Accident Reports
by: Jay A Kaplan
Did you know...
that under the General Rules of most railroads, you are only required to fill out an accident report? You are NOT required, under the rules, to give the railroad claims agent either a written or tape recorded statement even though they may likely give you the impression that you are. The reason that the railroad and their claims agents are so eager to take a statement from you is that they are asking you questions posed originally by their attorneys for the sole purpose of severely weakening your case while bolstering their own.
Generally, the claims agent will work from a standard outline originally prepared by the Company's attorneys containing certain standard phrases designed to eliminate all possible fault or wrongdoing on the part of the railroad. For example, the claims agent may attempt to get you to agree to sign a statement stating that "the lighting was good", or "adequate", or that there was no "slip, trip or fall", or that there was "nothing unusual about the machinery, tools and equipment", or that there were no "defects" in them, or that there was "no grease, oil or debris" in the area, or on the equipment where you may have slipped or fallen. The claims agent may attempt to get you to admit facts, which although seeming innocent or insignificant enough to you, are really designed to get you to unwittingly place the blame for the accident completely on yourself. The claims agent also may appear to act as though he is your friend who is there to take care of your concerns, but remember, he gets his paycheck from the railroad and his main job is to keep down the Company's payout on claims, and to keep you from obtaining legal advice. From the railroad's point of view, your ignorance is their bliss.
In fact, in all of the years that I have been representing injured workers and their families, I have never seen a statement taken by a claims agent that helped the injured man, but hundreds that have hurt them. Because the majority of railroaders have been fortunate enough never to have been injured while working at the railroad, they may not realize that it is the claims agent's job to attempt to put words in their mouth or to try to get the employee to agree to facts which will defeat his or her claim or make it appear that their injuries were all their own fault. So effective are the claims agents, in many instances, at manipulating claimants, that I have seen huge blow ups of a claimant's statement presented by the railroad as an exhibit at trial for the sole purpose of trying to persuade a jury that the accident was entirely the fault of the injured worker and, therefore, no money whatsoever should be awarded for their injuries or damages.
Another favorite device of many claims agents is to deliberately misspell several words throughout the statement and then direct your attention to them and ask you to correct and initial them. This is done so that later on you cannot say that you didn't really read through the statement carefully before signing it, or that if you remember something else later on that isn't in the statement, the railroad will attempt to suggest at trial that you are now lying about this new information because you did not include it originally when you had the chance and the entire incident was presumably most fresh in your mind.
Further, remember that although unlimited wage loss or damages can be claimed in FELA cases, unlike the inadequate compensation system covering Worker's Compensation cases, railroad workers must also, however, prove negligence or fault, whereas workers covered by State Worker's Compensation only require satisfactory evidence that the worker was injured while in the course and scope of his or her employment. Consequently, it becomes the claims agent's job to undermine your claim - both by attempting to undercut the damages, as well as eliminating any possible basis of fault or negligence on the part of the railroad. Because the written or taped recorded statement of the injured worker is so critical to the railroad's strategy of significantly limiting the value of the employee's claims, they, on many occasions, will resort to certain tactics to obtain it. For instance, the claims agent may state that before he or she can advance any money to the injured employee, company rules dictate that they must have a statement, or that to prevent other employees from being injured in a similar way, for "humanitarian reasons", they need a detailed statement of what occurred or what the injured employee did wrong so as to "prevent it in the future".
The bottom line is, if you are injured, on most railroads, the only form you must fill out is the Accident Report and only as soon as you are physically and mentally able to do so. If you have suffered an accident and have given the claims agent a statement, you should not assume that you have lost your case, done irreparable harm to it, or acted so "stupidly" that you are embarrassed to seek advice. Please remember that the claims agent has been schooled in these procedures and engages in this conduct on a daily basis whereas you haven't and it is his or her job to attempt to gain your trust and to potentially exploit your unfamiliarity with the system. In most instances, through the investigation that our office undertakes, as well as the deposing and cross-examining of witnesses, we are able to rehabilitate one's case. Certainly, though it is significantly more beneficial to your case never to give a statement and in that regard if the railroad claims agent pressures you to give him or her a written or tape recorded statement concerning your accident, you should decline to do so or state in the alternative that you wish to have an attorney present. If you find yourself being pressured to give a statement and wish any advice in this regard, please feel free to call us on our national toll free telephone number (800) 5-KAPLAN and we will advise you at no obligation as this is one of the services we provide as Union Approved FELA attorneys.
JAY A. KAPLAN
KAPLAN LAW CORPORATION
Union Approved F.E.L.A. Attorneys
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