According to the Federal Railroad Administration, in 1995, almost 11,000 on duty employees were injured and 34 were killed while working on America's railroads. While most workers hope that they are never added to these statistics, the reality is that it can happen to anyone.
If it happens to you, do you know your rights under the F.E.L.A. and are you prepared for what will come next? Ask yourself the following questions:
1. What will the railroad do for me?
No matter how congenial your relationship has been with the railroad company, this much is certain: the minute an injury occurs on the railroad, your interests and the interests of the railroad company become absolutely opposed to each other.
Typically the first action taken by the railroad is to get a claim agent in front of the injured worker or decedent's family. While the claim agent may appear friendly and personable, their sole purpose is to save the railroad money. If an injury is a very minor one, employees probably do not have a lot to lose by handling it with the local claim agent. However, if an injury is serious, or the full extent of an injury is unknown, employees may be risking a great deal.
BEWARE: Employees who fail to take action to protect themselves at the time of an injury may be putting themselves in the position of the lamb who accepted the wolf's invitation to dinner.
2. Should I sign or make a statement?
A STATEMENT IS EVIDENCE THAT WILL BE USED AGAINST YOU. Injured employees are NOT required by union contract or other means to give a statement to the claim agent.
Except for the Accident Report, do not make any other statements, either orally or in writing, as to how the accident occurred, until you have been fully advised by your attorney. Most union agreements with the railroads specifically provide that an employee is entitled to representation even in an "investigation." Even if no such union provision exists, the Federal Employers' Liability Act gives an injured employee the right to have representation in any and all aspects of his claim. The amount of many claims has been defeated or sharply reduced because injured workers sign statements, fill out forms or make reports which they do not carefully read or fully understand.
3. Am I qualified to fill out a company injury report?
REMEMBER - ALWAYS READ THE REPORT FIRST AND KEEP A COPY OF ANYTHING GIVEN TO A CLAIM AGENT. Employees frequently sign reports without reading or understanding the trick wording buried in the some of the questions. Such questions often include "weasel-words" that are used to prove an accident was not the fault of the railroad or any of its employees. They also include hidden phrases which attempt to downgrade a worker's injury.
These reports include many questions about fault, blame, and defects in equipment. The following are examples of questions found in these reports:
a. Did equipment and/or tools cause or contribute to the cause of the accident?
b. Did working conditions cause or contribute to the cause of the accident?
c. Did other persons cause or contribute to the cause of the accident?
d. Was anything wrong with the equipment or work area which led to your accident?
e. Was the accident caused by the conduct of any person other than yourself?
f. Could you, by more care on your part, have prevented your injury?
g. What defects were involved? None ( ) Machinery ( ) Tools ( ) Structures ( ) Equipment ( ) Other Defects.
When a personal injury report is completed, employees may not be aware of specific defects that caused or contributed to an injury. Such defects, unsafe conditions or actions may very well be revealed only through an attorney's investigation. Consequently, employees should not answer "No" to questions if they don't really know the answer. In doing so, the railroad will contend that, since there was nothing wrong with tools, machines, equipment or working conditions, and no one else did anything wrong, it is not liable for damages.
When in doubt about defects, unsafe working conditions, or the possibility that someone else acted improperly, it is perfectly acceptable to answer "presently unknown."If a question is incorrectly answered "No" and an issue later develops that some defect did cause or contribute to an accident, the employee may have a great deal of difficulty explaining their initial answer and the fact that the answer has "changed." Answering these questions incorrectly can seriously affect an employee's chances of a fair recovery.
It is recommended that employees consult with their union representative or legal counsel before they fill out the company personal injury report.
4. Will I face disciplinary action?
Injured workers should keep in mind that they are entitled to receive their just and full compensation under the provisions of the Federal Employers' Liability Act. Always consult with your union or union-approved legal counsel when the railroad threatens you with disciplinary action after you have suffered an injury at work.
5. Will I lose my job?
Injured workers are entitled, if possible, to continue on their job and not be forced into retirement. In some instances, the railroads try to get rid of disabled workers by pressuring them into taking inadequate disability pensions. The companies thus avoid their own legal responsibility and unload their obligations onto the Railroad Retirement Fund. Disabled workers, as a result, often fail to receive decent support during the remainder of their lives.
