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Railroad Injury Blog

Part 2 - The FELA Statute of Limitations for Injury Claims

Wednesday, June 12, 2019

In the first part, we learned that the statute of limitations for an FELA claim is three years. Well, three years from what? When you suffer a traumatic injury at work with the railroad, you have three years from the date of your injury to file a lawsuit against the railroad.

What do we mean by traumatic injury? This is an injury that takes place in a single identifiable event, as opposed to over a long period of time. The best example is probably a broken bone - it's usually clear when the bone broke, and what caused it. Other examples may include an injury resulting from slip or fall, an injury that results from a switch malfunction, or an injury results from a train derailment. So, the three-year period to file your lawsuit essentially begins the moment you are injured.

Injured railroaders should not delay in contacting an experienced railroad attorney after an injury at work, and the statute of limitations is one important reason why. In the last part of this series, we’ll examine how the statute of limitations is different for occupational or repetitive injury claims.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

The FELA Statute of Limitations Part 1 – What Is a Statute of Limitations?

Friday, June 07, 2019

The Federal Employers’ Liability Act (FELA) contains a three-year statute of limitations. But what is a statute of limitations? It is a law that sets the time limit for filing a lawsuit. If an FELA lawsuit is not filed within the three years (what is sometimes called the “limitations period”), it is likely that the court will dismiss the lawsuit, and the employee will receive no compensation. Importantly, what has to be done within the three-year limitations period is the actual filing of a written complaint with the court. Merely notifying the railroad of an injury is not enough. Engaging in settlement discussions is not enough. A formal legal complaint must be filed with the court.

In certain situations, which are very uncommon, a court may extend the time for filing a lawsuit. This is known as “tolling.” For example, tolling may occur if the railroad has intimidated the employee into not filing a lawsuit, or if the injured railroad worker becomes mentally incapacitated. Whether the time period can be extended depends greatly on the facts of the particular case. The best course of action is to assume that the statute of limitations for an FELA case will be no longer than three years.

The purpose of a statute of limitations is primarily to protect defendants, in this case railroads. The law presumes that after a certain amount of time, a party should no longer have to worry about past claims. But another purpose of the law protects both parties - the deterioration and loss of evidence. As time passes, memories fade and documents get lost or thrown away. Bringing a claim timely benefits both parties by making the best evidence available to them both.

Injured railroaders should not delay in contacting an experienced railroad attorney after an injury at work, and the statute of limitations is one important reason why. In the next two parts of this series, we'll examine how the statute of limitations is different in an injury claim, versus and occupational or repetitive injury claim.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

How the Safety Appliance Act Enhances Your FELA Claim - Part 2

Wednesday, April 24, 2019

In Part 1 we learned that the Safety Appliance Act is a powerful tool for injured railroaders. If you are injured by the failure of the railroad to install or maintain any of the safety devices required by the Safety Appliance Act, you do not need to prove the railroad was negligent. However, you do have to prove that the railcar where the safety device failed was “in use” at the time of your injury. This may not always be an easy determination, and the facts of each individual case will determine whether a railcar is "in use." But there are some guidelines to keep in mind.

Normally, a railcar is not considered "in use" when it is undergoing maintenance. So the Safety Appliance Act does not usually apply to railroaders who are injured as the result of repair, inspection, or servicing of a train. This makes some sense so the railroad is permitted to detect and correct defective conditions during maintenance.

A train is certainly "in use" when it is not in need of repair or servicing and has been "okayed" by railway officials for service. When the train has already been serviced and inspected, it is "in use." A defective railcar may still be "in use" while being transported to a shop for repair. A car stopped temporarily to inspect for defects, that has not been taken out of service, may also still be “in use.” However, a defective railcar temporarily stored on ladder track may be not “in use.”

Here again, it is key to your case to have an experienced railroad attorney who can argue forcefully that the railcar that caused your injury was "in use" at the time. The law can be a "grey area" where arguments can be made on both sides.

If the railcar that causes your injury is not "in use," it doesn’t mean you lose your FELA case. It simply means that your case is not enhanced by the Safety Appliance Act, and you will have to prove the railroad was negligent in causing your injury. But establishing that your injury was a result of a violation of the Safety Appliance Act is a huge step forward in winning your case.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

How the Safety Appliance Act Enhances Your FELA Claim - Part 1

Wednesday, April 17, 2019

When a railroader gets injured on the job, the claim is always governed by the Federal Employers' Liability Act (FELA). But some FELA injury cases are enhanced by the Safety Appliance Act, a federal law first enacted in 1893. Typical FELA cases require the injured railroader to prove some negligence on the part of the railroad in causing the injury. Cases are "enhanced" by the Safety Appliance Act because, when there is a violation of the Safety Appliance Act, the railroader does not need to prove negligence on the part of the railroad. The violation of the Safety Appliance Act by itself, proves the railroader’s case. This concept is often referred to as "negligence per se" or "strict liability."

