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The Federal Employers' Liability Act FOREWORD The law firm of Hunegs, Stone, LeNeave, Kvas & Thornton, P.A., has been representing railroad employees, their widows and orphans, for over a half century. Almost all such cases have involved claims under the Federal Employers' Liability Act. Over the years numerous decisions by the Courts have liberalized and expanded the rights of railroad workers under the FELA and further changes are constantly occurring. In these ever-changing circumstances, and in a booklet of this size, it would not be prudent or possible to provide legal answers to specific legal questions. Therefore, our purpose here is limited to providing general information concerning the Federal Employers' Liability Act, and related federal acts, the rights of the worker as a result, and comments concerning the protection of those rights. This brief booklet can in no way cover either in a general, and certainly not in a specific way, the law relating to this subject. No one should attempt to use the general information contained herein as a source of legal advice or counsel. Only a competent attorney experienced and knowledgeable in FELA matters can advise and counsel in any specific case, as the facts in each case are necessarily different from any other case. The United States Supreme Court has said: "Injured workers or their families often fall prey to persuasive claims adjusters eager to gain a quick and cheap settlement for their railroad employers, or to lawyers either not competent to try these lawsuits against the able railroad counsel or too willing to settle a case for a quick dollar. " "Laymen cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries." For this reason, the Railroad Brotherhoods have designated Legal Counsel whom they feel are competent and experienced FELA lawyers, as well as competent and experienced trial lawyers. When you have an on-the-job injury, you should consult with one of these designated lawyers to protect your rights. The Federal Employers' Liability Act was passed by Congress to promote safety and insure that the terrible toll of injuries and deaths suffered by railroad workers did not occur without a just remedy for the injured worker or his or her survivors. It is our sincere hope that the information and guidance given here will in some small way help fulfill the commendable purposes of the FELA. Hunegs, Stone, LeNeave, Kvas & Thornton, P.A. Designated Legal Counsel for: Transportation Communications International Union and Brotherhood of Railway Carmen Division of TCU , United Transportation Union, Brotherhood of Locomotive Engineers, SEIU National Conference of Firemen & Oilers, Brotherhood of Railroad Signalmen, International Brotherhood of Electrical Workers. We also represent members of : Brotherhood of Maintenance of Way Employees, International Association of Machinists and Aerospace Workers, Sheet Metal Workers' International Association and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,Forgers and Helpers, I. THE BASIC FEDERAL EMPLOYERS' LIABILITY ACT The Federal Employers' Liability Act (FELA) was enacted by Congress in 1908 to give railroad employees the right, under Federal Law, to recover damages from their employers for injuries occurring at work. Since that time, Congress by amendments to the Act, and the courts by judicial interpretation, have liberalized the law, giving the worker substantially broader rights and greater protection. The Act provides that the railroad shall be liable to an employee for any injury or death resulting in whole or in part from the negligence of the company, its agents or employees or by reason of any defects or insufficiency due to its negligence in its premises, cars, equipment, etc. The injured worker may bring an action, triable by a jury, in either the State or Federal Courts. The Courts have interpreted the Act to mean that negligence of the company which played any part, no matter how small in causing injury or damages, is sufficient for recovery. Three factors must be present for an injured railroad worker to collect damages against his employer under the FELA. First, the employee must be injured while in the course and scope of his employment. This does not mean he must be on railroad property, or actually working, at the time that he is injured. Generally, under the law the employee is protected while he is at any place off or on railroad property where he has been sent by his employer. There are exceptions. If an employee is working on the docks, wharves or ports of an employer on navigable waters, it may be that he would come under the "Longshoremen's and Harbor Workers' Act," rather than the FELA. Another exception that may be noted is where an employee is injured while working for a railroad outside of the continental limits of the United States, such as in Canada or Mexico. Such employment is not covered by the Federal Employers' Liability Act. There are also some other exceptions that apply. Injuries resulting from horseplay or fighting among workers may be excluded from coverage of the Act. Generally, an employee is covered from the time he or she steps on to railroad property until signing out and for a reasonable period of time thereafter. The second requirement is that the railroad must be engaged in interstate commerce. Today almost all of the duties of all employees of interstate railroads are in the furtherance of interstate commerce and, as a result, this issue is rarely raised. The third requirement is that negligence on the part of the railroad played some part in causing the employee's injury. 