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Railroad Injury Blog

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.

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.

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.

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.

Contributory and Comparative Negligence In FELA Cases

Thursday, October 06, 2016

As I indicated last week, to recover damages in a Federal Employers’ Liability Act (FELA) case, there is a requirement that the Railroad act negligently in producing a Railroader’s injuries.  Contributory negligence is a similar concept except that it’s an action or inaction on the part of the Railroader which leads in some manner to his/her own injury. In determining whether a Railroader was contributory negligence a determination is made as to whether he/she took, or failed to take, actions which a reasonably prudent person would have taken under the circumstances. If there is a finding that Railroader acted negligently and that negligence played any part in bringing about his/her own injuries that person will be deemed to be contributorily negligent.

A determination of contributory negligence does not bar a Railroader from recovering damages for his/her injuries. It does result in a reduction of damages in proportion to the amount of negligence attributed to the injured Railroader. This is the concept of comparative negligence. If the finder-of-fact (usually a jury) determines that the Railroader was contributorily negligent, it then must determine the percentage to which the Railroader’s own negligence contributed to his/her injuries. That percentage of negligence is then used to reduce the Railroader’s damages. For example, a jury determines that a Railroader is entitled to damages for his/her injuries in the amount of $1,000.000.00. The jury also makes the determination that the Railroader was contributorily negligent in causing his/her own injuries and that contributory negligence contributed 25% to those injuries. The Court would then reduce the damage award by 25% to $750,000.00.

The real importance of the concepts of contributory and comparative negligence is the fact that a Railroader can recover damages for his/her injuries event if he/she was partially at fault in causing them.

THE 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".

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