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• Federal Employers' Liablity Act
• The Americans with Disablities Act
• The Family and Medical Leave Act
• Common Questions About Your Rights
• Do You Need An Attorney if You're Injured on the Railroad?
• If You Are Injured on the Job
• Michigan Federal Jury Awards Conrail Crew Dispatcher $420,000 for Violation of Americans with Disabilities Act.
• Grand Trunk Electrician Settles for $540,000 Due to Crankcase Explosion
• Grand Trunk Brakeman Settles for $438,000 for Aggravating Back Condition While Aligning Drawbar
• Quadriplegic Girl Receives Multi-Million Dollar Settlement
• Jury Awards Grand Trunk Engineer Nearly $1,000,000 for Back Injury
• Motorcycle Accident Results in $500,000 Settlement

Federal Employee Liability Act:

Railroad employees are not covered by workers’ compensation for work related injuries. If a railroad employee is injured at work his rights to recovery stem from a federal act known as the Federal Employers’ Liability Act (FELA). This act predates most state workers’ compensation laws. The United States Supreme Court has noted that the Act was “designed to put on the railroad industry some of the costs for the legs, eyes, arms, and lives which it consumed in its operations.”
 
However, unlike workers’ compensation claims, the FELA generally requires that the employee prove that the railroad was in some manner at fault in causing or contributing to his/her injuries. Specifically, the Act provides that the railroad will be liable in damages to its employees suffering an injury while employed by the carrier when an injury is caused in whole or in part by the negligence of any of its officers, agents, or employees, or by reasons of any defects or insufficiency, due to its negligence in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.   The courts have interpreted the FELA as requiring a railroad to provide its employee with a “safe place to work.” Injured employees may recover damages when the railroad has assigned the employee to duties beyond his/her physical capacity, failed to enact or enforce proper safety rules, failed to maintain its equipment, failed to provide adequate manpower and failed to use proper ballast, etc.
 
The law also provides that, generally, the amount of money an employee is entitled to recover for an injury will be reduced by the percentage of fault that is attributed to the employee which had led to his/her injuries. Therefore, even in a situation where the railroad is clearly at fault, the railroad will generally do every­thing in its power to lay as much blame on the employee for an injury as it can in order to reduce the ultimate payout it will have to make on an injury.

Finally, there are certain situations in which the railroad will be held absolutely responsible for injuries that occur, even in the absence of its negligence. These cases are known as Safety Appliance Act and Boiler Inspection Act cases. If an employee is injured as a result of violations of these Acts, even the employee’s own negligence cannot be used against him/her.

Because the FELA is such a complicated statue, it is essential that an injured employee contact an attorney familiar with the FELA as soon as possible after sustaining an injury so that they are able to deal with the railroad’s attorneys and agents on a level playing’field. Please consider Brescoll & Brescoll, P.C. when making, a decision to consult with an attorney.

The Americans with Disablities Act
 

The Americans with Disabilities Act (ADA) was enacted into law in 1990. It protects employees at a place of employment with 15 or more employees. The ADA prohibits employment discrimination against a qualified individual with a disability concerning all terms, conditions and privileges of employment. The ADA requires covered employers to make reasonable accommodations for a qualified individual with a disability unless doing so would impose an undue hardship on that employer. Compensatory damages allowable under the ADA include economic loss, emotional pain and suffering, mental anguish, attorney fees and costs of litigation. Punitive damages may also be awarded if the plaintiff demonstrates that the employer engaged in discrimination with malice or with reckless indifference to the plaintiff's rights.

The Family and Medical Leave Act:
 
The Family and Medical Leave Act (FMLA) was enacted by Congress and signed into law in 1993. It provides an eligible employee with up to 12 weeks of unpaid leave during a 12-month period because of a serious health condition, the birth or adoption of a child, or the need to care for a spouse, parent or child who has a serious health condition.

An eligible employee must have worked for the employer for at least one year, worked at least 1,250 hours during the year immediately preceding the start of the leave and worked at a work site where the employer employs at least 50 people within a 75 mile radius.

The law allows for 12 weeks of unpaid FMLA leave per year, the right to be returned after a qualified leave to the same position or an alternative position with equivalent pay, benefits and working conditions without loss of accrued seniority and the right to have health benefits maintained. If the employer violates the FMLA, an action may be brought within two years of the last event constituting a violation, for wages, salary, and employment benefits lost, or actual monetary loss, and liquidated damages equal to the employees' wages, salary and benefits lost. Finally, any judgment awarded to a plaintiff may include reasonable attorney fees, expert witness fees and costs.

Common Questions About Your Rights:
 
 If I'm injured while working on the railroad, am I covered under Workers' Comp.?

No.  Although state Worker's Compensation laws cover most employee injuries that occur while the employee is performing his or her job, railroad employees are covered under a special federal law called the Federal Employer's Liability Act.  This law, commonly referred to as FELA, was passed by Congress in 1908 when the railroads were the primary driving force behind our world renowned industrial leadership.  Congress passed the FELA in order to make railroading safer and to provide a measure of recovery for injured railroaders and their families. 

Unlike Workers' Comp., there is no limit on the amount that an injured railroader can recover under the FELA.  It is up to the jury and/or judge to determine the appropriate amount to award the railroader for the injury sustained.

