Know Your Rights as a Railroad Employee

This following information is not intended as legal advice. You should not try to use this very general information as legal advice such as would come from an experienced FELA attorney.

FELA is short for the Federal Employer's Liability Act. This Act was passed by congress to promote safety and insure that the terrible toll of injuries and deaths suffered by railroad workers did not occur without a just remedy for the injured worker or his survivors.

It is our hope and purpose that this information will in some way help fulfill the worthy purposes of the FELA.

The Federal Employers' Liability Act (FELA)

FELA was enacted by Congress in 1908 to give railroad workers the right under Federal Law to recover damages from their employers for injuries incurred at work. Congress has since amended the Act, and the Courts have since interpreted it to give the worker broader rights and more protection.

The Act says that the railroad is liable for any employee injury or death caused in whole or in part by the company's negligence or because of any defects or insufficiency due to its negligence in the work place, cars, equipment, etc.

You may bring an action, triable by jury, in either the State or Federal courts. The Courts have interpreted the Act to mean that negligence of the company which plays any part, no matter how small, in causing your injury is sufficient for recovery.

Three factors must be present for you to collect damages against your employer under FELA.

A. You must be injured while in the course and scope of your employment. This doesn't mean that you must be on railroad property, or actually working, when injured. In general you are protected at any place, off or on railroad property, where your employer sends you.

(Exceptions: You may be covered by another law when you work on docks, wharves or on navigable waters or when working outside the U.S.)

B. The railroad must be engaged in interstate commerce. This issue is rarely raised as almost all work is done in furtherance of interstate commerce today.

C. Negligence on the railroad's part played some part in causing your injury.

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Negligence (Carelessness)

There must be proof that the railroad's negligence caused or contributed to your injury. Quite simply, this means that the railroad must use reasonable care for your safety.

The railroad must provide a reasonably safe place for you to work. Failure to do so is negligence. This includes furnishing reasonably safe tools and equipment; selecting proper work methods; providing sufficient help; and adopting and enforcing proper procedures.

The railroad may also be negligent if it fails to adopt and enforce safe rules and practices. Negligence may result from allowing unsafe practices and customs to exist. The fact that such practices and customs are standard in the industry is no defense. If a safer method, custom or practice would reduce or eliminate the risk of injury, the railroad would be negligent if it continued an unsafe practice merely because it had been done that way for years.

When you take your claim to court, you have only to show that the injury was caused in part by the railroad's negligence. Even if you are at fault to some extent, it does not defeat your claim entirely. You will still win your case if you can show that the railroad or any of its employees, its equipment, or your working conditions were in part, responsible. Your own negligence, where it exists, can only be used to reduce the amount of money you will win.

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Safety Appliance Act and Locomotive Inspection Act

The injured worker has further protection under the Safety Appliance Act and Locomotive Inspection Act.

The Locomotive Inspection Act requires the railroad to keep its locomotives and tenders in proper condition and safe to operate. A violation of this Act imposes absolute liability on the railroad. You do not have to prove negligence to hold the railroad liable under this Act.

The Safety Appliance Act covers railroad cars and their safety devices. If an accident is caused by defective appliances, such as couplers, power brakes, grab irons, draw bars, ets., you do not have to prove negligence to recover from the railroad.

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Collect All Of It

After you establish your claim by showing that the accident was caused by the negligence of the railroad, in whole or in part, how much are you entitled to? The answer depends on the nature of your injuries, and upon certain other facts:

A. The more serious and the more permanent your injury is, the more money you may be entitled to recover.

B. The amount you have spent or will have to spend in the future for medical treatment.

C. The amount of wages you have lost, and the wages you may lose in the future.

D. An amount to compensate you for the pain and suffering you have endured or will have to endure in the future.

Unless your injury is minor, you will find that an informed appraisal of all past and future losses and damages for pain and suffering cannot be made without the aid of a competent FELA attorney. His training and experience allow him to assess your medical information and how your medical disability relates to your future earnings. He is skilled in negotiating with railroad attorneys to achieve a fair settlement for you and your family.

A competent and caring attorney will also help you obtain the best medical care available.

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Getting Back to Work

If physically possible you will definitely want to go back to work. Most injured workers are able to go back to their former work. Also if you are injured again or if you aggravate your previous injury, you may then have a new claim, even though the first claim may have been settled.

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Don't Wait Too Long!

Under FELA, the injured employee must bring a lawsuit within three years from the time of the accident. (Exceptions: Exposure to toxic materials, such as asbestos.) Otherwise any claim is barred by the Statute of Limitations. This doesn't mean that you should wait three years before you seek legal advice!

Often an injured employee without an attorney cooperates freely with the claim agent in supplying statements and medical information, only to find that a fair settlement is not forthcoming. The delay may make it very hard for your attorney to properly investigate and get the kind of settlement possible had he been retained earlier.

