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Railroad Injury Blog

FELA Death Benefits – After the Worst Thing Happens

Thursday, May 07, 2020

Railroading is a dangerous business – there is no doubt about it. I’ve heard many people say that railroad operating rules are written in blood. But sometimes, even if you do everything right, the worst thing imaginable can still happen. Planning ahead for that possibility is the responsible thing to do, and there is no time like the present to share with your spouse or other loved ones, what they need to know in the event of a railroader’s death at work. This is especially true now, when this article is being published, as the coronavirus pandemic spreads.

If a railroader dies from injuries (or illness) sustained at work, the FELA allows the deceased railroader’s “personal representative” (sometimes called an “executor” or “administrator”) to bring a lawsuit under the FELA. Only certain people are entitled to recover damages in the event of a railroader’s death. First are the surviving spouse and children of the railroader – this includes adult children. If there is no spouse or children, then the employee’s parents can recover. If there are also no parents, then the railroader’s next of kin are entitled to recover, but only if they are “dependent” on the railroader financially.

The damages available for a railroader’s death are somewhat limited, and can create unreasonable results. For example, if a young unmarried railroader is killed instantaneously by an oncoming train, there may be limited damages available for the grieving parents. Let’s look at the damages available, and then I will explain why. Here is what can be recovered for a railroader’s death:

 

  1. The loss of support and other financial benefits they would have received from the deceased railroader (generally speaking, this means wages, money, and benefits like health insurance);
  2. Loss of services the deceased railroader would have provided to them (generally speaking, this means household chores and child care);
  3. If the plaintiffs include minor children, the loss of the railroader’s care, attention, instruction, training, advice and guidance;
  4. Any pain and suffering experienced by railroader before they died; and
  5. The reasonable expense of medical care needed by the railroader before they died. (However, in most cases, the railroader’s medical expenses have been paid by the railroad.)

Assuming the grieving parents in my example above were employed and not relying on the railroader’s income or services, you can see how the damages they could recover would be very limited if their son or daughter was killed instantaneously and did not experience any pain or suffering. The same scenario would unfortunately apply to grieving adult children, who are no longer dependent on their parents’ wages or services. Another unreasonable result is that the emotional pain and suffering of the deceased railroader’s loved ones is not taken into account at all. The grief of those left behind is unfortunately not counted by the FELA.

It is also important to remember that, like any other FELA claim, we will have to be able to prove at least “slight negligence” on the part of the railroad in causing the death. The railroad will almost always argue that the railroader was the cause of their own death, so it is important to have attorneys who understand railroading and how the railroads will try to twist the facts against their own deceased worker. The railroad may also try to make a quick lowball offer to the grieving family to avoid litigation; again it is important for an attorney to be consulted so that family members understand the full value of their potential claim. If you have questions about any of the information discussed above, or would simply like an attorney to talk with your spouse or loved one, please contact us at hdavid@bsgfdlaw.com or 410.769.5400.

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

The Interchange of Coronavirus, Federal Regulations, the FELA, and the FRSA – Part 3 of 3

Thursday, April 16, 2020

Part III – Manifest: Can the FRSA Protect Your Safety Concerns?

The railroads refuse to do anything to protect you from the coronavirus. So many railroaders are asking us, is there anything contained in the Federal Rail Safety Act to protect railroaders who make safety complaints related to coronavirus?

The FRSA makes it illegal for railroads to discipline you, or discriminate against you in any way, for reporting a hazardous safety condition. Courts have held that reporting all sorts of conditions – from concerns about working in proximity bedbugs, to insufficient training, to a lack of walkways, and concerns about smoky odors – are protected under the FRSA. Reporting your safety concerns related to coronavirus are likewise protected by the FRSA.

You should stand up for yourself, your health, and your co-workers and let the railroad know it should be sanitizing locomotives between shifts; it should be providing employees with masks and gloves or, at the very least, allowing employees to wear them; it should be sanitizing common areas; it should be monitoring fellow employees for symptoms, including their temperatures before allowing them to perform service; and it should immediately isolate any employees who show symptoms of coronavirus. It always helps to have witnesses present when you make these complaints, and to make clear to management that coronavirus is a known hazardous safety condition that the railroad should be protecting against. If you have any sense that management might be retaliating against you after you report these concerns, contact us right away; it is the best way to protect yourself before the railroad tries to discipline you.

Refusing to work when the railroad refuses to address your safety concerns creates more of an uphill battle. No one wants to work knowing they are being exposed to a deadly virus, but the FRSA does not protect every refusal to work.

The FRSA protects an employee’s refusal to work when confronted with a hazardous safety condition, only if three things are present: (1) there is no reasonable alternative except the refusal; (2) the hazardous condition presents an imminent danger of death or serious injury; and (3) the urgency of the situation does not allow sufficient time to eliminate the danger. Perhaps the clearest situation when a refusal may be appropriate is if a co-worker is showing signs of coronavirus infection and the railroad is demanding that you work side-by-side with that employee, or if such an employee just left a workstation and the railroad demands that you work there without sanitizing it first. If such a situation arises, contact us or your union representative if you are able to, prior to the refusal. But if you make the choice to stand up for your health and your co-workers by refusing to work under dangerous conditions, we will be there to fight for you under the FRSA. When any dispute with management arises at work, the sooner you contact legal counsel the better. 410-769-5400, hdavid@bsgfdlaw.com

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

The Interchange of Coronavirus, Federal Regulations, the FELA, and the FRSA

Tuesday, April 14, 2020

Part II – Slack Action: How the FELA Can Protect You If You Contract the Coronavirus.

