Gaithersburg: 301-670-7030
Baltimore: 410-769-5400
Frederick: 301-668-2100
Contact Us For Legal Help

Railroad Injury Blog

How the Safety Appliance Act Enhances Your FELA Claim - Part 1

Wednesday, April 17, 2019

When a railroader gets injured on the job, the claim is always governed by the Federal Employers' Liability Act (FELA). But some FELA injury cases are enhanced by the Safety Appliance Act, a federal law first enacted in 1893. Typical FELA cases require the injured railroader to prove some negligence on the part of the railroad in causing the injury. Cases are "enhanced" by the Safety Appliance Act because, when there is a violation of the Safety Appliance Act, the railroader does not need to prove negligence on the part of the railroad. The violation of the Safety Appliance Act by itself, proves the railroader’s case. This concept is often referred to as "negligence per se" or "strict liability."

The Safety Appliance Act requires that railcars have certain safety devices installed and in proper working order. Namely, grab irons, sill steps, running boards, handholds, and ladders must be securely mounted. There can be no slippery substances on locomotive walkways, including crossover walkways. Couplers must couple and uncouple automatically, without any need for railroaders to go between cars to perform coupling or uncoupling.

The braking system must be in good working order, including any related pipes, hoses, and reservoirs. The train’s brakes must permit the engineer to perform braking without the use of handbrakes. The handbrakes themselves must also function properly. Drawbars must be properly installed and functioning correctly. These are some of the most common requirements that are violated, but there are a number of other important safety devices that must be installed and working correctly under the Federal Railroad Administration’s regulations contained at 49 CFR Part 231.

If the cause of your injury is that any of these safety devices were not installed, or not in proper working order, you have a very strong case against the railroad. Your case will be "enhanced" by the Safety Appliance Act. It is important to have an attorney who understands railroad regulations, and the laws that may help enhance your FELA case.

The other important factor to consider in determining if the Safety Appliance Act enhances your case, is whether the railcar you were working on was "in use" at the time of your injury. We'll learn more about that in Part 2.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 3 of 3

Wednesday, April 03, 2019

Part 3

As we discussed in Part 1, it seemed obvious that the FRSA protected railroad employees who follow their doctor’s orders for non-work related injuries. But as we learned in Part 2, some courts don’t care what a statute says – in the Bala/PATH decision the Third Circuit admitted that subsection (c)(2) of the FRSA has no work-related requirement, but still decided that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

The good thing about the Third Circuit’s decision – is that it only applies in the Third Circuit, that is, the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. So until the United States Supreme Court decides otherwise (and they might!) employees throughout the rest of the country are still covered by the FRSA for their non-work related injuries.

That conclusion was given further strength by the United States Department of Labor, and its Administrative Review Board (ARB), which also hears and decides FRSA cases. In the case Williams v. Grand Truck Western Railroad, the ARB decided: “Third Circuit added a work-related limitation to the statute. We disagree with the Third Circuit's conclusion…” The ARB further decided, “we decline to apply the holding in PATH to cases not arising in the Third Circuit.”

So the takeaway here is that everywhere in the country, except Delaware, New Jersey, Pennsylvania, and the Virgin Islands, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the FRSA protects you for following your doctor’s orders.

No matter where you live, but especially if you live in the Third Circuit, you need experienced railroad attorneys to help you with any railroad-related claim. If you have been disciplined by the railroad for following your doctor’s order, contact us, no matter what state you live in!

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty; Part 2 of 3

Wednesday, March 27, 2019

Part 2

As we discussed in Part 1, it should be obvious that the FRSA should and does protect railroad employees who follow their doctor’s orders for non-work related injuries, including time off work. That’s the safe thing to do for the employees and the public, and subsection (c)(2) of the FRSA seems clear on its face.

Well along comes the United States Court of Appeals for the Third Circuit. This is the federal appeals court that has jurisdiction over the states of Delaware, New Jersey, Pennsylvania, and the Virgin Islands. In 2015, in a case sometimes referred to as Bala, and othertimes referred to as PATH, the Third Circuit took away the right of some injured railroad workers to follow their doctors’ treatment plans.

The Third Circuit held that injuries must be work-related in order to be covered by subsection (c)(2) of the FRSA. You can read subsection (c)(2) for yourself, it doesn’t say anything about a requirement than an injury be work related: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…” But here is what the court said: “we think that subsection (b)(1)(A) must be read as having at least some work-related limitation, even though no such limitation appears on the face of the statute. And if a work-related limitation must be applied to subsection (b)(1)(A), it would be consistent to also apply a work-related limitation to subsection (c)(2).” They even admitted the statute does not have a work-related requirement! The decision of the Third Circuit was that only following your doctor’s orders for work-related injuries or conditions is covered by the FRSA.