Therefore, it is recommended that you should seek advice as soon as possible from a competent FELA attorney. You can then avoid pitfalls that would make a settlement more difficult or impossible.

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You Can Go to Court

Under FELA, you can bring a claim in either a State Court or a Federal Court, whichever suits you better. You are entitled to a jury trial.

You may bring your claim in these courts in any city into which the railroad runs or has branch lines or even where the railroad has no tracks but has an office for the doing of any business.

Your right to choose the place and court where you bring your claim is an important right. You can sue in courts located in the larger cities where jury awards are usually larger than in rural areas. Also, workers who are members of a minority group are more likely to get a fair hearing in the bigger cities. An experienced FELA attorney will be able to advise you as to the most beneficial place to file your lawsuit.

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Accident Report

All accidents should be reported as soon as possible according to the safety rules of most major railroads. Often the worker, when injury occurs, thinks the injury is a minor one and, hoping the pain will go away, he does nothing about it. The accident goes unreported and the injury untreated.

Following this practice may have two serious and adverse consequences. It may subject you to discipline and even dismissal. And, if the injury gets worse and you wish to make a claim, there is nothing to document that the injury occurred on duty.

When an injury occurs, your first and immediate necessity is to obtain medical attention. After that, as soon as you feel physically or mentally able, you can make an oral and written report of the accident.

When you fill out the accident report, take care to be as accurate as possible. The forms are designed so that if you answer without proper attention to detail, it may appear that there was no fault or negligence on the part of the railroad, when in fact there may have been some. Make certain that whatever negligence is involved is mentioned somewhere on the form. You are also entitled to have your Union representative present, or even an attorney, when you make out and sign your report.

In any event, you should never allow the railroad claim agent or supervisor, by promise or pressure, to write anything in the report that isn't true and correct. Always ask for a copy of anything you sign. You are entitled to a copy of any statement and or report you may give.

If you have any questions at all concerning your rights, you should contact an FELA attorney for advice as soon as possible, even though you may not have decided at that time to hire an attorney. Some FELA attorneys will be willing to advise you of your rights without charge and without being retained.

The attorneys at Kaplan Law Corporation are always happy to counsel and advise you without charge, even if you decide not to hire them to represent you. Remember, even minor injuries today may result in losses of thousands of dollars. Most workers and their families can't afford such losses.

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The Claim Agent

When you are injured, a claim agent for the railroad will try to obtain a written statement from you, usually right away. The agents are experienced and thoroughly familiar with FELA. Their basic job is to save the railroad money and keep settlements for injuries as low as possible. They often use language in the statements that you world not ordinarily use. They may phrase your statement in such a way that the company does not appear to be at fault. The fault for the accident may appear to be yours only. Or, they may describe your injuries in the statement so that important omissions complicate your claim at a later date.

Unfortunately some union contracts require an injured employee to provide the railroad with a written, signed statement as soon as possible. Contact your local or general chairman of your craft for advice if the accident form is unclear or if you feel you are being pressured in anyway.

Often claim agents are congenial and pleasany and inspire confidence in the people they work with. He may plead with you for an opportunity to settle the case without an attorney being involved. Unfortunately this gives the claim agent an opportunity to make a detailed investigation of the case at his own pace and leisure. He can obtain all the medical information and more or less control all aspects of your case, including early medical treatment…perhaps to your detriment. His training and experience give him an insight into what your future may hold by way of disability and loss of capacity to work and all the other factors involved in a fair settlement.

Under these circumstances, it is extremely difficult for a railroad worker, untrained and inexperienced in legal matters, to know whether or not this settlement offered by the claim agent is fair.

How can you know for sure if your disability is progressive, or if it has further consequences that might entirely change the picture in six months, a year , or later? Have you even been seen and evaluated by a medical expert who is not being controlled or paid by the railroad?

Some railroaders, by training and experience, are able to deal with this type of opposition without help. Some have tried and done well at it. Many have tried and failed. If you feel you can successfully deal with the railroad, its claim agents and lawyers. Then much of what is written here will hold little interest for you. If you are wrong or are uncertain, the decision you make will have a tremendous impact on the amount of money you and your family will receive for your injuries. If you should underestimate your injuries or disability, it will be the only chance you have, because the case is closed once a settlement is made.

Beware, particularly, of the claim 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?" This is not an uncommon statement. Anyone who deals with claim agents will hear it sooner or later.

Now when a claim agent asks that question, who do you suppose he is really thinking of-you, or the railroad? Is he really trying to save your money or the money of the company he is employed by? The truth is, the railroads don't want you to retain a lawyer. They know you will probably get more money for your claim if you do. The railroad will consult its own lawyers need a lawyer. They keep the advantage in this way.

Of course it will cost money to be represented by a lawyer. A lawyer can't work for free, anymore than you can. However, most competent and professional FELA attorneys work on a contingency fee basis. Only when money is obtained for you does the attorney get a fee.

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Who is Your Doctor?

