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Railroad Injury Blog

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

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

Why Railroad Employees Don’t Report Injuries

Thursday, April 07, 2016

Whenever I speak at a Railroad Union Meeting, I emphasize the importance of reporting any injury, no matter how insignificant it may seem at the time. The older railroad employees in attendance invariably raise their hand and relate stories of co-workers who were fired on trumped up charges after reporting an injury. No doubt, that scenario has occurred countless times on the Railroad. It is a small wonder why railroad employees hesitate to report injuries.

The Power of the FRSA

However, railroad employees have a powerful weapon to use against such harassing and intimidating actions by Railroad Management. Under the Federal Rail Safety Act (FRSA) Whistleblower Provisions, an employee has a separate claim if he or she is disciplined in any way as a result of reporting an injury. The provisions of the FRSA are quite powerful and can effect a change in the culture, but only if railroad employees are made aware of the existence of the law and change their behavior. An experienced Railroad Attorney can assist an employee with this type of a case.

Whistleblower Law NOT Just for Injuries

I often receive calls from railroad employees and Local Chairperson on this issue. It is important to think about a potential FRSA Whistleblower Case in any disciplinary proceeding. Certainly, if an employee is disciplined for a rule violation connected with the reporting of an injury, the FRSA Whistleblower Law is always an issue. However, the Whistleblower Law also applies to other safety related issues, such as reporting unsafe conditions. I frequently counsel Local Chairperson to interject into the investigation proceeding a claim that the Whistleblower Law is being violated. This may assist down the road with the potential Whistleblower Claim if the Railroad persists with the discipline. Even accepting a waiver in lieu of proceeding with an investigation can still give rise to a Whistleblower Claim. In fact, the mere receipt of a Charge Letter by a railroad employee is enough to trigger the protections of the Federal Rail Safety Act.

Culture Change within Railroad Organizations

As all railroaders know, the culture on the Railroad needs to change with regard to safety. Knowing your rights and utilizing the provisions of the FRSA will go far in effecting this cultural change.

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

Reuters Reports That Paralyzed Passenger Has Sued Over Metro-North Crash

Wednesday, April 09, 2014

Reuters has reported that a 39 year old Metro-North passenger who was paralyzed as a result of the December 1, 2013 crash has sued for $100,000,000.00. Samuel Rivera, an employee of Metro-North, who was off-duty at the time of the incident, was left a quadriplegic. His doctors feel that his condition is permanent and it is unlikely that he will ever regain the ability to move his limbs. Rivera’s lawsuit is the seventh resulting from the crash. The Reuters article can be found here.

The Wall Street Journal reported about the first lawsuit filed in connection with the crash...read about it here.

By Matt Darby

2 Killed In Collision WIth MARC Commuter Rail

Wednesday, December 11, 2013

Yesterday, two people were killed in Baltimore as a the result of collision between a car and a MARC commuter rail. None of the train’s crew or any of passengers were injured.

A link to the news story can be found here.

By Matt Darby

Conrail Responds To Paulsboro Lawsuit

Thursday, October 03, 2013

The Associated Press reported yesterday that Consolidated Rail Corporatoin (Conrail) had responded to a lawsuit filed by Plaintiffs claiming damages arising from the Paulsboro, New Jersey derailment that occurred on November 30, 2012. That derailment resulted in the release of more 100,000 pounds of vinyl chloride gas. The lawsuit filed in U.S. District Court in Camden, New Jersey claims, amongst other things, that Plaintiffs are entiled to medical monitoring to detect any long-term effects they might suffer from their exposure to the vinyl chloride gas. Conrail has filed with the Court a motion to dismiss this claim and the claim of trespass from the vinyl chloride.

A link to yesterday’s article can be found here.

By Matt Darby

Amtrak Injury Report

Thursday, October 03, 2013

The Amtrak injury report is called a NRPC 260. It is important that the form be completed accurately and completely. Any information regarding the cause of the injury should be included.

The important sections of the NRPC 260 are:

  • Descibe fully how the accident occurred: In this section, it is important to provide a brief description of what happened.
  • Describe cause of accident: 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.
  • Describe injury/ Illness: In this section, it is important to list any areas of your body in which you are feeling pain or discomfort. The railroad may argue that any area of your body not listed in this section was not injured in the accident.

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

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

Recorded Statements Are A Bad Idea

Monday, July 01, 2013

Often after a Railroader gets injured on the job, he or she receives a friendly phone call from a claim’s agent requesting a recorded statement concerning how the accident occurred and the injuries sustained. Often, the claim’s agent makes it appear that such a statement is standard procedure and is required by the Railroad’s rules. Other times, the claim’s agent indicates that an injury claim cannot go forward without such a statement.

Neither are true. While an injured Railroader is required under the Railroad’s rules to report an injury and complete an accident report as soon as possible, there is no rule or regulation that requires a recorded statement be provided to a claim’s agent. As a result, DO NOT GIVE ONE. The purpose of the recorded statement is to help the Railroad and not you. The claim’s agent is going use the statement regarding how the accident occurred to try to minimize or eliminate the Railroad’s liability under the FELA.

See here and here. He or she will likely ask you questions concerning the cause of the accident in a way that twists the truth about what really happened. Also, the claim’s agent will use the statement to diminish your clam by asking questions in a manner that minimizes the injuries you sustained. Remember, the statement is RECORDED. That means that once you have given it, you can’t go back and change or correct what you said even if you made a mistake.

By Matt Darby

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