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Railroad Injury Blog

THE SQUEAKY WHEEL GETS THE GREASE

Thursday, October 06, 2016

Everyone has heard the above adage many times and understands what it means. One wonders whether the origin of this phrase comes from the Railroad Industry. In any event, it certainly has modern applicability to a Railroaders rights under the Federal Rail Safety Act Whistleblower Provisions.

One of the strongest provisions of the Federal Rail Safety Act Whistleblower Provisions prohibits a Railroad from denying, delaying or interfering in any way with the medical treatment of an employee who was injured during the course of employment. In addition, if the injured employee requests transportation to a medical facility, as a result of an injury during the course of employment, the Railroad is required to promptly arrange to have the injured Railroad employee transported to the nearest hospital (where the employee can receive safe and appropriate medical care). However, it is incumbent upon the employee to understand these rights and to affirmatively protect them. In other words, an employee must recognize when their employer is attempting to interfere with their medical treatment. This often arises in a context of a Railroad Official’s attempt to influence emergency room treatment. It is well known among Railroad Supervisors that if an emergency room physician prescribes medication or restricts the Railroad employee for working for a period of time, the injury becomes FRA reportable. Because a significant portion of a Railroad Supervisor’s bonus is based upon minimizing FRA reportable injuries, they are highly motivated to influence the emergency room physician against prescribing medication or restricting work activities. However, the Railroad worker must enforce these rights by informing hospital personnel that no medical information is to be discussed with anyone from the Railroad. In other words, "the squeaky wheel gets the grease".

In addition, an injured employee must affirmatively request transportation to the nearest hospital if injured during the course of their employment. If this right is not requested, then the previously mentioned provisions of the Federal Rail Safety Whistleblower Act are not triggered. "The squeaky wheel gets the grease".

The Importance Of Underinsured And Uninsured Motorist Coverage

Wednesday, July 06, 2016

Part of every railroaders daily existence is the process of deadheading from one work location to another. It is important to remember that under the Federal Employers Liability Act, the railroad is required to provide you with a reasonably safe place in which to work. This duty extends to the premises of third parties, including industry yards, hotels and any other place the railroad requires you to be in the furtherance of your work duties. Just like with most other cases, it is important that the railroad be made aware of any dangerous condition you may encounter anyplace you work. This can often make the difference between a successful case and one that is not.

Deadheading

In the context of deadheading, it is important to understand that the van company is considered an agent of the railroad. This means that legally, any negligence of the van or truck is considered to be the negligence of the railroad. Therefore, if the van driver violates a traffic rule or drives negligently, your FELA case would essentially proceed just as if the injury occurred on railroad property. This would also be true if there was some defect in the vehicle that caused or contributed to the accident. The lesson here is that if there is any aspect of the accident that was caused or contributed to by the van driver, it is important that you record that fact. For example, if the van driver was not paying attention due to the fact he appeared to be fatigued so he did not react as quickly as he could have, make sure that this fact is noted in the railroad injury report. That way, even if the main theory of the case is that another driver was negligent, the railroad will still be held in the case as a joint-tortfeasor; meaning that they would be required to pay any verdict in the case.

If You Are Injured In An Accident

However, what happens if the van driver was not negligent and you are injured in an accident? It is clear that you would be “covered” under the FELA, but since the railroad was not negligent, a FELA case would not be successful. Therefore, the only case you may have would be against the driver who caused the accident. What would happen if the van was stopped at a red light and was rear-ended by another vehicle? Since the van driver was not negligent, there would be no chance of a recovery under the FELA. Your only recovery would be against the other driver. That would be fine if the other driver has sufficient liability insurance limits, but what if the other driver only had minimum coverage?

It Could Happen Just Like This…

Consider this scenario. You are in a van that is rear-ended. You injure your neck and have to have surgery and miss two years from work, or maybe cannot ever return to work? The driver who caused the accident only has $20,000 in liability coverage? That means that even if you have lost wages of $250,000, you would receive $20,000 and that is all!

