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Railroad Injury Blog

Could Some Railroads Soon Be Immune from Lawsuits?

Wednesday, May 23, 2018

Recently we have heard from several railroaders about the potential for state-affiliated railroads to be granted immunity from lawsuits, including Federal Employers’ Liability Act (FELA) and Federal Railroad Safety Act (FRSA) claims.This is in response to a recent decision from the United States Court of Appeals for the Third Circuit, holding that New Jersey Transit is an arm of the State of New Jersey, and is therefore entitled to immunity from lawsuits under the 11th Amendment to the U.S. Constitution.That case was Karns v. Shanahan, 879 F.3d 504 (3d Cir. 2018). The Karns decision could have negative implications for state-affiliated railroads across the country, such as Metro-North, PATH, and Amtrak.

The Karns case is being appealed, and will hopefully be overturned. Our firm is working to overturn Karns by establishing a strong record in lower courts, so it is important to bring claims forward now. However, if New Jersey Transit’s argument is accepted, it will mean that the most dangerous commuter railroad in the country (according to FRA data), will be able to avoid liability for the injuries and deaths that it causes. In 2016, the Associated Press reported that, “NJ Transit had a significantly higher accident rate…than the rest of the nation’s 10 largest commuter railroads.”The railroad would also be immune from actions to enforce collective bargaining agreements under the Railway Labor Act. As a result, the railroad would not have the incentive that is created by lawsuits to improve safety. This lack of incentive to improve safety would make injuries and deaths on the railroad more likely, both for employees and the traveling public.

In 1989, the same court that decided Karns held that New Jersey Transit did not have 11th Amendment immunity. That case was Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). Hopefully other courts that decide this issue will recognize that the Fitchik decision was the right one.The consequences of deciding that New Jersey Transit and other state-affiliated railroads are immune from suit would be dire. It would essentially exempt these railroads from federal laws and regulations, not just the FELA and FRSA.  Employees will no longer be protected by OSHA, or wage and hour laws. The railroads would no longer be bound by the Americans with Disabilities Act, Federal Civil Rights laws, Federal Highway Safety Administration regulations, and Federal Railroad Administration regulations. These laws and regulations are intended to protect railroad employees, passengers, and those who live and work near where the railroads operate.  The potential for catastrophe is obvious, and thousands of railroad employees could lose their right to recover for their injuries.

These issues have not yet been conclusively decided, but they could be soon.  If you were injured by your railroad employer, or retaliated against for reporting an injury or making a safety complaint, it’s important to act quickly to protect your rights and contact an attorney knowledgeable in these areas of law.

Your Rights Under the Locomotive Inspection Act, a Helpful Tool in FELA Cases

Wednesday, May 09, 2018

When we meet with railroad engineers, they have often heard of the Locomotive Inspection Act, and ask what additional rights it provides to engineers (or any railroad employee injured on the locomotive engine). The Locomotive Inspection Act (originally called the Boiler Inspection Act) requires that railroads maintain their locomotives in a condition that is safe to operate. When they don’t, and an employee is injured because of it, the injured employee does not need to prove negligence by the railroad as part of their FELA claim.The employee only needs to prove that he or she was injured because of the railroad’s failure to maintain its locomotive. This is called strict liability. In addition, the railroad is denied any comparative negligence defense in the FELA claim. This means that even if the employee was partly at fault for the injury, the railroad is still responsible for the plaintiff’s full damages.The railroad cannot argue, as they often like to do in FELA cases that the employee’s violation of a safety rule caused or contributed to the injury.

Some examples of hazardous locomotive conditions that can result in strict liability for the railroad include slipping hazards such as grease, broken lights providing insufficient illumination, malfunctioning brakes, broken chairs, and broken grab irons. If you are ever injured on a locomotive engine, it is especially important to look around your surroundings to determine if there were any unsafe conditions on the locomotive that contributed to your injury.If so, it may be much easier for you to hold the railroad accountable in your FELA case.

