YOUR LIFELINE TO RECOVERY!

Under the Federal Employer’s Liability Act (FELA), railroad workers and their families have a right of action to sue in a court of law to recover money damages against their employer, the railroad, for injuries sustained on the job. Railroad employees and their families have the right to recover money damages for wage loss, medical expenses and treatments, human pain and suffering, and for partial and/or permanent disability.

Ted D. Morgan, P.C. has been successful helping many injured railroad workers and their families collect money damages for on-the-job injuries and permanent disability. If you are a railroad worker who has been seriously injured or disabled as a result of an unsafe condition at the workplace, you are entitled to money damages, and we can help. Contact us toll free at 800.980.3352.

We hope this summary adds a bit of safety to your workplace while at the same time furthering your education about your rights as a railroad worker.

Quick Tip: A valid FELA claim must involve some “unsafe condition” at the workplace.

Generally, the claim must contain three essential elements (the “legal-eze”):

  • railroad employee must be injured on the job;
  • railroad was at-fault, e.g., failed to provide a safe place to work; or furnished defective equipment, or furnished a defective locomotive;
  • the unsafe condition caused an injury to the employee.

Railroad Negligence and unsafe conditions

  • The Railroad Employer owes railroad employees a legal duty to provide a reasonably safe place to work. Every FELA claim is built upon a breach of this duty. In some instances, federal regulations provide specific ways the railroad must meet this duty. For example, vegetation must be controlled alongside the track so it does not interfere with trackside duties. Whether you are injured boarding your train, performing trackside duties, or using defective equipment, the bottom line is that you must show the railroad was negligent or failed to comply with a statute or regulation related to worker safety. Think, “unsafe condition.”

Here are some examples of unsafe conditions and theories of recovery against the Railroad:

  • Were the tools and equipment you were provided in good working order? Good condition?
  • Were you or co-workers properly trained to do the job?
  • Was there sufficient lighting in the yard or other workplace?
  • If injured throwing a switch, was there debris or other materials making the switch too hard to throw?
  • Was the ground littered with trash or vegetation obstructing your vision or ability to avoid the accident?
  • Was there oil, grease or other “foreign substance” which caused you to fall?
  • Were there enough “hands” to do the job and avoid injury?
  • Is the area where the injury occurred properly inspected by the railroad? Properly maintained?
  • Failure to provide proper supervision or training for the job being performed;
  • Defective, broken and malfunctioning hand brakes, couplers, and hard-to-throw switches;
  • Failure to maintain safe walkways (e.g. trash, debris and other obstructions);
  • Failure to provide safe transportation in company-provided vans to/from a dead-head drop point and the employee lodging (e.g., an unsafe driver allowed to haul railroad workers to the hotel);
  • Failure to provide safe lodging and accommodations;
  • Failure to control the growth of vegetation adjacent to the roadbed.

The Safety Appliance Act; The Locomotive Inspection Act

The Federal Employer’s Liability Act (FELA) is a federal law which applies to every common carrier by railroad and protects its employees from unsafe working conditions. In the interest of promoting worker safety, however, Congress has passed other laws which regulate the railroad. If the railroad violates these laws, the railroad can be held liable under the FELA for injuries sustained by its workers as a result of the violation.

The Safety Appliance Act requires that railroad cars are equipped with certain protections for safety. Here are a few examples:

  • The braking system of a train must be free of defects, including air hoses, air reservoirs and connecting pipes, and other parts of the system. The engineer should be able to control the speed of the train using the train’s air brakes. (E.g., extreme rough movement of the train has caused injuries attributable to a faulty braking system).
  • Hand brakes, or manual brakes, must be in good working condition and operate efficiently.
  • Ladders, grab irons and footboards on the locomotive and cars must be in good working condition.
  • Car couplers must couple automatically upon impact and without employees entering the space between the cars.

