligence in failing to provide you with a safe place to work, proper tools to do the job required, proper equipment, or sufficient help to get the job done.
3. The injury for which you claim compensation under FELA must have been directly caused by the accident you had on the job at the railroad.
To counter your claim, the railroad may seek to demonstrate that you were also at fault, which means 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 may reduce an award to an injured employee by the percent of their own negligence. For example, if an injured railroad employee has a verdict of $1,000,000.00 for lost income and permanent pain because they lost their career and cannot return to work due to the injuries sustained, but the jury finds they are 50% negligent, then a $1,000,000.00 award in court would be reduced in half to $500,000.00.
Two special provisions of FELA deal with the safety of engines and railroad cars. If an injured person can prove the railroad provided defective equipment in violation of either the Locomotive Boiler Inspection Act or the Safety Appliance Act, this constitutes an “absolute liability” claim against the railroad. In either of these situations, a jury is not allowed to consider any comparative negligence on the part of the employee, and a money award by a jury cannot be reduced for employee negligence.
An example of a Safety Appliance Act violation is one where an injury occurs due to a defective handbrake or coupler. Examples of Boiler Inspection Act violations are oil accumulation on an engine walkway, a broken seat, step, or another defective part on an engine that make a locomotive unsafe for its intended use and which results in injury.
Violations of federal regulations under the Federal Railroad Safety Act also create absolute liability against a railroad employer. In essence, if the railroad violates a statute or law and this violation causes injury to its employee, it is totally liable for the damages sustained.
1. Report the Injury to a Supervisor as the Railroad Rules Require.
It is extremely important to report your injury as required by the rules soon after the accident occurs. Include all the details of the accident and never admit to being at fault. The Railroads use any of the statements made in these forms against you during your case. Always keep a copy of the accident/injury report for your records. Make sure not to sign any form that you did not fill out without reading to make sure the facts of the accident are accurate.
2. Seek Medical Treatment Immediately.
It is important to document your injury and have a doctor treat your medical complaints following the accident or injury. Do not delay receiving medical treatment. If you are injured on the job, you may need to go to the emergency room and it is acceptable to follow the Railroad’s medical recommendations at the time of the accident. However, once you receive initial treatment, you should seek care from a doctor you choose. It is not a time to tell the doctor you are feeling “fine.” Always tell your doctor about your injuries in detail, the pain you are suffering, and your concerns about getting better.
3. Start Keeping Your Own Records.
It is important to keep a log with details of your injury and treatment, including your doctors’ names and addresses, hospitals, and clinics, as well as co-workers’ names and phone numbers that were witnesses to your accident. Make sure you include notes on how the injury is affecting your work and personal life.
4. Apply for all RRB and Insurance Benefits.
If you miss work due to your injury, you should apply for all supplemental sickness benefits, including Railroad Retirement Board (RRB) benefits and all private insurance benefits.
5. Hire an Experienced FELA Attorney to Protect Your Rights.
FELA is a very unique area of the law which protects your rights as a railroad worker. The Railroad is hoping that you do not consult or hire an experienced FELA attorney so that they can pay you less than what is owed for your claim. The experienced trial attorneys at Davis, Saunders & Miller. can make sure your rights are protected and provide guidance through the stressful process of being injured at work. Call us for a free, confidential consultation so we can protect you and your family.
The United States Railroad Retirement Board (RRB) will pay sickness benefits to you for a certain time frame when you cannot work due to an injury. The time span for which you can be paid is based on your years of service in the rail industry. You are entitled to receive payments monthly for sickness benefits from the RRB. Ask your union representative for the forms you need, have your doctor sign the forms, then submit them to the RRB. Any monies received by you from the Railroad Retirement Board for sickness benefits must be deducted by the railroad from any settlement or jury award and paid back to the RRB. However, a disability annuity based on an inability to return to railroading after you have worked for twenty years at the railroad will not be deducted from a verdict or settlement.
You have the right to settle your case yourself with the claim agent. It is also your absolute legal right to hire a lawyer to represent you regarding a FELA injury claim. Remember, the nation’s railroads have lawyers representing them in every single state of the union. Likewise, the rail labor unions have designated legal counsel that are experienced FELA trial practitioners to counsel and represent you in court.
