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Railroad Injury Blog

Part 3 - the FELA Statute of Limitations for Occupational or Repetitive Injury Claims

Wednesday, June 19, 2019

In the first two parts of this series, we learned what the statute of limitations is, and how it is applied when you have a traumatic injury at work, such as a broken bone. But not all railroad injuries occur at an identifiable time and place. Some injuries may take years to develop, such as osteoarthritis caused by poor walking conditions and bad ergonomics, or cancer caused by exposures to toxic chemicals.

Railroaders frequently suffer from a multitude of injuries that are brought about over time, not in a single traumatic event. Asbestos illnesses, various cancers, injuries caused by the vibration of the locomotive, and hearing loss, all develop over long periods of time.

In these scenarios, which we call occupational injury, or repetitive injury cases, when does the three year statute of limitations start? The federal courts have adopted something called the "discovery rule." This rule has two parts. The three-year statute of limitations begins when (1) the injury or illness first becomes known to the employee; and (2) the employee knew or should have known that the injury or illness was caused by their job with the railroad.

In order for the statute of limitations to begin - both of these conditions must occur. Thus, if you have cancer, but have no reason to suspect it was because of your railroad employment, the three-year statute of limitations has not begun. Likewise, if you fear that because of all the walking on ballast you do, you might in the future contract osteoarthritis, the three-year statute of limitations has not begun.

Importantly, the three year period does not begin from the date of the employee's initial exposure to whatever caused the injury or illness, such as toxic fumes or exhaust. That is because at the initial exposure, no injury or illness has resulted yet.

The statute of limitations also allows railroad employees to bring their claims even after they have retired. An injury such as cancer may not develop for years after retirement, and so the statute of limitations cannot begin until the injury or illness becomes known to the employee. And regardless of the date of diagnosis, the three-year statute of limitations does not start until the employee knows or should know that their injury or illness was caused by their work for the railroad. So, the date an employee retires really is not a factor in whether they may still bring their claim.

The statute of limitations is complicated, and injured railroaders should not delay in contacting an experienced railroad attorney after any diagnosis of an injury or illness at work that they suspect might be work-related.

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

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

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 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

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.

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.

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.

Contributory and Comparative Negligence In FELA Cases

Thursday, October 06, 2016

As I indicated last week, to recover damages in a Federal Employers’ Liability Act (FELA) case, there is a requirement that the Railroad act negligently in producing a Railroader’s injuries.  Contributory negligence is a similar concept except that it’s an action or inaction on the part of the Railroader which leads in some manner to his/her own injury. In determining whether a Railroader was contributory negligence a determination is made as to whether he/she took, or failed to take, actions which a reasonably prudent person would have taken under the circumstances. If there is a finding that Railroader acted negligently and that negligence played any part in bringing about his/her own injuries that person will be deemed to be contributorily negligent.

A determination of contributory negligence does not bar a Railroader from recovering damages for his/her injuries. It does result in a reduction of damages in proportion to the amount of negligence attributed to the injured Railroader. This is the concept of comparative negligence. If the finder-of-fact (usually a jury) determines that the Railroader was contributorily negligent, it then must determine the percentage to which the Railroader’s own negligence contributed to his/her injuries. That percentage of negligence is then used to reduce the Railroader’s damages. For example, a jury determines that a Railroader is entitled to damages for his/her injuries in the amount of $1,000.000.00. The jury also makes the determination that the Railroader was contributorily negligent in causing his/her own injuries and that contributory negligence contributed 25% to those injuries. The Court would then reduce the damage award by 25% to $750,000.00.

The real importance of the concepts of contributory and comparative negligence is the fact that a Railroader can recover damages for his/her injuries event if he/she was partially at fault in causing them.

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