The Boiler Inspection Act (a.k.a. Locomotive Inspection Act) applies specifically to the locomotive. It can be summarized generally to provide the following:

  • It requires that all parts and appurtenances to the locomotive be in proper working condition and safe for the workers using them.
  • It prohibits the presence of oil, grease, sand or any other “foreign object” on the locomotive which poses risk of injury to the workers using them. Here, think of oil on the running boards, defective seats, etc.

The Personal Injury Report

Quick Tip: Immediately report your accident & injury, be precise, and do not hesitate to tell the railroad what was wrong with working conditions and/or equipment which caused your incident.

Perhaps the most important decision you will make is whether to report your injury. This is your chance to tell YOUR story, so take your best shot.

There are many good reasons to report your accident.

  • Unsafe Conditions. Use the PI report to take a position and point out unsafe conditions. Absent these unsafe conditions, could your accident have been avoided?
  • Your memory. Now is the time to record the exact date, time, place, job and other specifics (e.g. faulty switch, locomotive defect). Do it while the details are fresh on your mind, right after it happens, not months and years later after memory fades.
  • The FRA wants to know. Your railroad-employer has a federal duty to keep track of reportable accidents (whether involving injury or not) and to report those accidents to the Federal Railroad Administration (FRA), the industry’s “watchdog” for unsafe working conditions. For this reason alone, you owe it to yourself and fellow co-workers to document any unsafe working condition. See below, FRA Guide for Preparing Accident/Incident Reports.
  • Railroad Investigation. Typically, once the employee reports the accident and injury, the railroad investigates the accident. Likewise, if the employee fails to report the accident and injury, there is no railroad investigation. As odd as this may sound, there are times where the railroad’s own investigation will help your case.
  • FELA does not require it (but the railroad does). I have spoken to experienced railroad workers who believed the failure to report the accident to the railroad barred the worker from ever filing a FELA claim related to that accident. That is simply not true. But, from a practical standpoint, we all know that the railroad considers the failure to report the accident a serious violation of the company rules – another good reason to fill out the report.

What caused your accident?

Sometimes, the cause of the accident is obvious, e.g., an improperly lined switch, a malfunctioning (defective) derail, insufficient lighting, a broken grab iron, an oily running board on an engine, defective tools, or trackside weeds and vegetation caused you to fall or blocked your vision. Be sure to describe the working conditions that caused your accident.

Beware of Railroad Questions on the Form.

When you complete the Railroad’s PI report, be attentive to details and do not shy away from explaining what the Railroad did wrong. For example, one of the major railroads operating in the southeastern United States offers the following questions on the face of its PI report:

  • WAS ANYONE AT FAULT?
  • DID DEFECTIVE TOOL OR EQUIPMENT CAUSE ACCIDENT?
  • DID EMPLOYEE HAVE A SAFE PLACE IN WHICH TO WORK?
  • WAS THE WORKPLACE ADEQUATELY LIGHTED?
  • WAS THERE ANY FAILURE TO GIVE USUAL OR NECESSARY SIGNALS, WARNINGS OR PROTECTION?

The railroad has a statutory duty to provide a safe workplace free of defective equipment, free of defective walkways, clear of debris which may cause workers to fall and sustain injury. Oftentimes, injuries occurring at dawn, dusk or at night involve issues of adequate lighting.

Seek Medical Attention & Consult Your Doctor

Quick Tip: One of the most frequently used defenses to any personal injury claim is the failure of the injured person to seek medical treatment. Although there are times when you just cannot see a doctor immediately following your accident, it is always best to seek medical attention at your first opportunity.

Going back to the essential elements of a FELA claim (above), the railroad is liable for money damages related to injuries caused by the accident. Ergo, the medical testimony must support your claim of injury.

Here are a few more things to consider about medical treatment.

