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Railroad Injury Blog

Contributory And Comparitive Negligence In FELA Cases

Saturday, February 23, 2013

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. See here. 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.

By Matt Darby

CSXT’s Accident And Fatality Record

Thursday, February 21, 2013

Today the Baltimore Sun published a graphic concerning CSXT’s accident and fatality record in Maryland and nationwide.

That data can be found here.

By Matt Darby

Negligence And FELA Claims

Friday, February 15, 2013

Unlike state workers’ compensation claims that compensate injured workers’ for their injuries, the Federal Employers’ Liability Act (“FELA”) requires that a determination be made that a Railroad was negligent in causing an injury to a Railroader. The mere fact that a Railroader was injured during work does not automatically entitle him or her to recover damages from the Railroad. Railroads often argue that they are not an insurer of their employee’s safety.

Under the FELA, negligence is defined as the failure to use the same degree of care which persons of ordinary prudence would use in the circumstances of a given situation. It can be the doing of something which a reasonably prudent person would not have done or failing to do something which a reasonably prudent person would have done under the circumstances. Part of acting reasonably requires the Railroad to guard against risks and dangers of which it knew or by the exercise of due care should have known. Also, the degree of care required by the Railroad varies with the risk. The greater the chance of risk to the safety of an employee, the greater required level of care.

Some examples of a Railroad’s negligence are as follows: 1) a Railroad’s failure to properly train its employees to perform a certain type of work duty that results in a Railroader’s injury; 2) a Railroad’s failure to remove debris from its rail yard; 3) a Railroad’s failure to inspect it equipment for defects; and 4) a Railroad’s failure to have an ergonomic program to protect its employees from repetitive trauma injuries (That particular issue was addressed in an earlier blog post that can be found here).

By Matt Darby

The Federal Employers’ Liability Act (FELA)

Saturday, February 09, 2013

I am constantly referring the Federal Employers’ Liability Act (“FELA”) in my blogs. I thought it might be a good time to explain what it is and what it does.

The FELA provides a cause of action, or a method by which railroad employees engaged in interstate commerce, or their survivors can seek compensation for injury or death caused by the negligence of any employee or agent of a railroad or by defects in equipment caused by a railroad’s negligence. The FELA was initially enacted by Congress in 1906 in response to the high number of deaths and injuries suffered by railroaders. It was immediately declared unconstitutional by the U.S. Supreme Court. Not to be rebuffed, Congress passed the FELA again in 1908. That statute is the same law that covers and provides compensation to injured railroaders today.

Courts have interpreted the FELA to impose a lesser burden on a plaintiff than the common law. Common law proximate cause rules are relaxed meaning that the railroad’s negligence only need to have caused the injury in whole or part, a requirement that courts have interpreted to mean, to any degree, no matter how slight. This standard was reaffirmed in 2011 the case of CSX Transportation v. McBride. A jury question regarding this slight causation requirement may be created by entirely circumstantial evidence.

Under the FELA, a railroader’s contributory negligence is not a bar to recovery, but only results in a proportionate reduction of damages. This means that even if an injured railroader is partially at fault in causing his or her own injuries, he or she can still recover damages for the injuries suffered. In situations involving the violation of a safety statute, contributory negligence has no effect on the recovery. Also, the doctrine of assumption of risk is not a consideration in FELA cases.

Finally, under the FELA, an injured railroader can bring his or her lawsuit in either state or federal court. A suit brought in state court cannot be removed by the railroad to federal court.

Over the next several months I hope to explain and explore the FELA in greater detail.

By Matt Darby

Lower Extremity Repetitive Trauma Injuries Part 2

Tuesday, December 18, 2012

Several weeks ago, I posted a blog entry regarding Railroaders and the development of lower extremity repetitive trauma injuries. Today, I am going to explore the issue of why a Railroad might be liable for such an injury.