Well then, everybody’s screwed, and no one who is ill or injured outside of work is protected – right? Wrong. We’ll see what went right in Part 3.

Call or email me with your questions:
H. David Leibensperger
hdavid@bsgfdlaw.com

Can the Railroad Retaliate Against Me for Following my Doctors Orders When My Medical Problem Happened Off Duty

Friday, March 22, 2019

Part 1

It seems pretty obvious, if you have an injury or illness outside of work, and your doctor prescribes certain treatment, the law should protect you for following your doctor’s orders. A common part of a doctor’s medical treatment plan for someone with a serious injury, is to take them out of work. As anyone who works for a railroad knows, railroads can have harsh and punitive attendance policies. If you miss too much work, no matter the reason, the railroad may be looking to discipline you, or even terminate you.

But attendance-related discipline for people who are seriously ill or injured outside of work is wrong. Employees should be able to follow a doctor’s order not to work And again, the reason seems pretty obvious, because the safety of railroad employees, rail passengers, and those living and working near railroad tracks and yards, should be more important than forcing an ill or injured employee to come to work, just so he or she can avoid attendance-related discipline. Without legal protection, it’s clear what will happen – injured and ill employees will report to work to avoid attendance discipline, and endanger themselves and the public.

It would also seem pretty obvious that a law like the Federal Rail Safety Act (FRSA) should protect employees with non-work related medical conditions. After all, the stated purpose of the FRSA is, “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” And subsection (c)(2) of the FRSA seems to do just that: “A railroad carrier…may not discipline…an employee…for following orders or a treatment plan of a treating physician…”

Well then, the law does what it’s supposed to do and everyone’s covered for their non-work related medical conditions – right? Wrong. We’ll see what went awry in Part 2.

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 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.

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.

Recent Posts


Tags


Archive

RSS

What Our Clients Say

Known for our unwavering commitment to clients, for our integrity, and for delivering the best results, our clients continue to refer their friends, families and neighbors to us for their legal needs.


"One year ago today I made the call to your office. The best decision I could make. I wanted to share with you how impressed I am with your staff and your professionalism."

Heather P.


"Craig did a great job representing me! He's the lawyer I have trusted with my legal needs because he's professional, knowledgeable, and keeps me informed about my case."

Jaclyn K.


"I would like to express my gratitude for your efforts and dedication for my disability case. It's has been quite a long and upsetting process but you have handled my case in an extremely competent and responsible manner."

Leo H.


"I have recommended Mr. Feldman to several of my friends and colleagues and have heard nothing but excellent reviews. He is the best lawyer I have ever used."

Martin


"I received the check today. I could not believe it until I saw the check. Thank you so much. You have improved my family's quality of life tenfold."

Mike F.


"These guys go above and beyond! They always have your best interest in mind."

Mike W.


"You have been kind throughout this process and I appreciate your professionalism as well as your gentle concern. Thanks for helping us and all the others who need your legal expertise. We are grateful."

Nancy F.


"Thanks to Mr. Shultz's aggressive and professional work ethic style I was able to receive the medical services and compensation pertaining to my case."

Navdeep C.


"I can honestly say this firm is simply TOP NOTCH! They not only have handled countless cases for my members that require their services, they also have gone well beyond their "scope" to help some of my folks in other areas of need. "

Rick H.


"The attention and professional care the staff has taken toward my needs has always been excellent. I have no complaints nor worries that my issues discussed are not addressed."

Tim T.


"I just got off the phone with Craig and let him know how thankful we are to you, him and Ken for all your efforts – you are all really terrific to work with!"

Val K.


Locations Throughout Maryland, Virginia & Washington DC

Gaithersburg Office

481 N. Frederick Avenue, Suite 300
Gaithersburg, MD 20877
301-670-7030 / 800-248-3352
Fax: 301-670-9492

Lutherville Office

1301 York Road, Suite 600
Lutherville, MD 21093
410-769-5400 / 800-248-3352
Fax: 410-769-9200

Frederick Office

30 W. Patrick Street, Suite 105
Frederick, MD 21701
301-668-2100 / 800-827-2667
Fax: 301-668-2000

Subscribe To Our Newsletter


TOP