The Best Way To Protect Yourself

How can we avoid this outcome? The only way to protect yourself is to purchase Underinsured/Uninsured Motorist (UIM) coverage with high limits. I suggest that the limits be at least $1 million. UIM coverage applies when a motor vehicle accident occurs and the negligent driver does not have sufficient liability insurance limits to satisfy the damages you suffered as a result of the accident. The claim is then submitted to your UIM insurance company. If the case does not settle, a lawsuit can be filed just like any other personal injury case. In addition, your insurance rates cannot be increased if you pursue a UIM claim. Having sufficient UIM limits can be the difference between being completely compensated for your losses and losing everything you have worked for in your career.

When You Need Help

Please contact your Smart Transportation Division Designated Legal Counsel Matt Darby at 800-248-FELA or pmdarby@bsgfdlaw.com if you have any questions.

By Matt Darby

Why We Need The FELA

Friday, June 10, 2016

I recently had the pleasure of speaking at two (2) Union Meetings, one in West Seneca, New York and the other in Altoona, Pennsylvania. One of the themes of the presentation dealt with the importance of the Federal Employers’ Liability Act (FELA). We had some really good discussions and I thought it would be a good topic for a blog, so here I go. In contrast to State Workers’ Compensation Laws, the FELA requires that an injured employee prove that he or she did not have a reasonably safe place in which to work in order to recover any damages, including lost wages. In other words, there must be a showing that the railroad was negligent. At the meetings, it was clear that there was a question as to why the FELA is necessary.

The History and Purpose of FELA

In order to understand this very astute question, it is important for us to understand the historical purpose of the FELA. All railroad employees recognize that railroad work is dangerous. At the time that the FELA was passed in 1908, 4,500 railroad workers died and nearly 88,000 were injured performing railroad work. In response to the carnage taking place along the nation’s tracks, Congress enacted the FELA. The purpose of the FELA was appropriately summarized by Supreme Court Justice William O. Douglas when he said “the Federal Employers’ Liability Act was designed to put on the railroad industry some of the costs of the legs, arms, eyes and lives which it consumed in its operation”. Therefore, the FELA was designed to achieve two (2) goals. First, it was designed to provide injured railroad workers or their surviving family members fair compensation for injuries and deaths sustained while working on the railroad. Of equal importance, the FELA creates a financial incentive for railroads to improve safety. The New York Times published a Pulitzer Prize – winning expose in 2005 which confirmed that railroad work is still dangerous. The New York Times concluded that left to their own devices, railroads skimp on safety and cover up wrong doing. This is hardly a secret to those working for a railroad!

The Whistleblower Provision of FELA

The culture found on railroads was further evidenced by Congress’ decision to pass the 2007 Amendments to the Federal Rail Safety Act, which included a very strong Whistleblower provision. Obviously, Congress felt that railroads still needed an additional incentive to create a safe place for employees’ to work as well as a law for compensating railroad employees who report unsafe conditions. Again, an attempt to create a financial incentive for railroads to do the right thing.

Therefore, in answer to the question posed at my two (2) recent meetings, the reason that the FELA requires a showing of negligence is that it is an important component of railroad safety. Left to their own devices, railroads would simply ignore safety and treat their employees like any other piece of equipment; they would simply get rid of it when it was no longer profitable.

By Matt Darby

When Should An Injured Employee Give A Recorded Statement To The Railroad Claims Agent?

Wednesday, May 25, 2016

I am frequently asked the question of when an injured railroad employee should provide the Railroad’s Claims Agent with a recorded statement. The short answer is “when hell freezes over.”

The Real Purpose of a Recorded Statement

There is no advantage to an employee giving anyone from the Claims Department a recorded statement following an injury. The purpose of any recorded statement is merely to memorialize information that will be helpful to the Railroad in defending the case in court. Often, the Railroad’s Claims Agent will contact the employee and request a that a recorded statement be given following an injury. This is done under the guise of fact finding and information gathering. However, the real purpose of the recorded statement is to elicit information that can be used in court against the employee.