Call or email me with questions:

H. David Leibensperger

hdavid@bsgfdlaw.com

(410) 769-5400

Proving FRSA Retaliation is Not as Difficult as You May Think

Tuesday, March 27, 2018

At the railroad union meetings we attend, we are often asked how it is possible to prove that a railroad is unlawfully retaliating against an employee for reporting an injury or safety complaint. After all, the railroad always gives a supposedly legitimate reason for its discipline. But it’s not as difficult as you might think to prove that the railroad is lying, and that the reason it gave for the discipline is just a pretext to punish you for reporting an injury or safety condition.

The United States Department of Labor and its Administrative Review Board are responsible for ruling on many FRSA whistleblower cases. Here’s what they recently said about proving discrimination: “We have said it many a time before, but we cannot say it enough,” all the railroader needs to prove is that the protected activity of reporting an injury or safety complaint, “alone or in combination with other factors, tends to affect in any way the outcome of the [disciplinary] decision.’” Palmer v. Canadian National Railway, ARB No. 16-035, slip op. at 56 (ARB Sept. 30, 2016). The Administrative Review Board stated that it wanted, “to reemphasize how low the standard is for the employee to meet, how ‘broad and forgiving’ it is.” Even if your protected activity of reporting an injury or safety complaint played only “an insignificant or insubstantial role” in the discipline, that is still enough. Also, if your protected activity and the employer’s given reasons both played a role, “the analysis is over and the employee prevails....”

What this means is that, even if the railroad had a “good” reason to discipline you (usually some trumped up charge), the railroad is still liable for discrimination if your protected activity played any role at all in causing the discipline. We don’t have to prove that your injury report or safety complaint was the only reason the railroad disciplined you; we just have to prove that it was one of the reasons, even an insignificant one.

For assistance with railroad injury cases please contact H. David Leibensperger

 



A Railroaders Right to Prompt Medical Treatment When Injured on the Job

Wednesday, January 31, 2018

I wanted to write this blog post because we regularly see clients who are injured while working for the railroad, but are then precluded from receiving medical treatment because railroad management keeps the employee on the property for hours and hours while a manager is called to come interrogate them.  In one case, an employee who was bleeding from his head was required by management to tie down his equipment before they would let him leave the property.  This is wrong; it shouldn’t happen.  But thankfully, the Federal Rail Safety Act, the FRSA, protects these employees.  The FRSA requires that a railroad promptly take an injured employee to receive medical treatment – if requested.  That is the key – the employee must actually request medical treatment in order to be entitled to receive it.

Clear Language About Injuries in the FRSA

The FRSA is very clear, “[i]f transportation to a hospital is requested by an employee…the railroad shall promptly arrange to have the injured employee transported to the nearest hospital….”You have an absolute right to be taken to the hospital when you request it.  Also, a railroad “may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment.”  That means the railroad can’t stop you from getting medical attention – or even delay it. Arguably, railroads that require employees to remain on property while a manager is called to conduct an “investigation,” are in violation of the FRSA and should be punished accordingly.

You Must Ask For Medical Treatment

We regularly see clients who are discouraged by the railroad from seeking medical treatment – this is also potentially a violation of the FRSA.  Unfortunately, we also see clients who don’t advocate for themselves and ask for medical attention.  Because of the protections of the FRSA, railroad employees should feel free to seek needed medical treatment, and request transportation to a hospital when necessary.

A railroad who denies or delays medical treatment to an employee may have to pay for that employee’s pain and suffering, as well as punitive damages and attorneys’ fees.  But it’s important to act fast, because you only have 180 days from the delay or denial of medical treatment to file an FRSA claim.  If you are injured on the railroad, it is important to consult with a knowledgeable attorney right away so that your rights under the FRSA are protected.

A Railroader’s Right to Medical Treatment

Tuesday, October 24, 2017

Injured railroad employees often ask a similar question: Do I have to use the railroad’s doctor for my medical treatment? The answer is simply: no. You can and should use the doctors that you choose, and you do not have to see any doctor recommended by the railroad.

Use The Doctor You Want When Injured

Importantly, you should inform your doctors that although you were injured at work, this is not a workers' compensation case. In workers’ compensation cases, employers and their insurance companies have a greater say over the employee’s medical treatment – this is NOT the case for railroaders. That’s because railroaders are not covered by state workers’ compensation laws, they are covered by a federal law called the Federal Employers’ Liability Act (FELA). As a railroader, your doctors are NOT required or allowed to share any information about your case or medical condition with the railroad.

