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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.

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.

Could Some Railroads Soon Be Immune from Lawsuits?

Wednesday, May 23, 2018

Recently we have heard from several railroaders about the potential for state-affiliated railroads to be granted immunity from lawsuits, including Federal Employers’ Liability Act (FELA) and Federal Railroad Safety Act (FRSA) claims.This is in response to a recent decision from the United States Court of Appeals for the Third Circuit, holding that New Jersey Transit is an arm of the State of New Jersey, and is therefore entitled to immunity from lawsuits under the 11th Amendment to the U.S. Constitution.That case was Karns v. Shanahan, 879 F.3d 504 (3d Cir. 2018). The Karns decision could have negative implications for state-affiliated railroads across the country, such as Metro-North, PATH, and Amtrak.

The Karns case is being appealed, and will hopefully be overturned. Our firm is working to overturn Karns by establishing a strong record in lower courts, so it is important to bring claims forward now. However, if New Jersey Transit’s argument is accepted, it will mean that the most dangerous commuter railroad in the country (according to FRA data), will be able to avoid liability for the injuries and deaths that it causes. In 2016, the Associated Press reported that, “NJ Transit had a significantly higher accident rate…than the rest of the nation’s 10 largest commuter railroads.”The railroad would also be immune from actions to enforce collective bargaining agreements under the Railway Labor Act. As a result, the railroad would not have the incentive that is created by lawsuits to improve safety. This lack of incentive to improve safety would make injuries and deaths on the railroad more likely, both for employees and the traveling public.

In 1989, the same court that decided Karns held that New Jersey Transit did not have 11th Amendment immunity. That case was Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). Hopefully other courts that decide this issue will recognize that the Fitchik decision was the right one.The consequences of deciding that New Jersey Transit and other state-affiliated railroads are immune from suit would be dire. It would essentially exempt these railroads from federal laws and regulations, not just the FELA and FRSA.  Employees will no longer be protected by OSHA, or wage and hour laws. The railroads would no longer be bound by the Americans with Disabilities Act, Federal Civil Rights laws, Federal Highway Safety Administration regulations, and Federal Railroad Administration regulations. These laws and regulations are intended to protect railroad employees, passengers, and those who live and work near where the railroads operate.  The potential for catastrophe is obvious, and thousands of railroad employees could lose their right to recover for their injuries.

These issues have not yet been conclusively decided, but they could be soon.  If you were injured by your railroad employer, or retaliated against for reporting an injury or making a safety complaint, it’s important to act quickly to protect your rights and contact an attorney knowledgeable in these areas of law.

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.

10 Proven Ways to Make Your FELA Case More Valuable

Monday, January 16, 2017

The Federal Employers’ Liability Act (“FELA”) protects railroad employees who are injured due to the railroad’s negligence. Under the FELA, the railroad is still liable even if it is only slightly negligent, even if the employee assumed the risk of their injuries, and even if the employee’s own negligence contributed to their injuries.

The benefits of the FELA aren’t automatic, the employee still has to prove their case that the railroad was negligent, and that they suffered harm.We have handled cases under almost every conceivable factual situation and have seen what makes a case successful.So, we have decided to come up with some things an injured railroader can do to help make sure they recover the appropriate damages as the result of their injuries.

10 Tips To Improve the Value of Your FELA Case

Here are 10 proven ways for railroad employees to make their FELA claims more valuable:

  1. Take pictures – take pictures of the effects of your injury.This will help show how significant your injury is.
  2. Do not take video with audio – although it might seem helpful to narrate a video about your injury, your statements in the video will be used against you later.A video without audio showing the injury itself is just fine.
  3. Tell your doctors – when you get treated for your injury, explain to the doctors exactly how it happened, and that it happened at work.
  4. Ask your co-workers – did someone see the injury happen? Has anyone previously reported to the railroad the dangerous condition that injured you? These witnesses can be very helpful to your case.
  5. Stay off social media – Facebook, Instagram, Twitter, Tumblr, these are your enemies. They make money by sharing the details of your life with advertisers. Don’t let them ruin your FELA case by sharing the details of your life with the railroad. The railroad will try to use any picture or statement you make against you.
  6. Do your best to get back to work – everyone knows the best outcome for you is to get better and get back on the job. If your injury precludes you from railroad work, do your best to seek other employment that you are qualified for. FELA cases are always best for those who do their best to help themselves.
  7. But follow your doctor’s orders – if you really can’t work, then you can’t work, and you should always follow all of your doctor’s orders, a right protected under the FRSA Whistleblower law.
  8. Tell the railroad it was at fault – your employer will likely make you fill out a written statement about your injury.It will include a space to describe who was at fault. If the railroad was at fault, say so on the form.
  9. But don’t give a recorded statement – If a railroad claims agent calls you to record an oral statement about your injury, tell them to take a hike (nicely). You don’t have to give the statement, and the railroad only wants to use the statement against you.
  10. You guessed it – call a lawyer! The FELA is a murky federal statute with many twists and turns; you don’t want to try to navigate it on your own. Only lawyers experienced in FELA litigation will be able to help you with the sensitive matter and make the railroad responsible for the injury it caused.

If you should have any questions regarding a potential railroad injury case, please do not hesitate to contact our office for a consultation. Please visit our website at BermanAndDarby.com and download our railroad worker smart phone app. You can also reach us at 800-248-FELA.

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

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