What You Say Can, and Will, Be Used Against You

I am blogging about this issue now because I have recently handled several cases in which recorded statements have severely hurt my clients’ cases. The Claims Agents are trained on the legal issues under the Federal Employers Liability Act (FELA). It is important to remember that in order to recover under the FELA, and employee must show that the Railroad was negligent or, stated differently, the Railroad failed to provide the injured employee with a reasonably safe place in which to work. At the time that a recorded statement is given, a full investigation obviously has not taken place. Information which may become available later will look fabricated if an employee denies facts that may become relevant later on after the case has been fully investigated. It is very damaging for a Jury to hear, in a railroad employees own words, information that contradicts what a subsequent investigation may reveal. The damage, in some cases, can be fatal.

The Claims Agent will also seek information that may help defend the case in other areas, such as information about prior injuries or pre-existing conditions which the Railroad may argue later are relevant to the issue of medical causation. In other words, the issue of whether or not the subject accident involving the injured employee was the cause of the damages alleged in a potential FELA claim.

So What IS an Injured Employee’s Obligation When Reporting an Injury?

The only obligation an injured railroad employee has is to complete the Railroad’s Injury Report. Those injury reports range from very detailed (ex. Those required by CSX Transportation), to very general (ex. Those required by Amtrak and others). The Injury Reports and the important sections thereof can be reviewed on my Legal App, which can be found by searching Matt Darby and Railroad in your smart phone’s App Store. Once that Injury Report is completed, the employee is under no obligation, legal or otherwise, to provide the Claims Department with a recorded statement (of any kind).

Why Sharing This Information Matters

Please help me get the word out by sharing this information with your fellow railroad workers. No one wants to be in the position of being injured on the Railroad. However, given the dangerous nature of the work, it is likely that at least some point during your career you may sustain an injury. This information could be the difference between a successful FELA Claim and one in which recovery may be limited.

By Matt Darby

What Makes A Good Railroad Injury Case?

Friday, April 29, 2016

I am often asked by clients, perspective clients and railroad employees I meet throughout my travels about what makes a good railroad (injury) case. Well, that is a difficult question to answer. I always start out by reminding railroaders that the Federal Employers’ Liability Act (FELA), is a negligence based law. The law requires that the railroad employer provide its employees with a “reasonably safe place in which to work.” What does that mean? It means, in most cases, that the railroad must have either created the dangerous condition causing the injury or the railroad had direct knowledge of the dangerous condition or, as an alternative, that it existed long enough that the railroad should have known.

Pre-Existing Dangerous Conditions

If we can prove that the railroad created the dangerous condition then we will meet our burden of proof. In most instances, however, we must rely on proving that the railroad knew or should have known of the dangerous condition. This highlights the importance of reporting by employees of unsafe conditions on a regular basis and the memorialization of those complaints in a written record. Notice of unsafe conditions to the railroad is clearly important to rectify an unsafe condition. As a reminder, reporting an unsafe condition is a protected activity under the Federal Rail Safety Act Whistleblower Provisions. However, this information can also be critical in an FELA case. Accordingly, I encourage all railroad employees to report unsafe conditions and document the reporting. Many Unions have legislative departments that are active with safety issues. They are often a good repository for these unsafe condition reports.

FELA Exemptions for Negligence

There are certain exceptions under the FELA to the negligence requirement. Specifically, claims arising under the Safety Appliance Act and the Locomotive Inspection Act are different. However, in the vast majority of claims it is important that we have information to prove that the railroad knew or should have known of the dangerous condition. Please help keep your railroad safe by reporting unsafe conditions. Hopefully, this will prompt the railroad to correct the condition and improve the safety or the railroad. If not, the information may prove critical in assisting a co-employee in recovering the damages he or she is entitled to under the FELA.