If you choose to hire a lawyer, the railroad cannot harass or discipline you or your co-workers, who may have witnessed your accident. To do so would be a serious violation of the strict provisions against such conduct specifically provided in the FELA.
The choice is yours as to whether to settle or try your FELA case. You may choose to settle your case before you go to court during negotiations with the claim department. On the other hand, if negotiations do not offer a fair result, you may choose to take your case to court and try it either before a judge or jury. Your claim may be litigated in either Federal Court or State Court in the State where the accident happened, or the State of your railroad employer’s home base.
Under the FELA, there is a three year statute of limitations that governs any potential injury claim against a railroad. This means that a claim must be resolved directly with the railroad, or a lawsuit filed in the appropriate state or federal court, within three years of the date of the injury. This time period is set in stone, and failure to settle a claim or file a lawsuit in court within this time period will forever bar an injured employee from receiving compensation for his or her injuries.
The FELA three year statute of limitations applies to all injury and illness claims, including cumulative trauma injury claims and occupational exposure claims, such as asbestos exposure or chemical exposure. FELA states that the three year statute of limitations begins to run when the injured railroad worker knew, or should have known through the exercise of reasonable investigation that he or she sustained an injury/illness that was related to the railroad working environment. It is important to know that some courts have held that experiencing symptoms of pain can start the running of the three year FELA statute of limitations – even before a doctor determines a medical diagnosis of the underlying injury.
Because these types of claims do not occur on a specific date at a specific time but instead, manifest over time due to years of repetitive trauma or exposures in the railroad work environment, determining when the three year statute of limitations time period starts and expires requires a detailed analysis of the circumstances of each individual case.
Call the experienced attorneys at Davis, Saunders & Miller to aid you in determining how to calculate how long you have to file a claim.
Hiring an Attorney
If your injury has been relatively minor, with little or no time lost from work, you are probably best served by seeing a patient orientated physician and then dealing with the railroad claim agent directly after first checking with your FELA Union Designated Legal Counsel as to a fair value for your claim.
If your injuries are serious, cause you constant pain, disability, or disfigurement and you are unable to work due to your accident, you would definitely benefit from expert legal advice and representation by an experienced FELA union trial attorney.
You must 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’s claim department is to save the railroad money; this usually means disputing your claim by gathering evidence to counter and diminish it.
Unfortunately, an injury case is not a simple, straightforward matter. Many factors affect the settlement amount or jury verdict. Items such as the amount of lost time, the nature and extent of injuries, and any negligence of the employee must be considered. A FELA union designated attorney experienced in the handling of FELA cases can guide you in properly evaluating these factors.
One thing is certain – without the threat of a lawsuit, the railroad will never voluntarily pay the full value of any significant claim. A great rule of thumb is if you want to operate an engine, you get an engineer; if you want to switch cars, you get a conductor; likewise, when you want someone to protect your legal rights in a personal injury case, you hire an experienced FELA union designated legal trial lawyer.
Can the railroad fire me for hiring an attorney?
It is unlawful for the railroad to fire you for hiring or consulting with a lawyer. In fact, you are more likely to be abused if you do not have a union approved lawyer fighting for you. There are protections in FELA against companies retaliating against workers, but retaliation usually occurs in situations where the employee complaining is not represented.
It is important to protect yourself and your family by calling the experienced FELA lawyers at Davis, Saunders & Miller to handle your case.
Many railroads have a program of light duty employment for injured railroad employees. The program is voluntary and exists in order to get you back to work quickly, ostensibly, for the purpose of easing your financial concerns and enabling the carrier to monitor your medical condition by observing you work after your injury.
If you are thinking about accepting light duty employment, you must keep in mind:
1. Returning to light duty employment may actually make it more difficult to obtain the benefits to which you are entitled.
2. Returning to work before your doctor has given you clearance may endanger your own health, as well as the safety of your fellow employees.
In effect, accepting light duty employment can have serious legal consequences that may substantially reduce your claim under FELA. You will be observed working, but any pain you may experience while working cannot be seen. Therefore, you should refuse all light duty work until you have discussed this option with your doctor, union representative, and your FELA Union Designated Legal Counsel.
