Railroad Worker
Injury
What
are My Rights Under FELA?
What
Should I do If I get Injured At Work?
Should
I see A Lawyer?
How Do
I find an Experienced Lawyer?
Can The
Railroad Fire Me if I Hire A Lawyer?
Will
I have to go To Court?
Where
Will My Case Be Tried?
What
should I do if There is an investigation?
What
Are my Rights concerning Drug Testing?
Do I
have to use a Company Referred Doctor?
How
Long do I have to File a Claim?
How
much can I recover?
Summary
What
Are My Rights Under FELA?
Under the FELA laws, any employer
who is injured while at work is entitled to collect
fair compensation and to return to work if medically
qualified. Often, railroads try to get rid of an injured
employee by pressuring them into taking disability retirement
or partial compensation. Under FELA law, you cannot
be forced into retirement if you are physically able
to work.Railroads hire claims agents to negotiate with
injured employees and their families. The agent’s
goal is to protect the railroad management’s interest
and to save it money.
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What Should I Do If I
Get Injured At Work?
Accidents at work should be
reported to a supervisor immediately. Failing to report
an accident could result in disciplinary action by the
railroad or the railroad’s denial that the accident
occurred at work.
Report the accident facts to
your supervisor, particularly information about defective
equipment and/or unsafe conditions that contribute to
the injury. Give names of co-workers who were present
when the accident occurred. Don’t volunteer information
not asked for and don’t claim responsibility for
the accident. Never let your supervisor answer questions
for you.
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Should I See A Lawyer?
When you are injured, your interests
and the railroad’s interests are opposed to each
other. Your goal is to collect what you need and what
the railroad owes you, and the railroad management’s
goal is to pay you as little as it has to.
Railroads have lawyers and claims
agents on their payroll to protect their interests.
The minute you are injured, their team starts to work
on your case. While they are building their case against
you, you should be trying to protect your interests
and those of your family.
You may represent yourself to
negotiate a settlement with the agent. You will recover
a greater settlement, however, with a lawyer who understands
the fine details of FELA law and who can represent your
interests from a position of strength and knowledge.
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How Do I Find An Experienced
Lawyer?
In choosing a lawyer, it is important
that the lawyer knows FELA law and has experience in
trying FELA cases. FELA cases are very difficult. Most
experienced lawyers will take your case on a contingency
basis and the fee will be a percentage of the amount
of money recovered. If you need assistance in finding
a lawyer, your local union chairman can advise you who
to contact.
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Can The Railroad Fire
Me If I Hire a Lawyer?
A railroad cannot fire you for hiring
a lawyer to represent you. Understanding your rights
and having good representation is the best way to reach
a fair and just settlement for your injury claim. The
railroad may try to convince you that you do not need
an attorney, but you have the legal right to hire one.
The Federal Employer’s
Liability Act states:
“Whoever, by threat, intimidation,
order, rule, contract, regulation or devise whatsoever,
shall attempt to prevent any person from furnishing…such
information to a person in interest, or whoever discharges
or otherwise disciplines or attempts to discipline any
employee for furnishing such information to a person
in interest shall, upon conviction thereof, be punished
by a fine of not more than $1,000.00 or imprisonment,
for not more than one year, or both such fine and imprisonment,
for each offense.”
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Will I Have To Go To
Court?
It is a proven fact that the
largest claims are won when a case is prepared for court.
You should keep good records, obtain good counsel and
be ready to go to court to prove the cause of your injury.
Even if you were at fault to some extent (contributory
negligence), it will not defeat your claim. Negligence
of the injured worker can only be used to reduce the
settlement.
In certain cases brought under
the Boiler Inspection Act (defects in engines) or the
Safety Appliance Act (defect in cars) contributory negligence
cannot be used against the injured worker.
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Where Will My Case Be
Tried?
Under FELA, your case can be
heard in the state court or the U.S. federal court,
whichever suits your needs the best. The right of an
injured worker to choose the trial location and court
is an important right. It gives you the right to have
your case tired in a city where the awards are usually
higher than in a small town. It also gives injured minority
workers a better chance of receiving a fair hearing.
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What Should I Do If There
Is An Investigation?
Before the investigation, consult
with you lawyer to make sure that you don’t say
anything that could be used against you. The railroad’s
purpose in conducting an investigation is to get you
to say something which will lessen the railroad’s
responsibility for the injury suffered. The railroad
must prove this innocence, however, and you don’t
have to testify against yourself.