By Matt Darby

Beware Of The Railroad’s Release

Monday, April 25, 2016

I was recently working on a Federal Rail Safety Act (FRSA) Whistleblower Case involving an argument by the Railroad that my client’s claim had been released. It reminded me that the Railroads as a whole are becoming much more aggressive with their Releases. While it is not an issue when a railroad employee with a Federal Employer’s Liability Act (FELA) claim or Whistleblower Claim arising under the FRSA is represented by counsel, often times injured railroad employees will settle smaller cases on their own. I always encourage railroaders to contact my office, even if I am not directly involved in the case, to get advice as to how to proceed if the claim is relatively small. I always caution those individuals to be aware of what the railroad will try to include in its Release.

What Is a Release?

A Release is essentially the legal document that memorializes the agreement between the employee and the railroad. It will contain the monetary amount of the settlement, which is accepted by the employee in exchange for “releasing” certain claims. Railroad employees naturally assume that they are only releasing any claim related to the particular injury. However, railroads are increasingly including within the Release claims and potential claims that the employee may not be aware of. For example, the railroads will seek to include any known prior claim, such as any time claims arising under the Railway Labor Act, other injuries and potential cumulative trauma disorder claims.

What About My Unknown Injuries?

It is particularly egregious when the railroad attempts to have the employee release unknown claims. The law is somewhat unclear on this issue. Some cases hold that an employee can only release claims that he or she is aware of. In other words, if an employee is aware that they have what may be a cumulative trauma knee injury, that may be released if the language of the document is broad enough. More troublesome, however, are the cases that hold that an employee may release injuries that are unknown. In those cases, the question is whether the employee is releasing injuries that may come about from known risks. This is much broader than the known injury claim. So, for example, if an employee injures his hand and is out of work for one month, and settles the case directly with the Claims Agent, and later develops cancer as a result of exposure to diesel exhaust that Release may bar the cancer claim if it included reference to risks associated with diesel exhaust.

It Could Happen To You

I decided to blog about this issue based upon a case I am currently working on. My client was injured attempting to throw a defective and out of adjustment railroad switch. He lost minimal time from work and settled the FELA injury case one week after the incident. The next day, the employee received a charge letter claiming that he had improperly thrown the switch. After an investigation, the employee was assessed thirty (30) days off of work. Critically, this was step two with a railroad that had a three step termination policy. Several months later, the employee did admittedly violate a rule which resulted in a derailment. However, because of the fallacious second step charge, the employee was terminated. We immediately filed an FRSA Whistleblower Case and the railroad contends that the FELA Release, which did included language releasing any FRSA cases, barred the FRSA case. We, of course, are fighting this issue vigorously. The outcome is yet to be determined.

Before You Sign a Release…

Accordingly a word of caution – please confer with experienced railroad counsel prior to signing any Release. It is important to fully understand what you are giving up to make sure that the terms are acceptable.

By Matt Darby

Injured Employee’s Rights With Regard To Medical Treatment

Monday, April 11, 2016

Whenever an employee is injured during the course of their employment on a Railroad, it is important to understand that the employee can seek medical treatment with health care providers of his or her choice. This right is ingrained in the Federal Employers’ Liability Act (FELA) and is one of the most important rights that an injured railroad employee enjoys. In fact, this right is so important that when the Federal Rail Safety Act (FRSA) was amended in 2007 to include a Whistleblower Provision, medical treatment issues were also included. Therefore, if a Railroad interferes with an injured employee’s right to medical treatment in any way, the attempt may give rise to a separate claim under the FRSA.

When Injured…Get Representation

This issue frequently arises with employees who are unrepresented by an attorney familiar with the Federal Employers Liability Act (FELA). Often times, Railroads will hire “Nurse Case Managers” ostensibly to help the employee obtain appropriate medical care. However, these “Nurse Case Managers” are often unfamiliar with medical rights under the FELA or intentionally disregard this important provision of the law. It is also important to understand that all health care providers are familiar with the practice in State Workers’ Compensation Claims where the Workers’ Compensation Insurer has the right to approve or disapprove medical treatment. Since the vast majority of injured workers are covered by a State Workers’ Compensation Law, as opposed to the FELA, providers are often susceptible to the inference that the “Nurse Case Manager” has the ability to approve or, more importantly, disapprove medical care. This is absolutely false.