The Safety Appliance Act requires that railcars have certain safety devices installed and in proper working order. Namely, grab irons, sill steps, running boards, handholds, and ladders must be securely mounted. There can be no slippery substances on locomotive walkways, including crossover walkways. Couplers must couple and uncouple automatically, without any need for railroaders to go between cars to perform coupling or uncoupling.

The braking system must be in good working order, including any related pipes, hoses, and reservoirs. The train’s brakes must permit the engineer to perform braking without the use of handbrakes. The handbrakes themselves must also function properly. Drawbars must be properly installed and functioning correctly. These are some of the most common requirements that are violated, but there are a number of other important safety devices that must be installed and working correctly under the Federal Railroad Administration’s regulations contained at 49 CFR Part 231.

If the cause of your injury is that any of these safety devices were not installed, or not in proper working order, you have a very strong case against the railroad. Your case will be "enhanced" by the Safety Appliance Act. It is important to have an attorney who understands railroad regulations, and the laws that may help enhance your FELA case.

The other important factor to consider in determining if the Safety Appliance Act enhances your case, is whether the railcar you were working on was "in use" at the time of your injury. We'll learn more about that in Part 2.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 3 of 3

Wednesday, April 03, 2019

Part 3

As we discussed in Part 1, it seemed obvious that the FRSA protected railroad employees who follow their doctor’s orders for non-work related injuries. But as we learned in Part 2, some courts don’t care what a statute says – in the Bala/PATH decision the Third Circuit admitted that subsection (c)(2) of the FRSA has no work-related requirement, but still decided that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

The good thing about the Third Circuit’s decision – is that it only applies in the Third Circuit, that is, the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. So until the United States Supreme Court decides otherwise (and they might!) employees throughout the rest of the country are still covered by the FRSA for their non-work related injuries.

That conclusion was given further strength by the United States Department of Labor, and its Administrative Review Board (ARB), which also hears and decides FRSA cases. In the case Williams v. Grand Truck Western Railroad, the ARB decided: “Third Circuit added a work-related limitation to the statute. We disagree with the Third Circuit's conclusion…” The ARB further decided, “we decline to apply the holding in PATH to cases not arising in the Third Circuit.”

So the takeaway here is that everywhere in the country, except Delaware, New Jersey, Pennsylvania, and the Virgin Islands, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the FRSA protects you for following your doctor’s orders.

No matter where you live, but especially if you live in the Third Circuit, you need experienced railroad attorneys to help you with any railroad-related claim. If you have been disciplined by the railroad for following your doctor’s order, contact us, no matter what state you live in!

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 2 of 3

Wednesday, March 27, 2019

Part 2

As we discussed in Part 1, it should be obvious that the FRSA should and does protect railroad employees who follow their doctor’s orders for non-work related injuries, including time off work. That’s the safe thing to do for the employees and the public, and subsection (c)(2) of the FRSA seems clear on its face.

Well along comes the United States Court of Appeals for the Third Circuit. This is the federal appeals court that has jurisdiction over the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. In 2015, in a case sometimes referred to as Bala, and othertimes referred to as PATH, the Third Circuit took away the right of some injured railroad workers to follow their doctors’ treatment plans.

The Third Circuit held that injuries must be work-related in order to be covered by subsection (c)(2) of the FRSA. You can read subsection (c)(2) for yourself, it doesn’t say anything about a requirement than an injury be work related: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…” But here is what the court said: “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation, even though no such limitation appears on the face of the statute. And if a work-related limitation must be applied to subsection (b)(1)(A), it would be consistent to also apply a work-related limitation to subsection (c)(2).” They even admitted the statute does not have a work-related requirement! The decision of the Third Circuit was that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

Well then, everybody’s screwed, and no one who is ill or injured outside of work is protected – right? Wrong. We’ll see what went right in Part 3.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty

Friday, March 22, 2019

Part 1

It seems pretty obvious, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the law should protect you for following your doctor’s orders. A common part of a doctor’s medical treatment plan for someone with a serious injury, is to take them out of work. As anyone who works for a railroad knows, railroads can have harsh and punitive attendance policies. If you miss too much work, no matter the reason, the railroad may be looking to discipline you, or even terminate you.

But attendance-related discipline for people who are seriously ill or injured outside of work is wrong. Employees should be able to follow a doctor’s order not to work And again, the reason seems pretty obvious, because the safety of railroad employees, rail passengers, and those living and working near railroad tracks and yards, should be more important than forcing an ill or injured employee to come to work, just so he or she can avoid attendance-related discipline. Without legal protection, it’s clear what will happen – injured and ill employees will report to work to avoid attendance discipline, and endanger themselves and the public.

