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Railroad Injury Blog

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

Amtrak To Install Video Cameras In Locomotive Cabs

Wednesday, May 27, 2015

Amtrak said Tuesday it will install video cameras inside locomotive cabs to record the actions of train engineers, following a deadly derailment that occurred on May 12, 2015.

Watch Here

By Matt Darby

How Often Do Amtrak Trains Derail?

Thursday, May 14, 2015

The Washington Post issued an article about the rail agency’s history and what causes derailments. Read the article here.

By Matt Darby

Partner Matt Darby Joins ARLA Board

Wednesday, May 13, 2015

Partner Matt Darby has recently been elected a board member of ARLA. ARLA, the Acadamy of Rail Labor Attorneys, is a professional association of plaintiffs’ attorneys whose practice includes the representation of railroad workers and their families under the Federal Employers’ Liability Act (FELA). To read more about ARLA click here.

By Matt Darby

NTSB Release Video Of Its Amtrak Derailment Investigation

Wednesday, May 13, 2015

Earlier today the National Transportation Safety Board (NTSB) released video concerning its investigation of the Philadelphia Amtrak derailment.

Watch it here.

By Matt Darby

NTSB Confirms That Derailed Amtrak Train Was Traveling More Than 100 MPH

Wednesday, May 13, 2015

The NTSB confirmed in a Tweet earlier today that the Amtrak train involved in yesterday’s derailment in Philadelphia was traveling more than 100 MPH. This was more than twice the speed permitted in the location where the derailment occurred.

By Matt Darby

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