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Railroad Injury Blog

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.

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

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

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

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