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Railroad Injury Blog

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

Whistleblower Decision Illustrates Elements Necessary For A Successful Claim

Friday, March 30, 2012

Several weeks ago, I posted the summary of case decided by Judge Theresa C. Timlin of the U.S. Deparment of Labor that discussed the idea that an absence from work for a non-work related medical resaons is a protected activity under the FRSA. Last fall, she issued a decision in another Whistleblower case that illustrates the elements necessary for a successful claim. The decision is also important because it indicated that the FRSA can be violated even when disciplinary charges are dismissed.

On September 23, 2011, Judge Timlin, after a two day evidentiary hearing, issued an Order directing the Port Authority Trans-Hudson Corporation (“PATH”) to pay a Railroader punitive damages and expunge from her personnel file any disciplinary and negative references concerning an on-the-job injury that was properly reported.

First, a little bit about the facts leading up to Judge Timlin’s involvement in the case. On April 1, 2009, the aggrieved Railroader was injured when she sat on a broken chair that collapsed. She filed an injury report right after the accident occurred. Shortly thereafter, the Railroad issued a letter notifying her that she was required to attend an investigative hearing to determine whether she had engaged in a rules violation for failing to inspect the chair prior to sitting on it. The investigative hearing was postponed and rescheduled several times. The charges against the Railroader were eventually dismissed.

Judge Timlin determined that the Railroad had violated the following elements of the Whistleblower Act. Each of these elements must be proven to recover under the Law.

Protected Activity

Judge Timlin determined that the Railroader had engaged in protected activity by filing the injury report. She indicated that “[T]hese reports are clearly methods by which an employee may notify an employer of a work-related personal injury or work related illness.” Judge Timlin also concluded that the Railroader, had in fact, sustained a personal injury.

Knowledge of Protected Activity

Judge Timlin indicated in her decision that a “decision-maker” who carries out the adverse action on behalf of the Railroad must be aware of the protected activity. It is no enough for the Railroad, as an entity, to know of the protected activity. This element was fulfilled as there was evidence that the Railroader’s supervisor, who brought the charges against her, was aware that the injury report was filed shortly after the accident.

Unfavorable Personnel Action

Judge Timlin determined that the Railroad had taken unfavorable personnel action against the Railroader despite the fact that the charges filed against her were ultimately dismissed. She indicated that the filing of such charges, and then dismissing them, “is likely to have a chilling effect on reasonable employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and being potentially disciplined.”

Contributing Factor

The Act requires that the protected activity must be a contributing factor to the unfavorable personnel action. Judge Timlin determined that the Railroader’s supervisor filed the charges against her because of “information provided in or lacking from the injury report.”

Judge Timlin summed up her decision that the Railroader had fulfilled the elements of her claim as follows: “Rather than investigating the matter first and filing charges only when a violation was substantiated, Respondent chose to file charges based on the information contained in the injury report. On the specific facts of this case, I find a clear causal connection between the filing of the Complainant’s injury report and the initiation of charges against her.”

By Matt Darby

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