Improper Ballast/ Yard Maintenance

As indicated in my earlier post, one of the risk factors for the development of knee osteoarthritis is walking on uneven surfaces. Railroaders routinely walk long distances across ballast, sometimes several miles or more a day. While most Railroads have regulations that require that the ballast placed in rail yards be one inch in diameter or smaller (“walking stone”), this is often not done. Rail yards commonly have large, mainline ballast covering the walkways and other locations where Railroaders work. Anyone who routinely walks on this type of rock can attest to its instability. In addition to not providing the proper size ballast in its rail yard, Railroads frequently fail to properly maintain those areas. Failure to maintain a compacted and level walking area that is free from debris can also lead to the development of lower extremity injuries. A Railroad’s failure to use walking stone in its rail yards and properly maintain working areas can be considered its failure under the FELA to provide a reasonably safe place to work.

Lack of Ergonomics Program

Also, as indicated in my earlier post, some of the other risk factors for the development of knee osteoarthritis include repeatedly bending and stooping and working in awkward positions. Railroaders routinely bend and stoop when climbing rail cars, throwing switches and connecting air hoses. These tasks are done on a repetitive basis, sometimes hundreds of times a day. Part of providing a Railroader with reasonably safe place to work is Railroad’s obligation to have in place an ergonomics program to detect and prevent injuries caused by this repetitive work. This can be done by engaging in worksite analysis to detect the ergonomic risk factors for the development of lower extremity injuries and the subsequent modification of job tasks to reduce or eliminate those risk factors. In addition, it is necessary for a Railroad to engage in medical management so that repetitive trauma injuries can be detected. This enables to Railroad to determine the extent of a problem and also allows the Railroader to seek early medical intervention so that a potential injury can be prevented. Finally, there should be training and education on the part of the Railroad so that its workers can protect themselves from exposure to ergonomic risk factors. Despite the fact that Railroads have been aware for years that having a comprehensive ergonomics program in necessary to provide its employees with a reasonably safe place to work, they have failed to implement such programs.

Please contact your United Transportation Union Designated Legal Counsel Matt Darby at 800-248-FELA or pmdarby@bsgfdlaw.com if you have any questions.

By Matt Darby

The Development Of Lower Extremity Repetitive Trauma Injuries In Railroaders

Friday, November 16, 2012

Several months ago, I posted a blog entry regarding repetitive trauma injuries in general. Today, I am going to specifically explore the issue of lower extremity repetitive trauma injuries.

“Lower extremity” refers to the legs, knees, ankles and feet. A repetitive stress injury is a disorder that can affect bones, muscles, tendons, nerves and other anatomical features. It develops when micro traumas, or minute injuries, occur repeatedly from overuse or misappropriate use of a body part or external force applied to the body. Lower extremity injuries in Railroaders usually take the form in the development of osteoarthritis in the knees. Osteoarthritis is often referred to as wear-and-tear arthritis. This type of arthritis occurs when the protective cartilage of the ends of the bones wear down over time. The condition gets worse when the cartilage itself becomes thinner and in some cases may wear away altogether (known as Grade IV osteoarthritis). As the osteoarthritis gets worse, there is increased pain and impaired movement in the joint. Osteoarthritis in the knee is usually diagnosed with the aid of X-rays and/or MRI examinations.

There are many causes for the development of osteoarthritis in the knees. For Railroaders, the main risk factors for the development of the condition include walking on uneven surfaces, repeatedly bending and stooping and working in awkward postures. Railroaders who routinely walk long distances across ballast, climb rail cars, squat to throw switches and couple air hoses and in the past, dismounted moving equipment, are at an increased risk of developing osteoarthritis in their knees. Over time, these activities act to wear down the cartilage that is contained in the knee joint.

There is no known cure for osteoarthritis. In its early stages the condition is usually treated conservatively in the form of medication, physical therapy and cortisone injections. In some cases, the condition is treated by injecting a lubricating substance into the knee. If conservative treatment fails to alleviate the problems, arthroscopic surgery may be performed to remove pieces of cartilage and smooth the joint surfaces. Ultimately, the knee joint itself might have to be replaced.

Please contact your United Transportation Union Designated Legal Counsel Matt Darby at 800-248-FELA or pmdarby@bsgfdlaw.com if you have any questions.