If you are under a doctor’s
care or on medication, notify your union representative
and have the investigation postponed until you are physically
and mentally alert.
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What Are My Rights Concerning
Drug Testing?
You have the right to do several
things:
(1) Ask why and on
what basis you must be tested. Is it according to the
railroad’s Rule G; or the Federal Railroad Administration
regulations and if so, under what sections? If based
on FRA rules, are you a “covered employee”
as defined by FRA?
(2) Ask what the
consequences are if you refuse to take the test or if
you test positive.
(3) Ask what test
is being administered. Request the name and address
of the lab and ask for pamphlets describing the lab
and its methods.
(4) Ask how the specimen
will be handled, what levels will be used to prove that
it’s positive, and what records will be kept.
Obtain the records.
(5) Request that
a union representative or at least a co-worker be present
throughout the testing.
(6) Make sure the
specimen is properly sealed and labeled and request
to sign the label.
(7) Obtain a portion
of the specimen to run an independent test yourself.
Insist that your sample undergo a confirming test if
it tests positive.
(8) If you are certain
that you are “clean,” insist that a blood
sample be taken and tested along with the urine sample.
(9) Ask when you
will be notified of your test results, and what your
employment status will be pending the outcome.
(10) As soon as possible after the
test, have an independent teat run by a family doctor
or private lab.
(11) Keep a
record of all prescription or over-the-counter drugs
taken during the week before your test, and all foods
ingested within 24 hours before the testing.
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Do I Have To Use A Company
Referred Doctor?
You do not have to use the
company doctor except for periodic physicals or when
you are released by your doctor to return to work. You
have a right to see the doctor of your choice and one
who specializes in treating the type of injury you have.
When you visit your doctor, describe your job and explain
how the accident happened. If you supervisor takes you
for medical attention, do not let him go into the examining
room with you or talk to the doctor about condition.
You have the right to privacy.
Never sign an authorization
form for the railroad to obtain medical records from
your doctor. Keep a record of all medical bills, medications
and special items which you purchase because of the
accident. You have a right to reimbursement for these
items in your claim.
If your doctor advises you to
stay off work, don’t accept even light duty work
from the railroad. You run the risk of being injured
further. If you take light duty work, the railroad does
not have to report your accident to the Federal Railroad
Administration (FRA). If a report is made, the FRA will
investigate and order the railroad to repair unsafe
conditions. They may also impose a fine on the railroad
if the unsafe conditions are not repaired within a reasonable
time.
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How Long Do I Have To
File A Claim?
Under FELA, the statute of
limitations is three years from the date when you were
injured. It is not a good idea, however, to wait until
the time is almost up to file suit. The only way that
an attorney can prove liability in your case is through
investigation. This means that he will need to photograph
the area, talk to witnesses and co-workers, inspect
and photograph defective equipment or tools, and determine
what could have prevented the accident.
The longer you wait, the harder
it will be to obtain these things. It will also take
longer for your case to go to court. You will be losing
money, what the money could buy for your needs and what
the money would earn in interest.
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How Much Can I Recover?
The amount of money that you can
collect for your injury is determined by the seriousness
of the injury, the losses you have suffered and the
negligence on the part of the railroad or any of its
employees. Taken into consideration are: your inability
to function as you had before the accident; disfigurement
or scarring from the accident which changed the appearance
of any part of your body; pain and suffering you are
experiencing now and which you will most likely experience
in the future; expenses for medical treatments now and
in the future; lost wages; and if you are permanently
disabled, wages that you will lose until the time that
you would have normally retired.
If a worker is killed, the surviving
family members are entitled to collect an award for
each of the following elements of damage proved by the
evidence:
(1) Pain and suffering
experienced or witnessed before the worker’s death.
(2) Expenses for
medical care and treatment.
(3) Money losses
now and in the future as a result of the death. This
includes compensation for loss of care, attention, training,
and guidance which would have been given to minor children.
(4) Compensation
for any treatment benefits survivors would have received
from the Railroad Retirement Board.
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Summary
As an employee of the nation’s
railroads, you have more protection than any other working
person in the United States under The Federal Employer’s
Liability Act. Unless you know and understand your rights,
however, they might as well not exist. You have only
one chance to settle with the railroad. You could be
medically disqualified the day after your settlement.
Get to know and understand your rights under FELA law.
You have too much at stake not to be knowledgeable.
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