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Railroad Injuries/FELA

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.

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.

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.

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 chairperson can advise you who to contact.

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 or imprisonment, for not more than one year, or both such fine and imprisonment, for each offense."

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.

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.

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 that 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.

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 test 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.

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 your 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 that 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.

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.

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.

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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