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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 3 of 3

Wednesday, April 03, 2019

Part 3

As we discussed in Part 1, it seemed obvious that the FRSA protected railroad employees who follow their doctor’s orders for non-work related injuries. But as we learned in Part 2, some courts don’t care what a statute says – in the Bala/PATH decision the Third Circuit admitted that subsection (c)(2) of the FRSA has no work-related requirement, but still decided that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

The good thing about the Third Circuit’s decision – is that it only applies in the Third Circuit, that is, the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. So until the United States Supreme Court decides otherwise (and they might!) employees throughout the rest of the country are still covered by the FRSA for their non-work related injuries.

That conclusion was given further strength by the United States Department of Labor, and its Administrative Review Board (ARB), which also hears and decides FRSA cases. In the case Williams v. Grand Truck Western Railroad, the ARB decided: “Third Circuit added a work-related limitation to the statute. We disagree with the Third Circuit's conclusion…” The ARB further decided, “we decline to apply the holding in PATH to cases not arising in the Third Circuit.”

So the takeaway here is that everywhere in the country, except Delaware, New Jersey, Pennsylvania, and the Virgin Islands, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the FRSA protects you for following your doctor’s orders.

No matter where you live, but especially if you live in the Third Circuit, you need experienced railroad attorneys to help you with any railroad-related claim. If you have been disciplined by the railroad for following your doctor’s order, contact us, no matter what state you live in!

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

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty

Friday, March 22, 2019

Part 1

It seems pretty obvious, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the law should protect you for following your doctor’s orders. A common part of a doctor’s medical treatment plan for someone with a serious injury, is to take them out of work. As anyone who works for a railroad knows, railroads can have harsh and punitive attendance policies. If you miss too much work, no matter the reason, the railroad may be looking to discipline you, or even terminate you.

But attendance-related discipline for people who are seriously ill or injured outside of work is wrong. Employees should be able to follow a doctor’s order not to work And again, the reason seems pretty obvious, because the safety of railroad employees, rail passengers, and those living and working near railroad tracks and yards, should be more important than forcing an ill or injured employee to come to work, just so he or she can avoid attendance-related discipline. Without legal protection, it’s clear what will happen – injured and ill employees will report to work to avoid attendance discipline, and endanger themselves and the public.

It would also seem pretty obvious that a law like the Federal Rail Safety Act (FRSA) should protect employees with non-work related medical conditions. After all, the stated purpose of the FRSA is, “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” And subsection (c)(2) of the FRSA seems to do just that: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…”

Well then, the law does what it’s supposed to do and everyone’s covered for their non-work related medical conditions – right? Wrong. We’ll see what went awry in Part 2.

Your Rights Under the Locomotive Inspection Act, a Helpful Tool in FELA Cases

Wednesday, May 09, 2018

When we meet with railroad engineers, they have often heard of the Locomotive Inspection Act, and ask what additional rights it provides to engineers (or any railroad employee injured on the locomotive engine). The Locomotive Inspection Act (originally called the Boiler Inspection Act) requires that railroads maintain their locomotives in a condition that is safe to operate. When they don’t, and an employee is injured because of it, the injured employee does not need to prove negligence by the railroad as part of their FELA claim.The employee only needs to prove that he or she was injured because of the railroad’s failure to maintain its locomotive. This is called strict liability. In addition, the railroad is denied any comparative negligence defense in the FELA claim. This means that even if the employee was partly at fault for the injury, the railroad is still responsible for the plaintiff’s full damages.The railroad cannot argue, as they often like to do in FELA cases that the employee’s violation of a safety rule caused or contributed to the injury.

Some examples of hazardous locomotive conditions that can result in strict liability for the railroad include slipping hazards such as grease, broken lights providing insufficient illumination, malfunctioning brakes, broken chairs, and broken grab irons. If you are ever injured on a locomotive engine, it is especially important to look around your surroundings to determine if there were any unsafe conditions on the locomotive that contributed to your injury.If so, it may be much easier for you to hold the railroad accountable in your FELA case.

Call or email me with questions:

H. David Leibensperger

hdavid@bsgfdlaw.com

410-769-5400

Proving FRSA Retaliation is Not as Difficult as You May Think

Tuesday, March 27, 2018

At the railroad union meetings we attend, we are often asked how it is possible to prove that a railroad is unlawfully retaliating against an employee for reporting an injury or safety complaint. After all, the railroad always gives a supposedly legitimate reason for its discipline. But it’s not as difficult as you might think to prove that the railroad is lying, and that the reason it gave for the discipline is just a pretext to punish you for reporting an injury or safety condition.