By Matt Darby

Court Confirms That Denial Of Treatment Is Discrimination Under The FRSA

Monday, October 22, 2012

On October 11, 2012, the U.S. District Court for the Northern District of Illinois, in the case of Delgado v. Union Pacific Railroad Company, 2012 WL 4854588 (N.D.Ill.), confirmed that the denial of medical treatment to an injured railroader is discrimination, and therefore subject to a private cause of action, under the FRSA.

Section 20109(c)(1) indicates as follows:

(1) Prohibition. – A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

There is little dispute that under the FRSA, an injured railroader cannot be disciplined or threatened with discipline for “requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physician.” Numerous OSHA decisions have confirmed that protection. The question arose in the Delgado case whether “discrimination” concerning the provision of medical care is covered under the FRSA. The U.S District Court determined that it is.

The pertinent facts regarding the case are as follows: On October 14, 2010, Delgado injured his foot on a rusty piece of scrap metal. He immediately requested that two co-workers take him to a nearby hospital. On the way to the hospital, Delgado phoned his foreman and indicated that he had been injured and that he was going to the hospital. A short time later, and prior to arriving at the hospital, Delgado was instructed by his foreman to immediately return to the railroad’s administrative building. Delgado complied. Upon arrival at the administrative building, Delgado’s injury was assessed by a railroad official. Delgado was then directed to not go to the hospital but to the railroad’s on-site company clinic. At the clinic Delgado was examined, given medication and instructed to stay off his foot.

The Court determined that there was clear evidence that indicated that the railroad had denied, delayed, or interfered with his medical treatment. Because there was no dispute that Delgado had not been discharged or disciplined for seeking medical treatment, the question arose whether he had private cause of action against the railroad. The Court determined that he did because he had been “discriminated” against for seeking the treatment.

Section 20109(d)(1) indicates as follows regarding enforcement of the protections under the FRSA:

(1) In general. – – An employee who alleges discharge, discipline, or other discrimination in violation of subsection(a), (b) or (c) of this section, may seek relief in accordance with the provisions of this section, with any petition or other request for relief under this section to be initiated by filing a complaint with Secretary of Labor.

The Court in explaining its decision determining that the denial of medical treatment as discrimination stated as follows:

“The Court has no difficulty in construing the denial of medical treatment as discrimination against an employee who may potentially disclose a hazardous condition at the work site. Indeed, and as adverted above, denying medical treatment may often constitute a far more significant form of discrimination against an injured employee than would an after-the-fact disciplinary action. Seeking medical treatment for a workplace injury is likely, if not almost certain, to lead to the disclosure of the hazard that caused the injury and, in that light, a carrier’s efforts to “deny, delay, or interfere” with an injured employee’s pursuit of medical treatment can easily be understood to constitute a form of discrimination, and retaliation, against such an employee.”

The Court went on to indicate:

“The Court therefore concludes that Section 20109 provides a private right of enforcement to an employee, like Delgado, who alleges that a railroad carrier violated the provisions of subsection

(c )(1) by denying, delaying, or interfering with the medical or first aid treatment of an employee injured during the course of employment.”

So there you have it. It is now clear that the FRSA treats a railroad’s denial of medical treatment to an injured employee as prohibited act of discrimination that is subject to a private cause of action.

By Matt Darby

The Importance Of Reporting Unsafe Conditions

Saturday, September 15, 2012

The Railroad can be a dangerous place to work. The Federal Rail Administration reported that there were 7,288 “other incidents” in the United States rail industry in 2011. “Other incidents” are defined as “any event that caused a death, an injury, or an occupational illness to a railroad employee.” Since the first of this year, the number of “other incidents” has been 3,413.

Railroaders cope with unsafe conditions all the time. There’s moving equipment to contend with, uneven surfaces, debris, vegetation, faulty equipment and even trespassers. What should a Railroader do when encountering one of these conditions? Report It Immediately!

By reporting an unsafe condition, you are alerting the Railroad that the condition exists. Hopefully, it gets taken care of immediately and nobody gets hurt. The reality is that it probably won’t. If it doesn’t get fixed and somebody does get hurt, then there’s documentation that the Railroad was alerted of the problem. In addition to blaming the injured Railroader for his own injuries, Railroads are notorious for claiming that that they weren’t aware of the unsafe condition. For a Railroad to be legally responsible for an employee’s injury, it has to know or have reason to know that hazardous condition existed prior to the injury. As you can imagine, the Railroad always claims it didn’t know.