When you are injured, you will be sent by the railroad to "company doctors." The railroad will often say it is not responsible for any injury unless you go to a company doctor or hospital. This is not true.

Where there is a hospital association, and the association rules require you to get medical treatment there, it is true that the association may refuse to pay for care elsewhere.

In most cases however, the unions have medical and hospital coverage with United Healthcare as a fringe benefit. Under the United Healthcare policy, you can select any doctor or hospital you desire, and United Healthcare will cover such treatment to the extent of the policy.

Generally, if you need medical attention, it's best if you see your own doctor. If you don't have a family doctor, it's better if you see a doctor who is not associated with or paid by the railroad. Ask your local or general chairman or other union members to recommend a doctor, or seek advice from an FELA attorney who will be able to refer you to a medical specialist.

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Do You Need a Lawyer?

You may fear that the company may retaliate or bring pressure on you or even fire you should you employ a lawyer to bring your claim against the railroad. Claim agents may encourage this feeling on your part. You have an absolute right to bring an action against the railroad for injuries under FELA, and you have the right to obtain the services of an attorney in so doing.

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What About Your Pension Rights?

In any settlement, it's important that you know and understand the effect of the number of compensated months of service you have. This is shown on the U.S. Railroad Retirement Board's card, which applies to pension rights. A certain number of months of past and future employment may be necessary to protect your pension rights. Your attorney may see to it that the company allocates and credits you adequately, so that your pension rights are protected.

Obviously, it is always better for you to return to work so that you may function as a useful member of society. But if your physical condition is such that returning to work would cause further disability and suffering, it is even more essential that you obtain a competent FELA attorney. Justice requires a proper award for our injury and a recovery sufficient for you to live out your life in dignity and comfort.

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Can't Fire You Without Cause

Some railroad workers hesitate to consult a lawyer abut their claim. They fear that the company can put them out of service or discriminate against them in other ways if they engage a lawyer to press their claim. This is false.

The fact is that the Federal Employers' Liability Act forbids the carriers to engage in such practices. The Act is very clear and strong on this point. The Act spells out your legal right to get the advice of a lawyer. It states:

"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 (your lawyer), or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing such information to a person in interest, shall, upon conviction thereof, be punished, by a fine of not more that $1,000 or imprisonment, for not more than one year, or by both such fine and imprisonment for each offense."

The railroad employee should be cautioned that the above applies to the right of retaining counsel, and does not provide blanket protection if the employee makes false statements, is insubordinate, or otherwise violates company rules.8 Advice and counsel of a lawyer are your best guarantee that your claim will be properly evaluated, properly handled, and properly presented. As a result, the largest payment or settlement will be obtained.

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What if I'm a Witness?

It is unfortunate when a serious accident involving injury or death is unwitnessed because the worker is working alone at the time. Even more unfortunate is where co-employees have witnessed an accident or know of facts that could be critical to the worker's case and refuse to become involved. They may feel that to step forward and be counted threatens their job or that the company might retaliate in some way. Such fear is without foundation.

The FELA specifically prohibits threat or intimidation of any person who volunteers information or testimony. Furthermore, anyone who discharges or otherwise attempts to discipline any employee for volunteering information to an injured party can be fined up to $1,000 or imprisoned for up to one year, or both! If you witness an accident or know of facts that will help a fellow worker's case, let hem know so that his attorney can obtain the information from you. Next time you could be the one who needs help!

You may also be contacted by company representatives. If you have already given a statement, get a copy of that statement for the company rather than give another one. You then avoid differences in statements due to the use of different language or phrasing.

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Should You Sign a Release?

When you settle a claim with the railroad, you will be required to sign a release before receiving payment of the money. A release is a final statement between the parties. In accepting the settlement and signing the release, you give up any and all claims you may have against the railroad arising from that injury. Generally, once a release is signed, it is final. No further claim can be made even though the injury becomes much more serious than anticipated.

It is extremely important that you understand that when you sign a release, you may be forever waiving any right you may have to recover for injuries from an accident. Inadequate settlements made too soon after an injury occur much too frequently. Often a worker realizes too late the significance and seriousness of the injury and therefore suffers great injustice.

Very seldom can releases be set aside. When an injured worker has been defrauded by misrepresentations of a claim agent or by the doctors employed by the railroad, it may be possible to set the release aside. However, to avoid the injustice that occurs from improvident settlement made too soon, you should consult an FELA attorney before entering into a settlement or signing a release. The attorney can then evaluate the settlement and determine whether the amount offered by the company truly compensates you for your injuries.

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Know Your Rights!

Finally, it should be repeated that in order to determine how much money will fairly and adequately compensate you for damages suffered in a railroad accident, a comprehensive knowledge is required of the law, of the medical aspects of your injury and disability, and of all the factors that go into arriving at the probable amount a jury would award.

Only a competent and experienced FELA attorney is capable of advising you if a settlement offer is fair, adequate, and just. No substantial settlement should be accepted without that advice.

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