  • Your Doctor– Not the Railroad Doctor. You have the absolute right to see the doctor of your choice. Your trainmaster or other supervisor cannot force you to see the “railroad’s doctor.” There is no law which says your trainmaster or other railroad official has the right to accompany you and/or be present when you see the doctor.
  • Medical History. The first doctor you see after this accident needs to know what happened, how you were hurt, and what parts of your body were injured and where you hurt. This information will serve as the bedrock of the doctor’s medical testimony that your injury was caused in the specific accident that (hopefully) you reported to the railroad. Be forewarned, if a doctor cannot relate your injury to the accident, your case may be over.
  • Mitigation of Damages (“take care of yourself”). The law requires you to minimize your injury (even though it was not your fault). If you fail to seek medical attention, and your injury worsens significantly as a result, you may not be entitled to recover for the injury. This theory also holds true if the doctor instructs or prescribes that you receive physical therapy or take certain medications, and you fail to follow his advice. This area of the law can be quite troublesome for the individual who delays treatment because “I just don’t like doctors.”

The Bottom Line

The FELA provides a well-deserved source of compensation for the railroad worker suffering an injury on the job caused by the railroad’s failure to provide a safe place to work. If you are involved in such an incident, remember:

  • Determine the unsafe condition that caused your accident;
  • Report the unsafe condition to the railroad;
  • Seek medical attention promptly and from your doctor; and,
  • Consult competent FELA counsel.

Hopefully, this summary will provide practical advice for the railroad worker who is injured on the job. Just keep in mind that sound legal advice and analysis of a particular case comes from a one-on-one conversation with your attorney, not this summary.

Ted D. Morgan, P.C. stands ready to evaluate your FELA claim and injury.

Call us toll free 800.980.3352 for a free consultation.

The following is an excerpt and should not be relied upon without sound legal advice.

FRA Guide for Preparing Accident/Incident Reports

Chapter 6 – Page 1 F 6180.55a

CHAPTER 6 – FORM FRA F 6180.55a

Railroad Injury and Illness Summary (Continuation Sheet)

A. REQUIREMENT

Each event or exposure arising from the operation of a railroad shall be reported on Form FRA F 6180.55a if the event or exposure is a discernable cause of one or more of the following outcomes, and this outcome is a new case or a significant aggravation of a pre-existing injury or illness:

(1) Death to any person;

(2) Injury to any person that results in medical treatment;

(3) Injury to a railroad employee that results in:

(i) A day away from work;

(ii) Restricted work activity or job transfer; or

(iii) Loss of consciousness;

(4) Occupational illness of a railroad employee that results in any of the following:

(i) A day away from work;

(ii) Restricted work activity or job transfer;

(iii) Loss of consciousness; or

(iv) Medical treatment;

(5) A significant injury to or significant illness of a railroad employee diagnosed by a physician or other licensed health care professional even if the injury or illness does not result in death, a day away from work, restricted work activity or job transfer, medical treatment, or loss of consciousness;

(6) An illness or injury that meets the application of any of the following specific case

criteria:

(i) A needlestick or sharps injury to a railroad employee;

(ii) Medical removal of a railroad employee;

(iii) Occupational hearing loss of a railroad employee;

(iv) Occupational tuberculosis of a railroad employee; or

(v) A musculoskeletal disorder of a railroad employee if this disorder is

independently reportable under one or more of the general reporting criteria.

Event or exposure arising from the operation of a railroad includes–

(1) with respect to a person who is on property owned, leased, or maintained by the

railroad, an activity of the railroad that is related to the performance of its rail

transportation business or an exposure related to the activity;

(2) with respect to an employee of the railroad (whether on or off property owned, leased

or maintained by the railroad), an activity of the railroad that is related to the performance

of its rail transportation business or an exposure related to the activity; and

(3) with respect to a person who is not an employee of the railroad and not on property

owned, leased, or maintained by the railroad–an event or exposure directly resulting from

one or more of the following railroad operations:

(i) a train accident, a train incident, or a highway-rail crossing accident or incident

involving the railroad; or

(ii) a release of a hazardous material from a railcar in the possession of the

railroad or of another dangerous commodity that is related to the performance of

the railroad’s rail transportation business.