True Privacy in Medical Treatment

In addition to your right to see your own doctor, the railroad is not permitted to interfere with your medical treatment. The Federal Railroad Safety Act (FRSA) says that the railroad cannot discipline you, or even threaten to discipline you for requesting medical or first aid treatment. The railroad also cannot punish you for following the orders of your doctor. If you are following the orders of your doctor, and need to request time off from work for an injury or illness, you should let the railroad know that it would be unsafe for you to work in such a condition. Due to a case decided by the United States Court of Appeals for the Third Circuit, for railroaders living in Pennsylvania, New Jersey, and Delaware, these provisions of the law apply only to work-related injuries and illnesses. For everyone else, these protections apply whether your injury or illness is work-related or not.

FRSA Speeds Up Your Urgent Medical Care

Lastly, the railroad cannot interfere with your need for prompt medical treatment if you are injured on the job. The FRSA makes it illegal for the railroad to even delay medical or first aid treatment for a work-related injury. The railroad certainly cannot prevent you from obtaining medical treatment. If you request that the railroad provide you transportation to a hospital, the railroad is required to “promptly” have you transported to “the nearest hospital.” The railroad cannot choose your doctors for you, and they cannot drive past a close hospital so they can take you to their doctor. When it comes to your medical treatment, you are the one who gets to decide, not the railroad.

Are You Being Targeted by a Railroad Double Standard?

Tuesday, August 29, 2017

It happens a lot around the railroad – double standards.  Jeff seems to always get away with wearing jewelry, but suddenly I’m the one getting busted!  Kevin’s absenteeism is much worse, but I’m the one being charged! There’s always someone hiding in the bushes watching me, but no one ever seems out to get anyone else! It’s because the railroads frequently punish employees who report injuries, hazardous safety conditions, or try to comply with their own doctor’s orders (which may include time off from work).

Protection of the FRSA

The Federal Rail Safety Act (“FRSA”) was designed to protect against exactly this kind of behavior.  The FRSA safeguards employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a safety problem, refuse to do unsafe work, or comply with a doctor’s orders, among many other things. This is called “protected activity.” A railroad who knows an employee has engaged in protected activity cannot punish the employee by suspending them, terminating them, or discriminating against them in any way.

When Railroads Violate the FRSA through "Disparate Treatment"

An effective way of proving the railroad has violated the FRSA, is showing the railroad applied a double standard to you. This is known as “disparate treatment” – that the railroad treated you more harshly than others who did the same thing. Often railroads will find any excuse to fail an employee on an efficiency test to punish them. The railroad then uses the trumped up charges from the efficiency test to suspend or terminate the employee.  If other employees were not punished for the same conduct you were punished for, or if they were punished less harshly, this is good evidence the railroad has violated your rights under the FRSA. So if you find yourself thinking: everyone else is doing it; why am I being punished? It may be because the railroad is illegally retaliating against you.

What To Do Next

If should you have any questions regarding a double standard being applied to you, please not hesitate to contact our office for a consultation. Please visit our website or download our railroad worker smart phone here.  You can also reach us directly by calling 800-248-FELA.


Uphill Slow, Downhill Fast. Profits First and Safety Last

Tuesday, August 22, 2017

The New Corporate Strategy at Harrison's CSXT?

It had been my privilege to represent railroad employees for the last quarter-century. During that time, numerous safety improvements have been made almost universally across the railroad industry. I feel strongly that the Federal Employers Liability Act has been the driving force behind those changes. The recent tragedy involving two young CSXT conductors struck and killed by an Amtrak train outside Washington, DC illustrates that railroading is still an incredibly dangerous occupation. However, mandating three-step protection, prohibiting employees from getting on and off moving railroad equipment and mandating the use of a brake stick for tying down and knocking off hand brakes has saved railroad employees from countless injuries. At CSXT, Hunter Harrison has now turned back the hands of time and has eliminated these common sense safety precautions.