A Strong Medical Advocate in Your Corner

Medical issues, second only to issues of negligence or liability are often critical in a successful FELA claim. Invariably, the Railroad will hire a physician to provide the opinion that, despite all evidence to the contrary, an employee’s medical condition is not related to the subject railroad accident. It will often allege that the condition was due to long standing degenerative changes or other causes. Therefore, it is important to have a strong medical advocate in your corner when pursuing an FELA claim. An Attorney experienced in FELA cases can educate your treating doctor about the differences between the FELA and the State Workers’ Compensation System and also inform the doctors about the nature of Railroad work. Often, a doctor’s only experience with railroad work may be with conductors on passenger rail service.

The Right Medical Expert Matters

Accordingly, it is critical that injured railroad employees immediately seek medical care with physicians who are independent of the Railroad and will have the injured employee’s best interest at heart. Any attempt by the Railroad to control medical treatment or influence treatment in any way should be met with a claim under the FRSA for damages available under that law.

By Matt Darby

Why Railroad Employees Don’t Report Injuries

Thursday, April 07, 2016

Whenever I speak at a Railroad Union Meeting, I emphasize the importance of reporting any injury, no matter how insignificant it may seem at the time. The older railroad employees in attendance invariably raise their hand and relate stories of co-workers who were fired on trumped up charges after reporting an injury. No doubt, that scenario has occurred countless times on the Railroad. It is a small wonder why railroad employees hesitate to report injuries.

The Power of the FRSA

However, railroad employees have a powerful weapon to use against such harassing and intimidating actions by Railroad Management. Under the Federal Rail Safety Act (FRSA) Whistleblower Provisions, an employee has a separate claim if he or she is disciplined in any way as a result of reporting an injury. The provisions of the FRSA are quite powerful and can effect a change in the culture, but only if railroad employees are made aware of the existence of the law and change their behavior. An experienced Railroad Attorney can assist an employee with this type of a case.

Whistleblower Law NOT Just for Injuries

I often receive calls from railroad employees and Local Chairperson on this issue. It is important to think about a potential FRSA Whistleblower Case in any disciplinary proceeding. Certainly, if an employee is disciplined for a rule violation connected with the reporting of an injury, the FRSA Whistleblower Law is always an issue. However, the Whistleblower Law also applies to other safety related issues, such as reporting unsafe conditions. I frequently counsel Local Chairperson to interject into the investigation proceeding a claim that the Whistleblower Law is being violated. This may assist down the road with the potential Whistleblower Claim if the Railroad persists with the discipline. Even accepting a waiver in lieu of proceeding with an investigation can still give rise to a Whistleblower Claim. In fact, the mere receipt of a Charge Letter by a railroad employee is enough to trigger the protections of the Federal Rail Safety Act.

Culture Change within Railroad Organizations

As all railroaders know, the culture on the Railroad needs to change with regard to safety. Knowing your rights and utilizing the provisions of the FRSA will go far in effecting this cultural change.

By Matt Darby

Do NOT Ignore Letters From A Railroad Vocational Rehabilitation Department

Friday, March 18, 2016

I often become involved in claims for injured Railroad employees several months or even a year or more after the injury. My advice and representation is requested because of concern over the potential career limiting aspects of a serious injury. It is not unusual for me to find that the Railroad’s Vocational Rehabilitation Department has sent the new client letters requesting participation in what is called the Railroad’s “Vocational Rehabilitation Program”.

True Identity of a Vocational Rehabilitation Program

The problem lies in the fact that the “Vocational Rehabilitation Program” is really an arm of the Claims Department. The Railroad hopes that the employee, or an inexperienced Federal Employers Liability Act Attorney, will ignore the vocational rehabilitation letters. This allows the Railroad to argue at trial that the employee did not take advantage of assistance that the Railroad was prepared to offer to help the employee to obtain employment either at the Railroad or employment outside of the Railroad. This can be a powerful argument before a Jury. Often times, the most significant aspect of any serious injury claim is the lost wages and benefits that the injured employee is losing as a result of an inability to return to work on the Railroad. Accordingly, the Railroads are well versed in battling these issues on all fronts, including through their so called “Vocational Rehabilitation Program”.