In the context of casualty reporting, the terms “event” and “exposure” include events of a specific nature, e.g., being struck by a train, and those conditions associated with work place activities, or exposures, that occur over a period of time, e.g., occupational illnesses. See § 225.19(d)

A railroad need not report the following:

  1. Casualties at highway-rail crossing sites that do not involve the presence or operation of on-track rail equipment, or the presence of railroad employees engaged in the operation of a railroad;
  2. Casualties in or about living quarters that do not arise from the operation of a railroad (Note: camp cars, and permanent facilities on the railroad’s premises are a part of the work environment and casualties occurring in these are considered to have arisen from the operation of a railroad. Normally, injuries occurring in these facilities will be reported as occurring to an employee not on duty (Class B), but at other times the employee is more properly classified as being on duty (Class A). In these workplaces, if the employee is on-duty or engaged in a work activity at the time of injury or illness, then the employee is classified as on duty. In addition, an employee in living quarters on railroad property who is harmed as a result of a serious workplace accident such as a chemical release, fire, explosion, derailment, collision, or building collapse while off-duty is nevertheless to be classified as on duty. All other injuries and illnesses occurring during off-duty hours while in living quarters are to be classified as injuries or illnesses to employees not on duty.)
  3. Suicides, as determined by a coroner or other public authority; or
  4. Attempted suicides.

See § 225.15.

B. EMPLOYEE ON DUTY INJURY/ILLNESS REPORTING

BASIC REQUIREMENT.

A report must be made of each railroad employee fatality, injury and illness that:

  1. Is work-related;
  2. Is a new case, or a significant aggravation of a preexisting condition; and
  3. Meets one or more of the general reporting criteria or the application to specific cases.

Injuries and Illnesses: An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning. (Note: Injuries and illnesses are reportable only if they are new, work-related cases that meet one or more of the reporting criteria.)

Note: The distinction between injury and illness is no longer a factor for determining

which cases are reportable.

Q1. The old rule required the reporting of all occupational illnesses, regardless of

severity; all that was necessary was that there be a diagnosis/recognition that the

condition existed and that an exposure in the work environment was a contributing

factor. For example, a work-related skin rash was reported even if it didn’t result in

medical treatment. Does the rule still capture these minor illness cases?

A1. No. Under the new rule, injuries and illnesses are reported using the same criteria. As a result, some minor illness cases are no longer reportable. For example, a case of

work-related skin rash is now reported only if it results in days away from work,

restricted work, transfer to another job, or medical treatment beyond first aid.

Q2. What if the injury was caused by the employee’s own negligence, or was a result of events beyond the railroad’s control, e.g., an employee was assaulted by a

trespasser, or two employees were engaged in horseplay; would this make a

difference in terms of whether the injury or illness must be reported?

A2. No. Responsibility or fault is not a consideration when deciding whether or not to report. FRA notes that many circumstances that lead to a reportable work-related injury or illness are “beyond the employer’s control,” at least as that phrase is commonly interpreted. Nevertheless, because such an injury or illness was caused, contributed to, or significantly aggravated by an event or exposure at work, it must be reported (assuming that it meets one or more of the reporting criteria and does not qualify for an exemption to the geographic presumption). This approach is consistent with the no-fault reporting system FRA has adopted, which includes work-related injuries and illnesses, regardless of the level of employer control involved.

 

The following do not affect reportability if there is evidence an employee was harmed while in the work environment:

  1. The event was not witnessed.
  2. The employee did not immediately notify a supervisor.
  3. The employee did not require medical treatment at the time of the condition.
  4. The condition was the result of an employee’s error.
  5. The condition was caused by outside factors, e.g., an assault on an employee, insect or animal bites, struck by lightning, act of nature.
  6. The condition did not meet all the necessary conditions for reporting at the time of the initial event, activity, or exposure.
  7. The condition was the culmination of a series of activities.

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