1. NEGLIGENCE There must be proof of negligence on the part of the railroad which caused or contributed to the employee's injury. Quite simply, this means that the railroad must exercise reasonable care for the safety of its employees. The railroad must provide its employees with a reasonably safe place to work and a failure to do so is negligence. That duty includes the furnishing of reasonably safe tools and equipment; the selection of proper methods to do the work, the furnishing of sufficient help, and the adoption and enforcement of proper procedures. The railroad may also be negligent if it fails to adopt and enforce safe rules and practices and negligence may result from allowing unsafe practices and customs to exist. The fact that such practices and customs are standard in the industry is no defense. If a safer method, custom or practice would reduce or eliminate the risk of injury, it would be negligence to continue an unsafe practice merely because things had been done that way for years. The injured worker must also use due care for his or her own safety and the failure to do so may result in the finding that the employee was "contributorily" negligent. If the injured employee is found contributorily negligent, then the damages awarded must be reduced by the jury in accordance with the percentage of the employee's negligence or fault. Thus, for example, if the jury were to find the railroad's negligence at 90% and the employee's at 10%, then the amount of the damage verdict for the employee would be reduced by 10%. 2. SAFETY APPLIANCE ACT AND BOILER INSPECTION ACT Additional protection is given to the injured worker by the Safety Appliance Act and Boiler Inspection Act. The Boiler Inspection Act requires that the railroad keep its locomotives and tenders in proper condition and safe to operate in the service to which they are put. A violation of the Boiler Inspection Act imposes absolute liability on the railroad. If an employee is injured because of a violation of this Act, the employee does not have to prove negligence on the part of the railroad in order to hold the railroad liable. The Safety Appliance Act relates to railroad cars and to their safety devices. If any of the appliances such as couplers, power brakes, grab irons, draw bars, etc. are defective, and this causes an accident which injures an employee, the employee likewise would not have to prove negligence in order to recover from the railroad. However, if the locomotive or cars are taken completely out of service for repairs, these Acts may not apply and negligence of the railroad would have to be proven. 3. DAMAGES Money damages are calculated to fully and adequately compensate the injured employee, or in the case of death, the survivors, for the loss suffered. In the case of injury the factors to be considered are: (a) the nature and extent of the injuries; (b) past and future pain, suffering, embarrassment and loss of enjoyment of life; (c) past and future loss of earnings; (d) past and future medical and hospital expense. Consideration must be given to the permanency of the disability and what affect it has or may have upon the employee's ability to work thereafter. The injured worker is entitled to full compensation for all of the items of damages listed to the time of trial and all such damages which may reasonably be expected in the future and particularly during the worker's work expectancy. In case of serious injury, an accurate and informed appraisal of all past and potential losses and damages cannot be made without the aid of a competent and experienced FELA attorney skilled in negotiation and knowledgeable in assessing medical information and the relationship between medical disability and earning capacity. It can readily be appreciated then, that for the most part, an injured employee would not be able to achieve a fair settlement without the aid of such a skilled attorney. A competent and caring attorney is desirous of seeing that the injured employee obtains the best medical and rehabilitative care available so that, if possible, the employee can resume his or her place in the work force as a functioning and capable individual. Most injured workers are able to return to their former work. In these circumstances, if a re-injury or aggravation occurs after returning to work, the employee may then have a new or additional claim. Therefore, even though the first injury claim may have been settled, or have resulted in a jury verdict, the employee may have rights against the railroad for additional injury or aggravation of the first injury as a consequence of the negligence of the railroad. 