It would also seem pretty obvious that a law like the Federal Rail Safety Act (FRSA) should protect employees with non-work related medical conditions. After all, the stated purpose of the FRSA is, “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” And subsection (c)(2) of the FRSA seems to do just that: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…”

Well then, the law does what it’s supposed to do and everyone’s covered for their non-work related medical conditions – right? Wrong. We’ll see what went awry in Part 2.

Maryland Railroads Place Profits Over Public Safety

Tuesday, March 12, 2019

Railroads shamelessly place profits over the safety of their employees on a routine basis, as evidenced by CSX Transportation, Inc.'s rollback of time-tested safety measures such as three-step protection, the mandatory use of brake sticks and not requiring their employees to get on and off moving railroad equipment. The railroad industry’s lack of a strong safety culture has now spilled over to endanger the public at large.

The Maryland General Assembly is currently considering legislation (HB66/SB252) that would require that certain freight trains traveling through Maryland continue to be crewed by at least two persons. The safety advantages are clear: if one crew member suffers a debilitating health condition, the other crew member could prevent a disaster by stopping the train; if an emergency occurs and the train derails or a hazmat car is leaking, the second crewmember can assist in averting disaster and help direct first responders; and if a freight train strikes a motor vehicle at one of Maryland's many grade crossings, the second crewmember would be present to potentially save the lives of a Maryland family trapped in the vehicle. The scenarios are endless – a second crewmember is critical to protect the safety of the public. Many of these freight trains pass through our communities at all hours of the day and night. We need to protect the families in those communities.

How do the freight railroads that operate in Maryland respond? In a recent hearing before the House of Delegates, representatives of freight railroads that operate in Maryland blatantly threatened to pass the cost of continuing to operate with a second crewmember to the public to the tune of $5.1 million by increasing the costs it charges the Maryland commuter rail system to operate on its tracks – a totally unrelated operation. Fortunately, last year the General Assembly did not bow to such threats and the legislation passed with broad support. Unfortunately, the legislation was vetoed by the Governor. This year, we hope that the Governor signs this legislation or the General Assembly overrides any veto. The railroads should not be able to hold the citizens of Maryland hostage with financial threats.

How can we help? Let's contact our legislative representatives and the Governor's office and tell them that the safety of our communities is more important than the profits of freight railroads.

How to Prove an FRSA Whistleblower Violation without a Smoking Gun

Friday, December 14, 2018

You have been suspended from work or terminated, and you know it’s because you reported that injury, or because you put in one too many safety reports and trainmasters were targeting you. But how do you prove it when there’s no smoking gun – no statement from management that you’re being fired for reporting your injury or safety complaint? Courts recognize that smoking gun evidence, conclusive evidence of wrongdoing, is typically unavailable cause employers are rarely so cooperative as to include a notation in your file that your discipline is for a reason expressly forbidden by law. Obviously, it is very infrequent that a railroad admits not just to possessing an impermissible motive, but also to acting on it. So proving you were terminated for making an injury or safety report is done most often through circumstantial evidence.

Circumstantial evidence is not only sufficient, but may even be more certain, or more persuasive. Circumstantial evidence that your protected activity, such as reporting injuries or safety complaints, contributed to your discipline may include several factors. First is temporal proximity. If the railroad charges you with rules violations shortly after you report your injury, that indicates the reason for the discipline was the injury report. Second are indications of pretext. When the railroad is vague about what you did to violate the rules, or its witnesses give contradicting statements about what occurred, that shows the reason for the discipline is not what the railroad is claiming. Third is an inconsistent application of the railroad’s policies. If the hammer is coming down hard on you, and a co-worker who committed the same violation a year ago but never reported a safety violation got off easy, that indicates the reason for your discipline was your safety report. Fourth is a railroad’s shifting explanations for its actions. When the railroad first charges you with one violation and then changes its mind to charge you with something else, that indicates that neither of the reasons the railroad gave is the real reason for the discipline.

Fifth is antagonism or hostility toward your protected activity. If your trainmaster tells you, “Don’t bring that BS to me,” when you make a safety complaint, or tells you that you should say your injury happened at home, it shows that any discipline you receive is related to what management was really upset about – your protected activity. Sixth is the falsity of the railroad’s explanation for the discipline. If you can prove there is no way you committed the rule violation you are charged with, and the railroad knew it, then it’s clear the railroad was really motivated by your record of safety complaints. Finally, are changes in the railroad’s attitude towards you after you engaged in protected activity. When you make an injury report, and the trainmaster who you used to be friendly with now won’t look you in the eye because you messed up his numbers for the year, it tends to show that the discipline you received was for reporting that injury.

Proving you were discriminated against because of your protected activity under the FRSA is obviously a tricky business. That is why you need experienced FRSA attorneys with knowledge of railroads and their practices to represent you when you are suspended or terminated from work, and you know it was for an unlawful reason.

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.

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