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Railroad Injury Blog

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.

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.

THE SQUEAKY WHEEL GETS THE GREASE

Thursday, October 06, 2016

Everyone has heard the above adage many times and understands what it means. One wonders whether the origin of this phrase comes from the Railroad Industry. In any event, it certainly has modern applicability to a Railroaders rights under the Federal Rail Safety Act Whistleblower Provisions.

One of the strongest provisions of the Federal Rail Safety Act Whistleblower Provisions prohibits a Railroad from denying, delaying or interfering in any way with the medical treatment of an employee who was injured during the course of employment. In addition, if the injured employee requests transportation to a medical facility, as a result of an injury during the course of employment, the Railroad is required to promptly arrange to have the injured Railroad employee transported to the nearest hospital (where the employee can receive safe and appropriate medical care). However, it is incumbent upon the employee to understand these rights and to affirmatively protect them. In other words, an employee must recognize when their employer is attempting to interfere with their medical treatment. This often arises in a context of a Railroad Official’s attempt to influence emergency room treatment. It is well known among Railroad Supervisors that if an emergency room physician prescribes medication or restricts the Railroad employee for working for a period of time, the injury becomes FRA reportable. Because a significant portion of a Railroad Supervisor’s bonus is based upon minimizing FRA reportable injuries, they are highly motivated to influence the emergency room physician against prescribing medication or restricting work activities. However, the Railroad worker must enforce these rights by informing hospital personnel that no medical information is to be discussed with anyone from the Railroad. In other words, "the squeaky wheel gets the grease".

In addition, an injured employee must affirmatively request transportation to the nearest hospital if injured during the course of their employment. If this right is not requested, then the previously mentioned provisions of the Federal Rail Safety Whistleblower Act are not triggered. "The squeaky wheel gets the grease".

What Makes A Good Railroad Injury Case?

Friday, April 29, 2016

I am often asked by clients, perspective clients and railroad employees I meet throughout my travels about what makes a good railroad (injury) case. Well, that is a difficult question to answer. I always start out by reminding railroaders that the Federal Employers’ Liability Act (FELA), is a negligence based law. The law requires that the railroad employer provide its employees with a “reasonably safe place in which to work.” What does that mean? It means, in most cases, that the railroad must have either created the dangerous condition causing the injury or the railroad had direct knowledge of the dangerous condition or, as an alternative, that it existed long enough that the railroad should have known.

Pre-Existing Dangerous Conditions

If we can prove that the railroad created the dangerous condition then we will meet our burden of proof. In most instances, however, we must rely on proving that the railroad knew or should have known of the dangerous condition. This highlights the importance of reporting by employees of unsafe conditions on a regular basis and the memorialization of those complaints in a written record. Notice of unsafe conditions to the railroad is clearly important to rectify an unsafe condition. As a reminder, reporting an unsafe condition is a protected activity under the Federal Rail Safety Act Whistleblower Provisions. However, this information can also be critical in an FELA case. Accordingly, I encourage all railroad employees to report unsafe conditions and document the reporting. Many Unions have legislative departments that are active with safety issues. They are often a good repository for these unsafe condition reports.

FELA Exemptions for Negligence

There are certain exceptions under the FELA to the negligence requirement. Specifically, claims arising under the Safety Appliance Act and the Locomotive Inspection Act are different. However, in the vast majority of claims it is important that we have information to prove that the railroad knew or should have known of the dangerous condition. Please help keep your railroad safe by reporting unsafe conditions. Hopefully, this will prompt the railroad to correct the condition and improve the safety or the railroad. If not, the information may prove critical in assisting a co-employee in recovering the damages he or she is entitled to under the FELA.

By Matt Darby

Vision Certification Issues For Railroad Conductors And Engineers

Thursday, March 17, 2016

I have received numerous calls recently from Railroad Engineers and Conductors from across the nation regarding certification issues, especially with regard to visual color deficiencies and visual acuity issues. It is important to understand that the Railroads are struggling with the appropriate methods with which to measure color vision deficiency and visual acuity deficiencies in field testing. If an Engineer or Conductor has failed a clinical test for color blindness or visual acuity, it is important that they understand the field testing procedures. The Federal Railroad Administration has recently issued an interpretation to clarify the provisions of its Locomotive Engineer and Conductor Qualification and Certification Regulations with respect to visual standards and field testing. Prior to undergoing field testing, it is important for Engineers and Conductors to understand this process.

Vision Certification Testing Standards

The Federal Railroad Administration has received numerous inquiries from Railroads as to how this type of testing should be conducted. In addition, my Firm has been in the process of appealing disqualifications of Engineers and Conductors to the Locomotive Engineer Review Board and the Operating Crew Review Board on behalf of clients who have either failed field testing procedures or have otherwise recently been denied re-certification because of visual impairments. The process is challenging and it important for these individuals to understand their rights with regard to this issue, since it can effectively derail their careers.

Job Function and Environment Matter

First, it is important to understand that the Railroad’s Medical Departments have significant latitude in certifying Engineers and Conductors despite visual impairments. This latitude involves conditional certification for allowing Engineers and Conductors to continue to work under certain circumstances. For example, an Engineer may be allowed to continue to work despite a color vision deficiency if the Engineer works in an area where the railroad signal aspects are positional rather than color based. Also, Conductors may be certified if they are not normally required to recognize signals during the course of their work day. More importantly, Railroads are inconsistently applying field testing procedures.

As a result of these issues, the Federal Railroad Administration has issued an interim interpretation to provide guidance to railroads as to how to properly administer a field test. It has been my experience that Railroads are inappropriately administering field tests to the detriment of long standing employees who have demonstrated the ability to work safety despite their vision deficiencies.

What Railroad Employees Should Do Prior To a Field Test

It is important for any employees facing a field test because of a visual deficiency to contact experienced Railroad Counsel to provide guidance in this area. If faced with an inappropriate field test, the individual should engage their union representation to help ensure that the field test is appropriately and fairly administered. In addition, if the employee does not pass the field test, and is ultimately denied re-certification, there are procedures that need to be followed and time limits regarding an appeal to the Locomotive Engineer Review Board or the Operating Crew Review Board in order to preserve their rights to re-certification. My office is available to assist any railroad union employee in this regard.

Ready for The Next Step?

If you are an employee working for a railroad and are concerned about the outcome and administration of a pending field test for your visual acuity please contact Matt Darby at 410-769-5400 or toll free at 800-248-3352.

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

How Often Do Amtrak Trains Derail?

Thursday, May 14, 2015

The Washington Post issued an article about the rail agency’s history and what causes derailments. Read the article here.

By Matt Darby

NTSB Release Video Of Its Amtrak Derailment Investigation

Wednesday, May 13, 2015

Earlier today the National Transportation Safety Board (NTSB) released video concerning its investigation of the Philadelphia Amtrak derailment.

Watch it here.

By Matt Darby

NTSB Confirms That Derailed Amtrak Train Was Traveling More Than 100 MPH

Wednesday, May 13, 2015

The NTSB confirmed in a Tweet earlier today that the Amtrak train involved in yesterday’s derailment in Philadelphia was traveling more than 100 MPH. This was more than twice the speed permitted in the location where the derailment occurred.

By Matt Darby

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