Three-Step Protection Vanishes

The result? Railroad employees will no longer be utilizing three-step protection, likely resulting in more serious and even life threatening injuries. Employees will also be required to get on and off moving equipment, most often onto dangerously unstable and debris covered ballast, clearly placing themselves at risk for serious injury. Lastly, the elimination of the brake stick will require conductors to climb railroad cars to tie down and knock off hand brakes, exposing themselves to slip and fall injuries, especially in severe weather.

Profits Over People

Why are these changes being made? Profits. The faster movement of freight will result in higher profits and an increase in stock price – all due to the fact that CSXT employees will be placing themselves at greater risk of injury. How do railroad employees counter this obvious lack of concern by CSXT for its employees’ safety? Quite simply, by utilizing the Federal Employers Liability Act, the the most effective law in the railroad industry that promotes safety, to show that these unsafe railroad practices will cost more in the long run.

Unfortunately, our brothers and sisters in the railroad industry will suffer. Please remember, however, that any injury caused by the failure to utilize three-step protection, getting on and off equipment and climbing railroad cars to tie down or knock off hand brakes may impose liability under the Federal Employers Liability Act on CSXT. I encourage all of my union brothers and sisters to complain to CSXT about the lack of safety precautions and to contact Designated Legal Counsel regarding any injury on the railroad. Please continue work as safely as possible but in the event of an injury, you must know your rights.

Supreme Court Requires Injured Railroad Employees to Litigate Far From Their Homes

Monday, June 19, 2017

I wanted to write this post for our friends who work in the railroad industry because the Supreme Court recently issued a decision that affects the rights of every railroader. On May 30, 2017, the Supreme Court decided the case BNSF Railway Co. v. Tyrrell. The Court’s decision limits the states where railroad employees can file FELA lawsuits for their injuries. Prior to the Tyrrell case, railroad employees could file their FELA lawsuits against their employer in any state where the employer did business. That rule was based on interpretations of the language in the statute of the FELA itself that, “an action may be brought in a district court of the United States,” in the district “in which the defendant shall be doing business at the time of commencing such action.” The rule allowed for great convenience for injured railroad employees in bringing their lawsuits, particularly employees who are injured over the road and would like to be able to bring a lawsuit close to where they live.

Restrictions on Where Lawsuits Can Be Brought

Under the Supreme Court’s Tyrrell decision, a railroad employee may only bring a lawsuit in a state where the employee’s injury occurred, or in a state where the employer’s “affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State.” This usually means the state that is the employer’s place of incorporation, or the state where the employer has its principal place of business. The Court held that only in an “exceptional case,” will a corporate employer defendant's operations in another state “be so substantial and of such a nature as to render the corporation at home in that State.” The Supreme Court held this ruling is necessary to protect the Due Process rights of corporate employer defendants under the 14th Amendment.

Corporations Over People

The ruling is not only objectionable for continuing to put the “constitutional rights” of corporations above the rights of working people, but it will also have real negative impacts on railroad employee lawsuits. Now, a railroader injured over the road, far away from home, may be unable to sue their own employer in the state where they report for work. Instead, railroaders injured over the road will only be able to sue the railroad in the state where the injury happened, the state where the railroad is headquartered, or the state that is the railroad’s principle place of business. Yet another example of profits over people.

The FELA: Protection Wherever You May Roam

Thursday, March 02, 2017

At a recent railroad union meeting Attorney H. Dave Leibensperger attended there were several questions about the railroad’s responsibility when someone is injured off the work site and we thought it would be good to get some information out about this. It’s important to remember that the railroad’s duty to its employees to provide them with a safe place to work is “non-delegable,” which means they can’t push that responsibility on to anyone else – the railroad is responsible for your workplace safety no matter where you are. The buck stops with your railroad employer. We recently handled a case involving an injury on an industry sidetrack. Even though the railroad did not own or operate the industry sidetrack or property, the railroad employer was held responsible for condition of the industry’s property because it was an area where railroaders were required to perform their duties.

