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Railroad Injuries

Information on Railroad Law

Federal Employers' 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 (F.E.L.A.). 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 F.E.L.A. 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 F.E.L.A. 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 F.E.L.A. is such a complicated statue, it is essential that an injured employee contact an attorney familiar with the F.E.L.A. 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.

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 F.E.L.A., was passed by Congress in 1908 when the railroads were the primary driving force behind our world renowned industrial leadership. Congress passed the F.E.L.A. 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 F.E.L.A. 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 F.E.L.A. 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 F.E.L.A. lawsuits will accept a case under a contingent 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.

What types of injuries can I sue for under the F.E.L.A.?
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 F.E.L.A. 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 F.E.L.A. 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 personal injury, wrongful discharge is to consult an experienced attorney shortly after your injury. The attorney you choose should have expertise in the field of the, 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. 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 F.E.L.A. 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.

If You Are Injured on the Job:

  1. Report the injury to your supervisor as soon as possible no matter how minor the injury appears to be. Also, tell fellow employees about the facts of your injury. They will potentially be your best witnesses.
  2. Fill out a personal injury report listing the causes of the accident. Remember, the law that protects you, the Federal Employers' Liability Act (F.E.L.A.) requires a finding of negligence on the part of your railroad employer, so you should state what acts or omissions caused or contributed to your accident. Conditions such as improper tools or equipment, unsafe walkways, inadequate training, inadequate manpower, improper or unenforced safety rules, and negligent assignment to duties beyond your physical capabilities have all been found by the courts to establish the necessary negligence against the railroad.
  3. Call an attorney experienced in handling railroad injury cases, like Brescoll & Brescoll, P.C.
  4. If you are required to give a recorded or written statement on the happening of the accident, do not let the claims agent or your supervisor put words in your mouth that you were the negligent party that caused the accident. Remember that any fault on your part will reduce or eliminate your claim.
  5. Seek medical treatment for your injuries. If you don't treat with a physician in hope that the injuries will heal by themselves, you will not have documented your medical problem. You should follow your doctor's advice and receive the testing, therapy and medical care that your physician recommends.
  6. Follow your doctor's orders restricting your physical activities. This will help you to heal and to not aggravate your physical condition. It will also assure that if the railroad is conducting surveillance on you, that you will not be doing anything inconsistent with your doctor's recommendation. It is normal to try to do as much as you can physically, but if you go beyond your doctor's restrictions, it may harm your claim.
  7. If your doctor permanently disables you from returning to your railroad employment due to your on-the-job injuries, the law entitles you to make a claim for the loss of earnings and fringe benefits that you would have earned at the railroad. The F.E.L.A. however, requires that you attempt to find employment within your physical capabilities in order to make a claim for such lost wages and fringe benefits. In other words, you cannot simply sit at home and do nothing. We recommend that once you have been released to work with some restrictions that you start looking for work. Keep a notebook with the names and addresses of the places where you have sought a new job to prove that you have attempted to find work.

Information on Cases Handled

Grand Trunk Electrician Settles for $540,000 Due to Crankcase Explosion
We recently represented a 52-year-old electrician who sustained a mild head injury as a consequence of a locomotive engine crankcase explosion. While performing a FRA-mandated periodic inspection of a locomotive in Flint, our client attempted to start the diesel engine by means of the side starting station. After the engine had been running for a couple of minutes, a fireball, accompanied by a thunderous boom, shot out of the uncovered oil strainer box.

Shortly after the incident, and before the injured employee retained Brescoll & Brescoll, P.C., Grand Trunk destroyed or discarded several pieces of critical evidence, including the damaged diesel engine, lube oil testing records, inspection records and so on, making it as difficult as possible for us to meet our burden of proof as to why the explosion occurred. In addition, Grand Trunk attempted to blame our client for causing the explosion, contending that he failed to follow the proper procedures for starting a cold engine.

However, during litigation, we deposed more than 20 employees, including several managers in charge of locomotive maintenance and repair, and as a result, we were able to prove that the explosion occurred because the diesel engine lube oil had become contaminated with fuel oil. Although our client's injury never required that he be hospitalized, Brescoll & Brescoll, P.C. was able to settle his case against Grand Trunk for $540,000.

Grand Trunk Brakeman Settles for $438,000 for Aggravating Back Condition While Aligning Drawbar
In this FELA action, our client, a brakeman, obtained a substantial settlement despite the fact that the railroad's doctor attributed his back condition to a preexisting condition and that he had been terminated from a job that Grand Trunk offered him to reduce his wage loss claim. The brakeman was injured when he was attempting to straighten a drawbar that was not centered on a boxcar. Under the then-existing safety rule, employees were required to back into the drawbar, lifting and pushing it from the side. When doing this, the drawbar suddenly shot out from behind him, causing him to fall backward onto the ties and rail below, aggravating his preexisting back condition.

Our client claimed the safety rule requiring him to back into the drawbar to align it was unsafe. After undergoing back surgery, his doctor disabled him from returning to his brakeman's job. Grand Trunk then offered him a management position paying $48,000 annually. Unfortunately, several months later, he was terminated from his new job because he missed too much work because of his back pain. Despite the railroad's claim of his failure to mitigate his damages by keeping the job, Brescoll & Brescoll, P.C. obtained a settlement for our client in the amount of $438,000.

Jury Awards Grand Trunk Engineer Nearly $1,000,000 for Back Injury
Our client, a 50-year-old Grand Trunk locomotive engineer, injured his lower back while attempting to align a snow-clogged switch. A CT-scan conducted shortly after the incident revealed advanced age-related degenerative changes in his lumbar spine, as well as the misalignment of two vertebrae. He had undergone two back surgeries about a decade earlier for non-work related injuries, but had not sought medical treatment for back pain in the five years preceding the incident. Although our client's doctors believed that his back injury was serious, they felt that neither surgery nor hospitalization was necessary. When Grand Trunk offered only $200,000 in settlement, we and our client decided to try the case in federal court. At trial we argued that Grand Trunk was negligent in failing to timely remove the snow from the switch which was one of more than 300 in the yard. We also argued that Grand Trunk negligently failed to train our client, an engineer, in the proper techniques of throwing a switch. Grand Trunk denied that it was negligent because it had been snowing for two days, it was still snowing at the time of the incident, and its maintenance crews were working 12-hour shifts in order to keep up with the snowfall. The railroad also contended that our client had been properly trained, and that he himself was negligent for failing to clear the switch of snow and in exerting excessive force while attempting to operate the switch after it had jammed. After two weeks of trial, Brescoll & Brescoll, P.C. was able to obtain a jury verdict in the amount of $990,000 for our client.