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Railroad Injury Blog

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 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

Why We Need The FELA

Friday, June 10, 2016

I recently had the pleasure of speaking at two (2) Union Meetings, one in West Seneca, New York and the other in Altoona, Pennsylvania. One of the themes of the presentation dealt with the importance of the Federal Employers’ Liability Act (FELA). We had some really good discussions and I thought it would be a good topic for a blog, so here I go. In contrast to State Workers’ Compensation Laws, the FELA requires that an injured employee prove that he or she did not have a reasonably safe place in which to work in order to recover any damages, including lost wages. In other words, there must be a showing that the railroad was negligent. At the meetings, it was clear that there was a question as to why the FELA is necessary.

The History and Purpose of FELA

In order to understand this very astute question, it is important for us to understand the historical purpose of the FELA. All railroad employees recognize that railroad work is dangerous. At the time that the FELA was passed in 1908, 4,500 railroad workers died and nearly 88,000 were injured performing railroad work. In response to the carnage taking place along the nation’s tracks, Congress enacted the FELA. The purpose of the FELA was appropriately summarized by Supreme Court Justice William O. Douglas when he said “the Federal Employers’ Liability Act was designed to put on the railroad industry some of the costs of the legs, arms, eyes and lives which it consumed in its operation”. Therefore, the FELA was designed to achieve two (2) goals. First, it was designed to provide injured railroad workers or their surviving family members fair compensation for injuries and deaths sustained while working on the railroad. Of equal importance, the FELA creates a financial incentive for railroads to improve safety. The New York Times published a Pulitzer Prize – winning expose in 2005 which confirmed that railroad work is still dangerous. The New York Times concluded that left to their own devices, railroads skimp on safety and cover up wrong doing. This is hardly a secret to those working for a railroad!

The Whistleblower Provision of FELA

The culture found on railroads was further evidenced by Congress’ decision to pass the 2007 Amendments to the Federal Rail Safety Act, which included a very strong Whistleblower provision. Obviously, Congress felt that railroads still needed an additional incentive to create a safe place for employees’ to work as well as a law for compensating railroad employees who report unsafe conditions. Again, an attempt to create a financial incentive for railroads to do the right thing.

Therefore, in answer to the question posed at my two (2) recent meetings, the reason that the FELA requires a showing of negligence is that it is an important component of railroad safety. Left to their own devices, railroads would simply ignore safety and treat their employees like any other piece of equipment; they would simply get rid of it when it was no longer profitable.

By Matt Darby

When Should An Injured Employee Give A Recorded Statement To The Railroad Claims Agent?

Wednesday, May 25, 2016

I am frequently asked the question of when an injured railroad employee should provide the Railroad’s Claims Agent with a recorded statement. The short answer is “when hell freezes over.”

The Real Purpose of a Recorded Statement

There is no advantage to an employee giving anyone from the Claims Department a recorded statement following an injury. The purpose of any recorded statement is merely to memorialize information that will be helpful to the Railroad in defending the case in court. Often, the Railroad’s Claims Agent will contact the employee and request a that a recorded statement be given following an injury. This is done under the guise of fact finding and information gathering. However, the real purpose of the recorded statement is to elicit information that can be used in court against the employee.

What You Say Can, and Will, Be Used Against You

I am blogging about this issue now because I have recently handled several cases in which recorded statements have severely hurt my clients’ cases. The Claims Agents are trained on the legal issues under the Federal Employers Liability Act (FELA). It is important to remember that in order to recover under the FELA, and employee must show that the Railroad was negligent or, stated differently, the Railroad failed to provide the injured employee with a reasonably safe place in which to work. At the time that a recorded statement is given, a full investigation obviously has not taken place. Information which may become available later will look fabricated if an employee denies facts that may become relevant later on after the case has been fully investigated. It is very damaging for a Jury to hear, in a railroad employees own words, information that contradicts what a subsequent investigation may reveal. The damage, in some cases, can be fatal.

The Claims Agent will also seek information that may help defend the case in other areas, such as information about prior injuries or pre-existing conditions which the Railroad may argue later are relevant to the issue of medical causation. In other words, the issue of whether or not the subject accident involving the injured employee was the cause of the damages alleged in a potential FELA claim.

So What IS an Injured Employee’s Obligation When Reporting an Injury?

The only obligation an injured railroad employee has is to complete the Railroad’s Injury Report. Those injury reports range from very detailed (ex. Those required by CSX Transportation), to very general (ex. Those required by Amtrak and others). The Injury Reports and the important sections thereof can be reviewed on my Legal App, which can be found by searching Matt Darby and Railroad in your smart phone’s App Store. Once that Injury Report is completed, the employee is under no obligation, legal or otherwise, to provide the Claims Department with a recorded statement (of any kind).

Why Sharing This Information Matters

Please help me get the word out by sharing this information with your fellow railroad workers. No one wants to be in the position of being injured on the Railroad. However, given the dangerous nature of the work, it is likely that at least some point during your career you may sustain an injury. This information could be the difference between a successful FELA Claim and one in which recovery may be limited.

By Matt Darby

Injured Employee’s Rights With Regard To Medical Treatment

Monday, April 11, 2016

Whenever an employee is injured during the course of their employment on a Railroad, it is important to understand that the employee can seek medical treatment with health care providers of his or her choice. This right is ingrained in the Federal Employers’ Liability Act (FELA) and is one of the most important rights that an injured railroad employee enjoys. In fact, this right is so important that when the Federal Rail Safety Act (FRSA) was amended in 2007 to include a Whistleblower Provision, medical treatment issues were also included. Therefore, if a Railroad interferes with an injured employee’s right to medical treatment in any way, the attempt may give rise to a separate claim under the FRSA.

