Railroad Q&A: Spotlight on FELA

 

When do I need to report a personal injury?

Many workers fail to report an injury because they feel pressure to not get hurt at work and believe that the injury “will be ok in a few days.” When it worsens after a day or two, causing the worker to finally seek medical attention, the railroad disciplinary and formal investigation process will begin to work. The worker will be formally charged with failing to report the injury and falsifying a claim in order to get money.

The best approach is to file an injury report, even if you are unsure how badly you are hurt. Even if you do not need to seek medical attention, you have complied with the rules and protected yourself in the event that the symptoms worsen or intensify with time. The railroad will not usually respond negatively to an injury report until it becomes "FRA reportable," and the act of completing the injury report does not, by itself, make the injury reportable.

Railroads have been notorious for abusive practices including the Discipline of employees for merely filing an accident report or reporting a hazardous condition. All of that, however, is now changing rapidly. The Occupational Safety and Health Administration (OSHA) now administers a unique Law known as the Whistleblower Law which Congress passed as a special amendment to the Federal Rail Safety Act just a few years ago. The Whistleblower Law provides job protections for rail employees who report personal injuries, testify on behalf of others who are injured, ,  or who report dangerous conditions on railroad property. In a nutshell, the Whistleblower Law provides strong additional remedies, above and beyond the normal remedies of the Federal Employers Liability Act. These remedies include back pay,  expungement of a railroad workers personnel file which has been wrongly charged with demerits, job reinstatement, and in egregious cases of bad faith by the Railroad, punitive damages. In all successful cases,  attorneys fees can be recovered for filing a Whistleblower claim.


Back to Top

 

Does the railroad really engage in video surveillance of injured workers?

If you are injured at work, it is possible that the railroad police or a private investigative firm may be hired to record your activities. This usually does not happen, but it certainly has happened in the past and is still no uncommon. Most surveillance occurs when the claims agent does not believe that the worker is badly injured, or if he refuses to see the Railroad's chosen doctor. Sometimes, the railroad will engage in surveillance at a point closer to resolution of the case (or close to trial) if they think they can demonstrate that the worker is actually capable of physical activities that he is claiming have been curtailed or eliminated. In cases of honestly reported injuries, these attempts almost always backfire on the railroad.


Back to Top

 

Do I need a lawyer to represent me in my FELA case?

The answer depends on the seriousness of your injury and the complexity of your case. At a minimum, you should speak to an attorney designated by the union for his skill and expertise in the area of FELA law. At Roven-Kaplan, L.L.P., LLP, we are happy to consult with a railroad worker free of charge and help him decide if he needs a lawyer or not.
Back to Top

 

Where can I verify Roven-Kaplan, L.L.P.’s reputation and peer reviewed status?

Go to www.lawyers.com or to the Martindale -Hubble website to see our full profiles and ratings.  We are proud of our A-V Rating, which represents the highest professional and ethical rating by ones peers. We are also member of the Academy of Rail Attorneys. See www.arla.org for information on this professional organization dedicated to the rights of injured rail workers.


Back to Top

 

If I work for a railroad, can I call Roven-Kaplan, L.L.P. for other matters, including other types of cases?Yes. We do almost exclusively serious personal injury law, with an emphasis on FELA cases. We also handle other serious and catastrophic cases involving cars trucks. We are also glad to help family members and close friends with their personal injury cases. Regardless of your situation, we are glad to help you if we can and refer you to a competent lawyer in your area.


Back to Top

 

If I have an RRB benefits or insurance problem or question can I get help?

Yes at Roven-Kaplan LLP, we will help anyone who calls with benefits, insurance, or RRB questions. Providing this service is simply part of our commitment to our rail clients.


Back to Top

 

Does every case get filed?

No, but many do. In cases of active railroad workers who have been injured, we have found that settlement negotiations are usually more productive for our clients after a law suit is actually filed and pending. The suit puts pressure and deadlines on the railroad making them more responsive. In some cases, however, particularly those involving retirees where the likelihood of trial is small, the filing of a lawsuit may not be necessary. In limited, it depends on the case, the railroad, and the injury. We discuss all of these dynamics with you before we make that determination.


Back to Top

 

If I am retired and I file a lawsuit or a claim, can it affect my pension?

Absolutely not. Your railroad retirement pension is funded through the United States government and not the “railroad”. In more that 25 years of practice, none of our retired clients have ever had their pension benefits interrupted or affected in any way.

 


Back to Top

 

Do clients get charged for phone calls and the lawyers’ time?

No. Roven-Kaplan LLP works strictly on a contingency fee basis, and do no charge for phone calls, copies or any other office overhead items whatsoever.


Back to Top

 

If I go on RRB disability, can I still have an FELA case?

Yes at Roven-Kaplan LLP, we will help anyone who calls with benefits, insurance, or RRB questions. Providing this service is simply part of our commitment to our rail clients.


Back to Top

 

How do sick benefits affect my FELA case?

Just like disability benefits, sick benefits also have no impact on your FELA case. Sick benefits must, however, be repaid out of your settlement but only if you received those sick benefits for the very injury you are claiming in your suit


Back to Top

 

What if I took a “buyout” when I left the Railroad and signed a paper saying I wouldn’t sue them again…can I still file for occupational disease that appears later?

The FELA law protects you from losing your rights in this situation. Money you were paid in a “buyout” was paid in lieu of wages and was taxed. Personal injury settlements are not subject to federal income tax. Therefore, the Courts have found that the Railroads are barred from claiming that a simple seniority buyout constitutes a Release of all claims when it was intended to merely buy out wage and seniority rights.


Back to Top

 

Is the FELA better than worker’s compensation?

Yes, in almost every case, the FELA is better than worker’s compensation. Under the FELA, you can recover for lost wages, past and future, lost benefits, including health insurance and pain and suffering. There is no predetermined schedule of payments or cap on the damages. The only caveat is that punitive damages are not allowed under the FELA. It is strictly a compensatory damages statute. Don’t forget, however, that the FELA is a fault-based statute which makes it different from workers compensation.
Back to Top

 

What if I get hurt in a van or hotel, or on the property of another industry while on company time? Do I still have a FELA case?

Yes, in almost every situation you do. Under the Supreme Court=s interpretation of FELA, a railroad must provide a reasonably safe place to work, regardless of where your job takes you.  This is true even if you are a crew member assigned sleeping quarters in a private hotel arranged for by the railroad. . In that case, the private hotel or motel Astands in the shoes of the railroad and must provide you with a reasonably safe environment. If not, the railroad remains liable for the hotel/motels negligence under FELA.


Back to Top

 

What are some common mistakes railroad workers make when they are injured?

Most common mistakes include:

1.      The worker does not promptly report his injury because of pressure from supervision, or he fears retaliation and is unaware of the protections provided under the new OSHA Whistleblower laws. If he reports later, he is accused of either falsifying the report or charged with failing to report the injury timely.


2.      He forgets that he must demonstrate negligence in order to recover from the railroad and does not concentrate on noting the time, circumstances and/or names of witnesses who may have seen the injury, or who may have critical facts about why the injury occurred.

 

3.      He forgets that the railroad=s Claim Representative is paid to represent and protect the interests of the company, not the worker.

 

4.      He fails to discuss with his spouse what to do in the event of an emergency or work place injury.

 

5.      He gives a recorded statement to the Claims Department before consulting with qualified legal counsel or his labor representative.

 

Back to Top

 

 

The Roven-Kaplan, L.L.P Team