The Responsibility of The Railroad

There are many binding legal precedents holding the railroad’s feet to the fire. The United States Supreme Court, in Shenker v. B. & O. Ry. Co., 374 U.S. 1, 7-8 (1963), ruled that the railroad’s responsibility to provide a safe workplace applies even “when [employees] are required to go onto the premises of a third party over which the railroad has no control.” The Supreme Court ruled the railroad liable for another railroad’s negligent maintenance of mail car that injured the plaintiff. In another Supreme Court case, Sinkler v. Missouri Pac. R. Co., 356 U.S. 326 (1958), the Supreme Court ruled the railroad was liable for the negligence of another railroad’s switching crew. In Payne v. Baltimore & O. R. Co., 309 F.2d 546 (6th Cir. 1962), a federal appeals court ruled the railroad was liable for an accumulation of ash on third-party’s property that killed the plaintiff. In Cazad v. Chesapeake & O. Ry. Co., 622 F.2d 72 (4th Cir. 1980), another federal appeals court ruled the railroad was liable for an injury caused by uncovered drain culvert, again on the property of a third party. In one of the best cases for railroad employees, Empey v. Grand Trunk W. R. Co., 869 F.2d 293 (6th Cir. 1989), a federal appeals court ruled the railroad liable for an injury caused by the negligence of a hotel where the plaintiff was staying in between shifts – the plaintiff slipped on water in the bathroom because the hotel shower was poorly maintained.

Keeping Safe On The Job

So keep in mind, your railroad employer always has to keep you safe on the job – that’s their responsibility to you for all the hard work you give them. If you have an injury that appears it was someone else’s fault, it is still important to contact a lawyer because the railroad’s duty to you is “non-delegable” – it protects you anywhere you are working.

If you  have any questions regarding a potential railroad injury case, contact Attorney H. Dave Leibensperger at (410) 769-5406 or hleibensperger@bsgfdlaw.com
for a consultation. 

New Tool in the Federal Rail Safety Act Tool Belt

Monday, January 16, 2017

You won't believe how the Labor Department has helped railroaders.  Railroaders just got a new tool in their tool belt from the U.S. Department of Labor. A federal court tried to limit the types of injuries and illnesses protected by the Federal Rail Safety Act (“FRSA”), and excluded off-duty injuries and illnesses. The Labor Department decided not to listen and said that even off-duty injuries and illnesses are protected. This will be a great new tool for protecting employees from railroad retaliation.

The FRSA clearly protects employees who tell the railroad about their own (or a co-worker’s) on-duty injury or illness. It also clearly protects employees who follow their doctor’s orders related to an on-duty injury or illness. This can include doctor’s orders to take certain medications or to take time off work. Once an employee tells the railroad about their injury or the doctor’s orders, the railroad cannot punish the employee by suspending them, terminating them, or discriminating against them in any way.

In January 2015, the federal appeals court for the Third Circuit (which covers Delaware, New Jersey, and Pennsylvania) said that the FRSA does not protect employees for following doctor’s orders if the injury or illness occurred off-duty. The court said that only doctors’ orders that are triggered by on-duty injuries or illnesses are covered by the FRSA.

Thankfully, the Labor Department is still on the side of railroad workers. The Labor Department decides FRSA cases before they ever get to court, and it says that even a doctor’s orders for off-duty injuries or illnesses are covered.

The Labor Department said this in a case called Williams v. Grand Trunk Western Railroad Company. In the Williams case, a locomotive engineer was fired for absenteeism after his doctor told him to stay off work. The engineer suffered from anxiety and depression and was prescribed medication that precluded him from working. He told the railroad about his illness and his doctor’s orders, but they fired him anyway. The engineer’s doctor testified that if he worked it would be a “recipe for disaster” to other employees and the general public.

The Labor Department agreed, and said that a railroad cannot punish you for following your doctor’s orders, even if the injury or illness occurred off-duty and is not work-related. This way, you are not forced to choose between working while impaired and risking your job.

The final word on this issue may ultimately be decided by the Supreme Court. Certainly, under the Trump Administration, there will be pressure placed on the Labor Department to reverse its position – but for now we have a good tool to protect employees from the often vindictive railroads.

If you should have any questions regarding a potential whistleblower case, please do not hesitate to contact our office for a consultation. Please visit our website at BermanAndDarby.com and download our railroad worker smart phone app.You can also reach us at 800-248-FELA.

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