4. STATUTE OF LIMITATIONS The Federal Employers' Liability Act requires that the injured employee bring a lawsuit within three years from the time of the accident, or any claim is barred by the Statute of Limitations. This doesn't mean that an injured employee should wait three years before he employs legal counsel. Often the injured employee mistakenly does not seek the aid of an attorney and cooperates freely with the claim agents for the railroad in supplying statements and medical information only to find that a fair settlement is not forthcoming. The delay occasioned thereby may make it extremely difficult for an attorney to conduct an adequate investigation and obtain a just and fair award or settlement. Therefore, it is recommended that as soon as practicable the injured employee seek advise from a competent FELA attorney. By doing so, pitfalls that would make ultimate settlement more difficult may be avoided. There are exceptions to the three year statute, one of which involves exposure to an occasional condition which causes something in the nature of asbestosis, silicosis or dermatitis. There the three year statute does not start to run until the employee first discovers the injury and realizes that it has occurred through negligence on the part of the employer in exposing the employee to certain toxic substances or chemicals. Similar arguments have been made with regard to hearing loss caused by exposure to repeated high decibel sounds in the workplace. II. WHAT TO DO FOLLOWING AN INJURY 1. ACCIDENT REPORT All accidents should be reported as soon as possible. Often when injury occurs, the worker, thinking that the injury is of a minor nature and hoping that the pain will go away, does nothing about it. The accident goes unreported and the injury untreated. Ordinarily no serious harm is done by some delay, but at times even the slightest delay may well jeopardize the employee's rights. When an injury occurs the first and immediate necessity is to obtain medical attention. At such time thereafter as the worker feels able, an oral and written report can be made concerning the accident. In filling out accident reports, care must be taken to be as accurate as possible. The forms are designed so that if answered without sufficient attention to detail it will appear that there was no fault or negligence on the part of the railroad. When these forms are filled out, the employee should make certain that whatever negligence of the railroad he thinks is involved is mentioned or appears somewhere on the form. It may be well for the injured employee to have the local or general chairman of the union present when such forms are filled out and signed. In any event, the injured worker should never allow the railroad claim agent or supervisor by promise or pressure, to write anything in the report that is not accurate or true and correct. As soon as practicable the injured worker should contact a FELA attorney for advice, even though the worker may not have decided at that time to hire an attorney. Most FELA attorneys are more than willing to advise injured railroad workers of their rights without charge and without being retained. Our firm's practice, for example, is to counsel and advise employees without charge where we can be of aid and assistance whether or not we are ultimately hired to represent the employees. Even minor injuries today, may result in several thousands of dollars loss to a railroad worker. Most families or individuals cannot afford to absorb such losses. 2. THE CLAIM AGENT When a worker is injured, a claim agent, representing the railroad will attempt to obtain a written statement from the injured employee concerning the accident and injury involved. Claim agents are experienced and thoroughly familiar with FELA. Their basic job is to save the railroad money and keep settlements for injuries as low as possible. The claim agent, in obtaining statements from workers, may often use language that the worker would not use. Statements may be phrased in such a way that the company does not appear to be at fault; the fault for the accident may appear to be that of the employee only. The injuries may be described in such a statement so that serious omissions complicate the matter at a later date. However, there are some union contracts which require an injured employee to provide the railroad with a written and signed statement. In the absence of such a contract, we advise all employees not to give or sign a statement for a claim agent. If there is doubt concerning your rights in this regard, the employee should contact the local or general chairman of his or her craft for advice. Under no circumstances should the statement be given without first consulting the local or general chairman or the craft or without seeking advice from a competent FELA lawyer. As mentioned previously, the claim agent knows the rules and may take advantage of the injured worker in taking a statement in such a way that the injured employee's rights are seriously jeopardized. Claim agents often are congenial and pleasant appearing individuals who inspire confidence in the people with whom they are dealing. The agents may plead with the injured employee for
an opportunity to settle the case without an attorney becoming involved. The unfortunate aspect of the worker going along with the claim agent in that regard is that it gives the claim agent an opportunity to make a
detailed investigation of the case at his own pace and leisure; to obtain all of the medical information and to some extent control all aspects of the case, including early medical treatment to the potential
detriment of the injured employee. The training and experience of the claim agent provides him with insight into what the future may hold for the injured man in the way of disability and loss of capacity to work and
all of the other factors that must be considered in arriving at a fair settlement.