Why an Experienced FELA Attorney Matters

Rather than ignore these letters, an experienced Federal Employers Liability Act Counsel will respond appropriately to the letters to shift the emphasis away from what the injured employee allegedly failed to do and highlight the fact that the Railroad, which employs thousands and thousands of employees, has not stepped up to assist the injured employee by offering suitable alternative employment within the Railroad. The last thing that an injured employee would want to have happen is to “win” the FELA case by proving that his or her injury was due to the Railroad’s failure to provide a reasonably safe place in which to work but lose the battle by receiving an inadequate damages aware because the employee ignored letters from the Railroad’s “Vocational Rehabilitation Department”.

What to Do Next?

If an employee is in a situation like the kind described above, it is important that he or she seek out an experienced FELA Counsel to assist in rebutting this tactic by the Railroads.

By Matt Darby

Vision Certification Issues For Railroad Conductors And Engineers

Thursday, March 17, 2016

I have received numerous calls recently from Railroad Engineers and Conductors from across the nation regarding certification issues, especially with regard to visual color deficiencies and visual acuity issues. It is important to understand that the Railroads are struggling with the appropriate methods with which to measure color vision deficiency and visual acuity deficiencies in field testing. If an Engineer or Conductor has failed a clinical test for color blindness or visual acuity, it is important that they understand the field testing procedures. The Federal Railroad Administration has recently issued an interpretation to clarify the provisions of its Locomotive Engineer and Conductor Qualification and Certification Regulations with respect to visual standards and field testing. Prior to undergoing field testing, it is important for Engineers and Conductors to understand this process.

Vision Certification Testing Standards

The Federal Railroad Administration has received numerous inquiries from Railroads as to how this type of testing should be conducted. In addition, my Firm has been in the process of appealing disqualifications of Engineers and Conductors to the Locomotive Engineer Review Board and the Operating Crew Review Board on behalf of clients who have either failed field testing procedures or have otherwise recently been denied re-certification because of visual impairments. The process is challenging and it important for these individuals to understand their rights with regard to this issue, since it can effectively derail their careers.

Job Function and Environment Matter

First, it is important to understand that the Railroad’s Medical Departments have significant latitude in certifying Engineers and Conductors despite visual impairments. This latitude involves conditional certification for allowing Engineers and Conductors to continue to work under certain circumstances. For example, an Engineer may be allowed to continue to work despite a color vision deficiency if the Engineer works in an area where the railroad signal aspects are positional rather than color based. Also, Conductors may be certified if they are not normally required to recognize signals during the course of their work day. More importantly, Railroads are inconsistently applying field testing procedures.

As a result of these issues, the Federal Railroad Administration has issued an interim interpretation to provide guidance to railroads as to how to properly administer a field test. It has been my experience that Railroads are inappropriately administering field tests to the detriment of long standing employees who have demonstrated the ability to work safety despite their vision deficiencies.

What Railroad Employees Should Do Prior To a Field Test

It is important for any employees facing a field test because of a visual deficiency to contact experienced Railroad Counsel to provide guidance in this area. If faced with an inappropriate field test, the individual should engage their union representation to help ensure that the field test is appropriately and fairly administered. In addition, if the employee does not pass the field test, and is ultimately denied re-certification, there are procedures that need to be followed and time limits regarding an appeal to the Locomotive Engineer Review Board or the Operating Crew Review Board in order to preserve their rights to re-certification. My office is available to assist any railroad union employee in this regard.

Ready for The Next Step?

If you are an employee working for a railroad and are concerned about the outcome and administration of a pending field test for your visual acuity please contact Matt Darby at 410-769-5400 or toll free at 800-248-3352.

By Matt Darby

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