The railroads' refusal to undertake even the most basic safety measures is going to bunch down the consist until the slack runs out and has dangerous consequences. Railroaders will get sick. So many railroaders are asking us right now: does the FELA protect railroaders who contract the coronavirus at work?

The FELA requires proof of "slight" negligence on the part of the railroad. This includes that the railroad was aware of a dangerous condition, but failed to take reasonable steps to correct it. There can be no doubt that the railroads know about the dangers created by the coronavirus, and know about the steps that could be taken to help the problem (like sanitizing equipment). This is especially true given the petitions filed with the FRA by both SMART and the AAR.

The FELA also requires proof of something called “causation” – meaning we would have to prove that the railroad's failure to take appropriate safety measures caused you to contract coronavirus. This is difficult, but not impossible. The railroads have refused the reasonable precautions suggested by SMART as well as those being suggested by employees on the ground. We know from government officials like the CDC that those measures, if implemented, would protect employees.

First, we will need to prove that a co-worker you came in contact with at work had coronavirus before you did. Railroaders should keep track of who they work with and when, and the names of any employees who are reported to have coronavirus or coronavirus symptoms.

Second, because the coronavirus is highly infectious and transmitted in any public place, we would have to prove that you did not contract coronavirus from someplace else. The best way to prove this is by demonstrating that no one you had contact with outside of work had coronavirus. It is important to know if anyone you have been associating with outside of work ever had coronavirus. Proving you contracted coronavirus at work can also be proven by demonstrating you were protecting yourself in your daily activities outside of work – wearing a mask and gloves in public, no non-essential travel, not getting any closer than 6 feet to anyone who you do not live with, regularly washing your hands and not touching your face, and generally following the guidelines issued by the government. Following the government’s health guidelines are important not just for your safety, but for protecting your rights under the FELA. If you continue to socialize freely outside of work, we will never be able to prove where you contracted coronavirus.

If the railroads continue to refuse basic safety measures to their employees, they will reap what they sow. If you suspect you or a co-worker has contracted coronavirus at work, contact us right away. 410-769-5400, hdavid@bsgfdlaw.com

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

The Interchange of Coronavirus, Federal Regulations, the FELA, and the FRSA – Part 1 of 3

Friday, April 10, 2020

Part I – Bad Order: the FRA is No Longer Looking Out for Your Safety, Period.

There is a mechanical defect here – a big one. As many of you may already know, the SMART Transportation Union sent an Emergency Petition to the Federal Railroad Administration – the agency whose mission is supposed to be the safe operation of trains nationwide – to address the unique safety conditions arising from the novel coronavirus (COVID-19). SMART's Emergency Petition included basic requests to impose safety standards related to: locomotive sanitation, common room sanitation, employee temperature observation, transportation to lodging facilities, how to treat employees who develop coronavirus symptoms, and a furlough recall to deal with anticipated workforce shortages.

Did the FRA grant that petition and afford workers’ these basic safety measures in these extraordinary and dangerous times? No. Instead, this Administration's FRA granted a petition from the Association of American Railroads allowing a waiver of rail safety regulations, endangering the lives of railroaders and the general public for profit. The waived safety regulations include: track inspections under Part 213, engineer qualifications on territory they are unfamiliar with, and suspending the 60-day deadline for railroads to respond to petitions to the Locomotive Engineer Review Board and the Operating Crew Review Board. None of the safety measures suggested by SMART were adopted. Somehow this Administration’s FRA deemed that suspending operational testing – where managers hide in the bushes hundreds of feet away – "is consistent with CDC guidance related to social distancing," but SMART's request for the immediate isolation of employees exhibiting coronavirus symptoms, is not. It’s outrageous!

Let your elected representatives know that an emergency like this is not the time to relax safety regulations – it simply gives the railroads that transport deadly explosive materials throughout the country permission to operate less safely at a time when the country cannot afford major rail disasters. Let them know you support the safety measures proposed by SMART. You can use this link to find out who your representatives are, and contact them.

If you suspect you or a co-worker has contracted coronavirus at work, contact us right away, we will fight for your rights under the FELA. 410-769-5400, hdavid@bsgfdlaw.com

Attorney David Leibensperger

David Leibensperger
hleibensperger@bsgfdlaw.com

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

The FELA Statute of Limitations Part 1 – What Is a Statute of Limitations?

Friday, June 07, 2019

The Federal Employers’ Liability Act (FELA) contains a three-year statute of limitations. But what is a statute of limitations? It is a law that sets the time limit for filing a lawsuit. If an FELA lawsuit is not filed within the three years (what is sometimes called the “limitations period”), it is likely that the court will dismiss the lawsuit, and the employee will receive no compensation. Importantly, what has to be done within the three-year limitations period is the actual filing of a written complaint with the court. Merely notifying the railroad of an injury is not enough. Engaging in settlement discussions is not enough. A formal legal complaint must be filed with the court.

In certain situations, which are very uncommon, a court may extend the time for filing a lawsuit. This is known as “tolling.” For example, tolling may occur if the railroad has intimidated the employee into not filing a lawsuit, or if the injured railroad worker becomes mentally incapacitated. Whether the time period can be extended depends greatly on the facts of the particular case. The best course of action is to assume that the statute of limitations for an FELA case will be no longer than three years.

The purpose of a statute of limitations is primarily to protect defendants, in this case railroads. The law presumes that after a certain amount of time, a party should no longer have to worry about past claims. But another purpose of the law protects both parties - the deterioration and loss of evidence. As time passes, memories fade and documents get lost or thrown away. Bringing a claim timely benefits both parties by making the best evidence available to them both.

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 next two parts of this series, we'll examine how the statute of limitations is different in an injury claim, versus and occupational or repetitive injury claim.

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 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!

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