6. Will the railroad bring safety rule violation charges against me?
It has become common practice for railroad companies to bring safety rule violations on employees when they are injured. This is intended to do nothing more than harass and intimidate employees. DO NOT LET THESE TACTICS INTIMIDATE YOU.
Under the F.E.L.A., disciplinary actions and allegations of rule violations cannot be used as a defense.
7. Am I qualified to prove railroad negligence caused or contributed to my accident and injuries?
The railroad is not going to pay a fair amount unless an injured employee can prove the company was negligent. The minute an employee is injured or killed, highly trained people will investigate the facts, take photographs and look to the law to show a situation favorable to the railroad company.
8. Do I understand the statute of limitations and what the railroad can do during this time period?
Claim agents often tell employees not to rush into anything because they have a 3 year time period. While there is a 1-to-3 year limit depending on the defendant involved, the claim agent is more than likely buying time to build a defense. During this time, you should have legal professionals working for you. Facts must be properly documented before equipment is moved or destroyed or witnesses forget what they saw or heard. Any delay in helping yourself may very well be giving the railroad an advantage that cannot be overcome.
9. Does the claim agent decide how much compensation I may receive?
NO. Except for very small claims, this decision is made at corporate headquarters by people who view employees as a cost item affecting company profits.
10. Am I qualified to value my claim, or know whether the offer I receive from the claim agent is fair?
Railroad workers have often been led to believe that they are only entitled to "compensation" when they are injured on the job. Most railroad claim department agents usually inform workers that "compensation" is a percentage of the time or wages lost. This is not true and may prove costly to the worker who believes it.
When an employee is injured or killed and the railroad is at fault in causing the accident, he or his survivors are entitled to recover more than the time or wages lost.
There are several elements involved in assessing damages. They include lost wages, pain & suffering, future wage loss, medical expenses and permanency of the injury. The simplest calculation is lost wages. However, unless an employee has a thorough understanding of the severity of the injury as it will affect future earning capacity and lifestyle, it is best to contact designated legal counsel to calculate the losses.
11. Am I an experienced negotiator?
The railroad is! In most instances, the claim agent will ask an injured employee for a settlement figure before making an offer. This is a negotiating game. With very few exceptions, the agent's offer will be considerably less than the railroad will actually pay.
12. Am I qualified to assess my own injuries?
Injuries are real and unless an employee has attended medical school, chances are the severity of an injury is difficult to determine. Employees should never feel embarrassed or intimidated into feeling that accidents don't happen or the resulting injuries are "nothing." According to the Federal Railroad Administration, the top 10 injuries in 1995, as reported by railroad companies were:
|Type of Injury|
|4.||Ankle Sprains /Strains||541|
|7.||Arm & Hand Sprains/Strains||325|
|10.||Arm & Hand Cuts||223|
|Source: Federal Railroad Administration|
Never self-diagnose your injury. There is an old Chinese proverb that says, "Sometimes, little kittens grow up to be ferocious tigers." Many so called minor injuries become major problems down the road. At first, the doctor may treat you for a pulled muscle and you think that you'll be back to work in a couple of weeks. Later it is discovered that you have a blown disc and are facing major surgery and may not be able to return to your regular employment.
13. Am I able to determine when to settle my F.E.L.A. claim?
In a rush to put some money in their pocket, employees sometimes settle claims before their injuries are fully healed or before the full extent of their injuries has been determined. Without a proper medical evaluation and consultation with designated counsel, this could prove to be the biggest mistake an injured employee can make.
Remember, once an injury claim is settled with the railroad, it is completed and can't be reopened. At the time of settlement the employee signs a broad release which releases the company from any and all claims the employee has for all known injuries. Once the release is signed, the only way it can be reversed is in the case of fraud by the company or where there is a mutual mistake of fact by both parties.
14. Am I being fair to myself and my family by letting the railroad investigate my accident while I do nothing to protect my interests?
If you aren't sure about any of these questions, CONSULT YOUR UNION REPRESENTATIVE OR UNION DESIGNATED LEGAL COUNSEL IMMEDIATELY.