Can I sue for damages under the FELA if I'm partially at fault?

Yes.  The amount of monetary damages that the railroader will be awarded may be reduced by an amount equal to the railroader's fault.  However, if the railroad is at fault, no matter how slightly, the injured employee can still recover.

Why should I hire an attorney when I might be able to settle my case with railroad on my own?

A settlement of claim is final.  To put it simply, you should seek counsel from an attorney to take care of the financial aspects of your injuries for the same reason that you would seek the care of a physician to manage the physical aspects of your injuries. 

Both require the knowledge and expertise of a professional.  Moreover, the railroad has an incentive to settle your injury claim for the smallest amount it can.  A lawyer, on the other hand, has an incentive to settle your injury claim for the highest amount possible because most lawyers who handle FELA lawsuits will accept a case under a contigent fee agreement.  Under such an agreement, the lawyer receives a percentage of the amount recovered.  If the lawyer fails to recover anything the lawyer receives nothing for his efforts.  Thus, a lawyer's best interest is in getting the highest settlement or award possible for you.  The amount of the attorney fee is almost always more than compensated for by the higher recovery you will likely receive if you use an experienced attorney.

In addition to higher recoveries for your injuries, lawyers can also provide you with a wealth of information, including how to best protect your legal rights.

Negligent Assignment

Injured railroad workers are often required to return to strenuous employment before fully recovering from an on-duty or off-duty injury without appropriate work restrictions or adequate medical evaluations. 

What types of injuries can I sue for under the FELA?

There are a wide variety of injuries for which the courts have allowed recovery.  The railroad is a dangerous place to work.  Railroad workers are faced with a constant threat of exposure to occupational disease and injuries.  Numerous occupational injuries result from the use of unsafe equipment, improper tools, failure to train employees, failure to supply sufficient manpower, etc...

In addition to occupational injuries, railroad workers are often exposed to dangerous environmental conditions such as diesel exhaust fumes, asbestos dust, and toxic chemicals which can cause a number of adverse effects on one's health, including fatal heart and respiratory diseases.  Furthermore, railroad workers may be exposed to dangerously high levels of noise which often lead to serious hearing loss. 

Examples of some of the more common injuries covered by the FELA include neck, back, shoulder and knee injuries from aligning drawbars, walking on uneven ballast, operating defective switches, setting defective handbrakes and slipping and falling on accumulations of snow and ice, oil, grease or other slippery substances. 

This list is not exclusive.  There are an infinite number of injuries that may be covered under the FELA.  The important thing to remember is to check with your personal doctor (not the company doctor) to see if any injury or illness you might have is connected in any way, no matter how slight, with your working on the railroad.  When in doubt, check it out.

Choosing The Right Attorney

The first and most important step you can take to protect your rights as an injured railroad worker is consult an experienced attorney shortly after your injury.  The attorney you choose should have expertise in the field of the FELA and railroad operations, as well as an understanding of how to effectively deal with the railroad.  The attorney should have experience in handling cases similar to yours in order to truly appreciate the value of your claim. 

Moreover, you should beware of out-of-state attorneys who claim to be the best suited to handle your case.  Obviously, an out-of-state attorney will not be as readily available to discuss your case with you and will not be as familiar with the Michigan rail system or local conditions as a Michigan based attorney.  Furthermore, clients with out-of-state attorneys may be responsible for the costs of having their attorneys fly or drive in to meet with them.  Lastly, an out-of-state attorney is less likely to be as familiar with the statutes, laws and people involved in Michigan's judicial system as a Michigan-base attorney.  The lack of such familiarity may significantly affect the outcome of your case.

Remember, the best way to assure that your case is handled properly and that you receive the largest recovery for your injuries is to contact an experienced, knowledgeable attorney.  Contacting an attorney to discuss your potential claim is your right protected under the FELA and the railroad cannot fire you or intimidate you in any way for exercising that right.

Do You Need An Attorney if You're Injured on the Railroad?
 
With the recent increase in railroad mergers, railroad companies are playing hard-ball when their employees suffer on-the-job injuries. Railroad claims agents and supervisors will attempt to "interview" injured employees immediately after an accident to get a statement that absolves the company of responsibility. The railroad may also attempt to settle your injury claim and have you sign a release of liability from all claims. It is important for you, as an injured employee, to seek the best legal representation possible in order to preserve any potential claims that you have against the railroad. If you were injured on the job, Brescoll & Brescoll, P.C.will fight for your rights and get you the compensation you deserve. Before you speak to a claims agent or agree to sign anything, without the advice of an attorney, you should be aware of a few facts:

1.Claim agents are not your friend. They are only looking out for the railroad's best interest and are evaluated by how cheaply they can settle your claim.

2. Release Agreements are for the benefit of the railroad. The contractual language of the standard release agreement requires you to "release and forever discharge the railroad from all claims of every kind or nature whatsoever." So, be aware that by signing a release agreement, you may be giving up all of your potential claims against the railroad, including time claims, repetitive injury claims, discrimination claims, grievances, etc., and not just the injury for which you made a claim.

3. An injury case is not a simple matter. An attorney experienced in handling railroad injury cases will obtain a much greater settlement for you than if you attempt to settle your case on your own.