How do you report an unsafe condition? Immediately report it to someone at the Railroad. Report it to a supervisor, the Yardmaster, the Trainmaster, someone. This initial verbal report needs to be followed-up to make sure the Railroad has a record of it. If a written report can be filed, fill it out (CSXT uses a document called a PI-82). Other Also, contact your local chairman or someone on the Safety Committee and let them know about the condition. They will make sure the Railroad is properly notified of the condition. It is very important that the initial verbal report is documented. If it isn’t, the Railroad is going to deny that it was ever notified of the unsafe condition.

Finally, remember, the FRSA protects those who are retaliated against for reporting unsafe conditions. Information concerning that protection can be found here.

By Matt Darby

Is This Any Way To Run A Railroad? Norfolk Southern Does It Again

Friday, August 31, 2012

Once again Norfolk Southern has been found to be in violation of the whistleblower protection provisions of this FRSA. This is starting to sound like a stuck record (for those of you who remember records).

On August 28, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Norfolk Southern Railway Company to pay two Railroaders $932,070.46 in damages, including $387,813.75 in punitive damages.

Railroader No. 1 suffered an on-the-job shoulder injury that he reported to the Railroad. As usual, Norfolk Southern alleged that he had filed a false injury report and he was fired. He was subsequently reinstated by the special Board of Adjustments. OSHA ordered Norfolk Southern to pay the Railroader $581,438.00, including compensatory damages for pain and suffering, $150,000.00 in punitive damages, $55,000.00 in attorney’s fees and $26,438.11 in back wages and benefits. Importantly, OSHA ordered Norfolk Southern to reinstate the Railroader to his proper seniority level.

Railroader No. 2 also suffered an on-the-job injury that he reported to the Railroad. He, like Railroader No. 1, was charged with making a false statement regarding his injuries. He was also subsequently discharged. The news release indicates that during the OSHA investigation it was determined that the Railroader’s injuries were not only real, but they have “caused severe medical problems involving his back, neck and shoulders, which restrict his ability to sit, stand, walk and operated machinery.” OSHA ordered Norfolk Southern to reinstate the Railroader once he is medically released to return to work. Norfolk Southern was also ordered to pay damages in the amount $350,632.35, including $150,000.00 in compensatory damages and punitive damages in the amount of $150,000.00. Attorney’s fees and medical expenses were also awarded.

Dr. David Michaels, OSHA’s Assistant Secretary of Labor for Occupational Safety and Health, was quoted as saying “Firing workers for reporting an injury is not only illegal, it endangers other workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury or possible future prevention can occur” and “Railroad workers must be able to report work-related injuries without fear of retaliation. The Labor Department’s responsibility is to protect all employees, including those in the railroad industry, from retaliation for exercising these basis worker rights. Employers who break the law will be held accountable.” So far, OSHA, at least with regard to Norfolk Southern, has been true to its word.

OSHA’s press release can be found here.

A link to a news article in the Virginian-Pilot is here.

By Matt Darby

OSHA Blasts Norfolk Southern Again For Whistleblower Violation

Friday, August 17, 2012

It’s getting hard to keep track of the number of times Norfolk Southern has been found to be in violation of the whistleblower protection provisions of the FRSA but it’s happened again. On August 8, 2012, the Occupational Safety and Health Administration (OSHA) issued a news release indicating that it had ordered Norfolk Southern Railway Company to pay a Railroader more than $300,000.00 in damages, including $200,000.00 in punitive damages.

The Railroader suffered an on-the-job head injury that he reported to the Railroad. He was subsequently charged with falsifying that injury and fired. The news report indicated that “OSHA found that the railroad’s investigative hearing was severely flawed and orchestrated to intentionally support management’s decision to terminate the employee.” No real surprise there.

Cindy A. Coe, OSHA’s regional administrator in Atlanta, was quoted as saying “Railroad workers throughout this country have the right to report an injury without fear of retaliation” and “The Department of Labor will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights, and employers found in violation will be held accountable.”

OSHA’s press release can be found here.

By Matt Darby

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