In these circumstances, how can the untrained, inexperienced railroad worker determine whether or not the settlement offered by the claim agent is fair? How can the injured employee know whether or not the type of disability or injury suffered is progressive or has late consequences that may entirely change the picture in six
Has that injured employee even been seen and evaluated by a medical expert who is not under the control of or being paid by the railroad? 3. MEDICAL TREATMENT When an injury occurs, the worker is sent by the railroad to company doctors. Often the railroad will take a position that it is not responsible for any injury unless the injured worker goes to a company doctor or a company hospital. This is not true. Where there is a hospital association and the association rules require the injured worker to obtain medical treatment there, it is true that the association may refuse to pay for care obtained elsewhere. In most cases, the unions have negotiated medical and hospital coverage with an insurance company or HMO as a fringe benefit. Under most policies, the injured worker can choose from among several designated doctors or hospitals and the company will cover such treatment to the extent of the policy. Generally, if a worker needs medical attention, it is best that he or she see their own doctor. If the worker does not have a family doctor, it is preferable that he or she see a doctor who is not associated with and paid by the railroad. The worker can certainly obtain recommendations from the local or general chairman or other union members who have suffered injuries on the job. Advice can also be obtained concerning medical care from a FELA attorney. 4. RETAINING A LAWYER At times injured employees feel that the company might retaliate, bring pressure to bear, or even fire the employee should the worker employ a lawyer to bring a claim against the company. Claim agents may provide the basis for, or encourage, this feeling on the part of the employee. Any such suggestion is false and should be ignored in its entirety. The injured employee has an absolute right to pursue an action against the railroad for injuries sustained under the Federal Employers' Liability Act and to obtain the services of an attorney in so doing. Even where the injury is such that the employee is able to return to work, it is advisable that the services of a competent FELA attorney be obtained. In some circumstances it would be possible for the railroad to return the employee to work while the settlement was pending only to terminate the employee after settlement. If a railroad employee sustains any significant injury, it is foolhardy not to be represented by a FELA attorney. It is important in any settlement that the injured employee know and appreciate the effect of the number of compensated months of service he has, which is shown on the U.S. Railroad Retirement Board's BA-6 card, which applies to pension rights. A certain number of months of past and future employment may be necessary to protect the employee's pension rights and counsel may see to it that the company allocates and credits the employee adequately so that pension rights are protected. Obviously, it is always better to return an injured employee to work so that he or she may function as a useful member of society. However, if the employee is in such physical condition that to go back to work would cause further disability and suffering, then it is even more essential that the injured worker obtain the services of a competent FELA attorney. Justice requires a proper award commensurate with the injury and a recovery sufficient for the injured employee to live out his or her expectancy in dignity and comfort. 5. WHAT IF I'M A WITNESS? Many accidents involving serious injury or death are unwitnessed because the railroad worker is working alone at the time. That situation is unfortunate. More unfortunate is the situation where co-employees have witnessed an accident or have knowledge of facts which could be critical in an injured worker's case and refuse to become involved. Such co-employees may feel that to step forward and be counted (as a witness) would threaten their relationship with the company or result in some retaliatory acts from management. Such a fear is without foundation. The FELA specifically prohibits threat or intimidation of any person voluntarily furnishing information or testimony. Furthermore, any person who discharges or otherwise attempts to discipline any employee for voluntarily furnishing information to an injured party can be fined up to $1,000.00 or imprisoned for up to one year, or both! If you witness an accident resulting in injury to a fellow worker, or have information which would be helpful in his or her case, let the injured person know so that his attorney can obtain the information from you. The next time you could be the one who needs help! You may also be contacted by company representatives. If you've already given a statement, secure a copy of it for the company rather than having another statement taken. In this way you avoid differences in statements due to the use of different language or phraseology. 6. RELEASES When an injured employee settles a claim with the railroad he is required to sign a release before receiving the payment of money. A release is a final statement between the parties. The injured worker in accepting the settlement and signing a release gives up any and all claims he may have against the railroad arising from that injury. Generally once a release is signed, it is final and no further claim can be made even though the injury becomes much more serious than anticipated.
Although there are some exceptions, it is extremely important that the injured employee understand that by signing a release he may be forever foreclosing any right he may have to recover for injuries from the accident involved. Inadequate settlements made too soon after an
It is very seldom that releases can be set aside. Where the injured worker has been defrauded by misrepresentations of a claim agent or by the doctors employed by the railroad, it may be possible to set a release aside. However, to avoid the injustice that occurs from improvident settlements made too soon, every injured employee should consult a FELA attorney before entering into a settlement and signing a release. The attorney can then evaluate whether or not the medical situation is such that a settlement at that time should or should not be made and whether the amount offered by the company adequately compensates the injured worker for the injuries sustained. Finally, again, it should be repeated that in order to determine what sum of money will fairly and adequately compensate an injured worker for the damage suffered as a result of a railroad accident, a comprehensive knowledge is required of the law that is applicable, of the medical aspects of the injuries and disability, and of all the factors that go into arriving at a probable award if the case were to be tried to a jury. Only a competent and experienced FELA attorney is capable of advising an injured worker as to whether or not a settlement offer is fair, adequate and just. No settlement for any substantial injury should be accepted without that advice. Hunegs, Stone, LeNeave, Kvas & Thornton, P.A. |
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