The United States Department of Labor and its Administrative Review Board are responsible for ruling on many FRSA whistleblower cases. Here’s what they recently said about proving discrimination: “We have said it many a time before, but we cannot say it enough,” all the railroader needs to prove is that the protected activity of reporting an injury or safety complaint, “alone or in combination with other factors, tends to affect in any way the outcome of the [disciplinary] decision.’” Palmer v. Canadian National Railway, ARB No. 16-035, slip op. at 56 (ARB Sept. 30, 2016). The Administrative Review Board stated that it wanted, “to reemphasize how low the standard is for the employee to meet, how ‘broad and forgiving’ it is.” Even if your protected activity of reporting an injury or safety complaint played only “an insignificant or insubstantial role” in the discipline, that is still enough. Also, if your protected activity and the employer’s given reasons both played a role, “the analysis is over and the employee prevails....”

What this means is that, even if the railroad had a “good” reason to discipline you (usually some trumped up charge), the railroad is still liable for discrimination if your protected activity played any role at all in causing the discipline. We don’t have to prove that your injury report or safety complaint was the only reason the railroad disciplined you; we just have to prove that it was one of the reasons, even an insignificant one.

For assistance with railroad injury cases please contact H. David Leibensperger

A Railroaders Right to Prompt Medical Treatment When Injured on the Job

Wednesday, January 31, 2018

I wanted to write this blog post because we regularly see clients who are injured while working for the railroad, but are then precluded from receiving medical treatment because railroad management keeps the employee on the property for hours and hours while a manager is called to come interrogate them.  In one case, an employee who was bleeding from his head was required by management to tie down his equipment before they would let him leave the property.  This is wrong; it shouldn’t happen.  But thankfully, the Federal Rail Safety Act, the FRSA, protects these employees.  The FRSA requires that a railroad promptly take an injured employee to receive medical treatment – if requested.  That is the key – the employee must actually request medical treatment in order to be entitled to receive it.

Clear Language About Injuries in the FRSA

The FRSA is very clear, “[i]f transportation to a hospital is requested by an employee…the railroad shall promptly arrange to have the injured employee transported to the nearest hospital….”You have an absolute right to be taken to the hospital when you request it.  Also, a railroad “may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment.”  That means the railroad can’t stop you from getting medical attention – or even delay it. Arguably, railroads that require employees to remain on property while a manager is called to conduct an “investigation,” are in violation of the FRSA and should be punished accordingly.

You Must Ask For Medical Treatment

We regularly see clients who are discouraged by the railroad from seeking medical treatment – this is also potentially a violation of the FRSA.  Unfortunately, we also see clients who don’t advocate for themselves and ask for medical attention.  Because of the protections of the FRSA, railroad employees should feel free to seek needed medical treatment, and request transportation to a hospital when necessary.

A railroad who denies or delays medical treatment to an employee may have to pay for that employee’s pain and suffering, as well as punitive damages and attorneys’ fees.  But it’s important to act fast, because you only have 180 days from the delay or denial of medical treatment to file an FRSA claim.  If you are injured on the railroad, it is important to consult with a knowledgeable attorney right away so that your rights under the FRSA are protected.

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.

Are You Being Targeted by a Railroad Double Standard?

Tuesday, August 29, 2017

It happens a lot around the railroad – double standards.  Jeff seems to always get away with wearing jewelry, but suddenly I’m the one getting busted!  Kevin’s absenteeism is much worse, but I’m the one being charged! There’s always someone hiding in the bushes watching me, but no one ever seems out to get anyone else! It’s because the railroads frequently punish employees who report injuries, hazardous safety conditions, or try to comply with their own doctor’s orders (which may include time off from work).

Protection of the FRSA

The Federal Rail Safety Act (“FRSA”) was designed to protect against exactly this kind of behavior.  The FRSA safeguards employees who notify the railroad of their (or a co-worker’s) work-related injury or illness, report a safety problem, refuse to do unsafe work, or comply with a doctor’s orders, among many other things. This is called “protected activity.” A railroad who knows an employee has engaged in protected activity cannot punish the employee by suspending them, terminating them, or discriminating against them in any way.

When Railroads Violate the FRSA through "Disparate Treatment"

An effective way of proving the railroad has violated the FRSA, is showing the railroad applied a double standard to you. This is known as “disparate treatment” – that the railroad treated you more harshly than others who did the same thing. Often railroads will find any excuse to fail an employee on an efficiency test to punish them. The railroad then uses the trumped up charges from the efficiency test to suspend or terminate the employee.  If other employees were not punished for the same conduct you were punished for, or if they were punished less harshly, this is good evidence the railroad has violated your rights under the FRSA. So if you find yourself thinking: everyone else is doing it; why am I being punished? It may be because the railroad is illegally retaliating against you.

What To Do Next

If should you have any questions regarding a double standard being applied to you, please not hesitate to contact our office for a consultation. Please visit our website or download our railroad worker smart phone here. You can also reach us directly by calling 800-248-FELA.

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.

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