When Injured…Get Representation

This issue frequently arises with employees who are unrepresented by an attorney familiar with the Federal Employers Liability Act (FELA). Often times, Railroads will hire “Nurse Case Managers” ostensibly to help the employee obtain appropriate medical care. However, these “Nurse Case Managers” are often unfamiliar with medical rights under the FELA or intentionally disregard this important provision of the law. It is also important to understand that all health care providers are familiar with the practice in State Workers’ Compensation Claims where the Workers’ Compensation Insurer has the right to approve or disapprove medical treatment. Since the vast majority of injured workers are covered by a State Workers’ Compensation Law, as opposed to the FELA, providers are often susceptible to the inference that the “Nurse Case Manager” has the ability to approve or, more importantly, disapprove medical care. This is absolutely false.

A Strong Medical Advocate in Your Corner

Medical issues, second only to issues of negligence or liability are often critical in a successful FELA claim. Invariably, the Railroad will hire a physician to provide the opinion that, despite all evidence to the contrary, an employee’s medical condition is not related to the subject railroad accident. It will often allege that the condition was due to long standing degenerative changes or other causes. Therefore, it is important to have a strong medical advocate in your corner when pursuing an FELA claim. An Attorney experienced in FELA cases can educate your treating doctor about the differences between the FELA and the State Workers’ Compensation System and also inform the doctors about the nature of Railroad work. Often, a doctor’s only experience with railroad work may be with conductors on passenger rail service.

The Right Medical Expert Matters

Accordingly, it is critical that injured railroad employees immediately seek medical care with physicians who are independent of the Railroad and will have the injured employee’s best interest at heart. Any attempt by the Railroad to control medical treatment or influence treatment in any way should be met with a claim under the FRSA for damages available under that law.

By Matt Darby

Do NOT Ignore Letters From A Railroad Vocational Rehabilitation Department

Friday, March 18, 2016

I often become involved in claims for injured Railroad employees several months or even a year or more after the injury. My advice and representation is requested because of concern over the potential career limiting aspects of a serious injury. It is not unusual for me to find that the Railroad’s Vocational Rehabilitation Department has sent the new client letters requesting participation in what is called the Railroad’s “Vocational Rehabilitation Program”.

True Identity of a Vocational Rehabilitation Program

The problem lies in the fact that the “Vocational Rehabilitation Program” is really an arm of the Claims Department. The Railroad hopes that the employee, or an inexperienced Federal Employers Liability Act Attorney, will ignore the vocational rehabilitation letters. This allows the Railroad to argue at trial that the employee did not take advantage of assistance that the Railroad was prepared to offer to help the employee to obtain employment either at the Railroad or employment outside of the Railroad. This can be a powerful argument before a Jury. Often times, the most significant aspect of any serious injury claim is the lost wages and benefits that the injured employee is losing as a result of an inability to return to work on the Railroad. Accordingly, the Railroads are well versed in battling these issues on all fronts, including through their so called “Vocational Rehabilitation Program”.

Why an Experienced FELA Attorney Matters

Rather than ignore these letters, an experienced Federal Employers Liability Act Counsel will respond appropriately to the letters to shift the emphasis away from what the injured employee allegedly failed to do and highlight the fact that the Railroad, which employs thousands and thousands of employees, has not stepped up to assist the injured employee by offering suitable alternative employment within the Railroad. The last thing that an injured employee would want to have happen is to “win” the FELA case by proving that his or her injury was due to the Railroad’s failure to provide a reasonably safe place in which to work but lose the battle by receiving an inadequate damages aware because the employee ignored letters from the Railroad’s “Vocational Rehabilitation Department”.

What to Do Next?

If an employee is in a situation like the kind described above, it is important that he or she seek out an experienced FELA Counsel to assist in rebutting this tactic by the Railroads.

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

Partner Matt Darby Joins ARLA Board

Wednesday, May 13, 2015

Partner Matt Darby has recently been elected a board member of ARLA. ARLA, the Acadamy of Rail Labor Attorneys, is a professional association of plaintiffs’ attorneys whose practice includes the representation of railroad workers and their families under the Federal Employers’ Liability Act (FELA). To read more about ARLA click here.

By Matt Darby

FRA Shuts Down Due To Lack Of Appropriations

Thursday, October 03, 2013

The Federal Rail Administration (FRA) is a victim of the federal government shutdown: read about it here.

By Matt Darby

Norfolk Southern Railway Company Injury Report

Thursday, August 22, 2013

The Norfolk Southern injury report is called a Form 22. It is important that the Form 22 be completed accurately and completely. Any information regarding the cause of the injury should be included.

The important sections of the Form 22 are:

  • Describe What Happened: In this section, it is important to list any defective equipment, unsafe conditions or other factors that may have caused or contributed to your injury. Do not include any extra information that is not relevant to the cause of your injury.
  • Do You Desire Medical Treatment At This Time: If you are experiencing any pain or discomfort as a result of the incident, you should seek medical care. Under the FRSA, the railroad cannot interfere in any way with your medical care. In addition, if requested, the railroad must take you to the closest appropriate medical facility. See here.

It is important to obtain a copy of your injury report. Refer to the report if questioned at a later time about the cause or nature of the injury.

Here is an image of Norfolk Southern Form 22: click here.

By Matt Darby

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