The railroads have hired occupational therapists and vocational rehabilitation experts to work between the injured employee and their doctors. They have created these vocational rehab departments to collect information on injured railroad workers to enable the carrier to ultimately direct an injured employee to interview for an alternative job within the company. The job offered is usually outside of your craft and in another state. An injured railroader who cannot return to their craft is often put in contact with a supervisor to barter for a new job with less pay, thereby reducing the carrier’s liability for the full brunt of a future wage claim when a career has been lost due to an on-the-job injury.
Rehabilitation issues are unique to each case and they are so complicated that it is impossible to give a general statement on how to respond to these various programs. Therefore, if you have a serious injury or disability, which may prevent you from returning to your normal job at the railroad, 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 efforts to provide you possible alternative employment in a lesser field.
The Federal law known as the “Americans With Disabilities Act” applies to all private and federal applicants and employees, including railroad workers, who have disabilities. It does not apply to employees who are only temporarily injured while working.
Its purpose is to ensure that qualified individuals with disabilities, who are able to perform the essential functions of the position held or desired, with or without reasonable accommodation, are not denied employment or other opportunities because of their disabilities.
The law prohibits discrimination against a qualified individual with a disability in all aspects of the employment relationship, recruitment, advertising, application procedures, hiring, promoting, rates of pay, etc. It prohibits discrimination against qualified individuals with disabilities merely because they are unable to perform marginal or peripheral functions to the position.
A railroad may be required to provide accommodations, such as job restructuring, making existing facilities used by employees accessible to and usable by employees with disabilities, and reassigning workers with disabilities to equivalent vacant positions for which they are qualified.
It is unlawful for a railroad not to provide reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.
The reasonable accommodation that is required is that qualified individuals with disabilities shall have equal employment opportunities.
Yes. Even in cases where the injured worker is cooperating in every way with the company, the railroad often hires these “spies.” Private investigators have been known to stake out workers at their homes, go into restaurants and sit next to workers and their families, or follow workers into stores in order to take footage to prove the worker is not really injured. If you have been hurt, only do those tasks that your doctor has approved for you. Always assume that the railroad is watching.
The railroad cannot discipline or discharge you for making a legitimate personal injury claim through a lawyer or for bringing a lawsuit in court on a personal injury claim.
The Federal Employers’ Liability Act (FELA) states:
“Any contract, rule, regulation, or device whatsoever, the purpose, intent or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulations, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment for each offense; provided, that nothing herein contained shall be construed to void any contract, rule, or regulation, with respect to any information contained in the files of the carrier, or other privileged or confidential reports”.
“Persons in interest” includes your personal FELA lawyer who is representing you for your on-the-job injury.
Claims agents are not on your side. Their objective is to settle your case quickly and cheaply. If they can get you to divulge information that makes that easier, they will do it. The claims agent has these ulterior motives:
To act friendly and win your trust.
To make tempting offers of wage continuations or advances, which will make litigation less likely.
To direct you to railroad-approved doctors or facilities that will strengthen the railroad’s case, not yours.
Railroad workers are now entitled to file a lawsuit to stop railroad harassment. In 2007, federal law changed to protect railroad workers from harassment by their employer railroads. Specific whistleblower protections for railroad workers (Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109) state that a railroad may not discharge, demote, suspend, reprimand, or in any other way discriminate or discipline a railroad worker who engages in certain protected activities.
These protected activities include:
Refusing to violate a safety law or rule.
Filing a complaint regarding a safety violation.
Reporting a personal injury.
Furnishing information to the FRA or National Transportation Safety Board (NTSB) regarding an injury.
Reporting an unsafe working condition.
Filing a complaint under the FRSA.
Refusing to work when faced with an unsafe condition.
Providing information assisting in an investigation regarding a violation of a safety law or rule regarding railroad safety issues.
The available remedies under this law include the following:
Back pay with interest.
Reinstatement with seniority rights unimpaired.
Attorneys fees and court costs.
Punitive damages not to exceed $250,000.
An employee who alleges discipline or discrimination in violation of this law must file a complaint with the Department of Labor within 180 days of the harassment or discrimination.
It is important to call an experienced FELA/FRSA attorney as soon as you experience harassment at the railroad because the time limit to file a claim is extremely short. Call the experienced attorneys at Davis, Saunders & Miller for a free consultation of your rights under the FRSA.