According to the Occupational Safety and Health Administration (OSHA), there are about 13 on-job deaths and hundreds of injuries every day. Most of these injuries and deaths are related to railroad work. At The Workers Compensation Attorney Group, Long Beach, we understand the risk railroad workers face every day and the consequences if they are injured. Our lawyers have handled different types of railroad accidents throughout Long Beach. This has provided us with knowledge and experience to handle even the most complex cases under the Federal Employers Liability Act (FELA).
What is the Federal Employers Liability Act (FELA)?
According to a report released by the Bureau of Labor Statistics, the fatality rate of railroad workers is double the rate of the typical American employee. The fatality rate is much higher for switch, signal, and brake operators. This is because railroad employees are subjected to strenuous activities, mental exhaustion, and long working hours.
Congress passed the Federal Employers Liability Act (FELA) in 1908 that changed how injuries suffered by railroad employers were treated in court as well as improved workplace safety by offering robust legal solutions to victims. Congress believed that if the railroad companies were forced to compensate injured workers significant awards, these companies would put in place necessary measures to reduce employees' injuries by improving workplace safety.
Although FELA has been amended over time, it still offers high-class compensation to injured employees.
How FELA Affects an Average Railroad Employee
All railroad employees are affected by FELA. This is because the under FELA, the government gives railroads a financial incentive to create a safe working environment in rail yards, on and around trains, and other support centers.
If the railroads fail to offer safe working environments to their workers, injury victims can be compensated under FELA. Typically, the need to avoid expensive lawsuits prompts railroads to ensure their workers are safe.
FELA also affects workers directly when they suffer injuries while on-job. Different from workers' comp statutes, FELA has no monetary limits on recovery. Therefore, compensation could be appropriate if you suffer a severe or permanent injury while at work.
Also, FELA doesn't hold railroads accountable for employees' injuries. You have to prove that your company's negligence caused your injuries. It is worth noting that this is different from workers' comp that is a no-fault approach system. Nevertheless, this rule works in favor of employees. Your company will be responsible even if their negligence played the slightest part in triggering your injury.
It is also crucial to note that you don't need to spend a lot of your time around and on train or rail yards to bring a lawsuit under FELA. Even support workers qualify to file a claim provided that the injuries occurred while at work.
What You Must Establish to Receive Compensation under FELA
For you to win a claim under FELA, you must prove the following elements:
That Federal Employer's Liability Act applies,
The railroad company was negligent
The negligence led to your injury
When Does Federal Employers Liability Act Apply?
FELA only applies to claims filed by workers of a company that engages in interstate business for injuries that occurred while working.
The interstate business is insignificant since most railroads engage in interstate business in one way or the other. But it exempts small commuter railways operations which are local.
The injury that occurred at workplace requirement has a broad meaning. For instance, if you spend 20 years working on huge ballast and you wake up one day with back pain. Then your doctor informs you that working on the ballast for a long period has gradually damaged your spine and back and you are likely to undergo surgery or could suffer pain permanently, this counts as an on-job injury even if you first experienced pain after waking up. This is because the injury is as a result of your normal work responsibility.
When is Your Employer is Negligent?
Negligence can be defined as the failure to offer a safe workplace, and it goes beyond being attributed to the management. For instance, if a crane operator strikes their colleague with a bang, the crane operator's negligence could be attributed to the employer.
Here are a few examples of mistakes that constitute negligence:
Failing to offer employees with safety training
Failure to offer enough safety equipment
Failing to supervise employees
Requiring employees to work for long hours or under time pressure
The Negligence Led to Injury
Imagine an employee's role is to drive a lift truck. He is told not to go beyond 15 miles per hour but not taught the possible dangers that may arise by driving faster. One day, the employee is trying to meet a tight work schedule and operates the lift truck at 30 miles per hour. The truck flips while negotiating a corner and lands on you and paralyzes you.
If your colleague proves that the company did not inform them of the possible effects of driving the truck too fast, the judge could conclude that the railroad accident was eighty percent the employee's fault and twenty percent the fault of the employer. Remember, FELA permits recovery even if the company's negligence contributes the least part to an employee's injury.
What Damages Can You Recover in a FELA Lawsuit?
Benefits recovered through a Federal Employer's Liability Act lawsuit are extensive. They include:
This is the most noticeable loss a railroad worker undergoes after an accident. Also known as special damages, economic damages are expenses you incur. They are tangible and easy to quantify and calculate. They entail medical bills, lost wages from missed work and time, property damage, and lost income and investment opportunities.
Non-economic damages are meant to compensate for the intangible loss. Below are the most common non-economic losses for which you could recover reimbursement for:
Pain and suffering
Permanent or temporary disabilities
Disfigurement caused by the injury
Change of quality of life as a result of the on-job accident
Can a Deceased Employee's Loved One Recover Wrongful Death Damages under FELA?
When a railroad employee loses their life as a result of an on-job accident, their spouse or estate representative can file a claim to be compensated for losses incurred. First, you need to prove that the railroad violation of the safety statute caused death. After this has been confirmed, the surviving children, spouse or next of kin receive damages for:
Pain and suffering experienced by the deceased before dying,
Financial losses from lost income, benefits, and services that decedent provided before dying, and
Medical bills and funeral expenses incurred due to the accident.
It is worth noting that under FELA, surviving family members are not compensated for emotional distress as a result of the decedent's death.
In most cases, a railroad claim agent will contact the survivors and give them a quick settlement offer. Remember, these kinds of offers are a fraction of the total compensation recovered with the help of a lawyer. You should, therefore, never accept any settlement offer, make a recorded statement or sign any paperwork before consulting your union representative or lawyer. In any case, the railroad aims to reduce financial losses it might incur as a result of the wrongful death accident.
What to Do After You Have Been Injured at Your Railroad Job
Paying attention to your injuries immediately after the accident is crucial. Your case could be won or lost depending on how you respond. If you cannot follow the procedure below, ask a loved one to help you out.
Report the Injury
It is crucial to report to your line manager and fill an injury report form immediately you're injured. Ensure you include all information about the accident: what happened and the contributory factors.
Moreover, make sure you understand your employer's rules regarding the medical leave of absence. Most railroad firms require their employees to renew their medical leave of absence after every thirty days.
Seek Medical Attention
The next step is getting medical assistance. It is okay to accept your company's medical recommendations immediately after the injury. However, beyond that point, you can seek an evaluation from a medical practitioner of your choice. Make sure you describe your injury and the pain you're going through in detail as well as your recovery concerns.
Keep a Record
Keep copies of medical expenses, records, and any other necessary documents. Record how severe the injury is and how it has affected your work and personal life. Remember to include names and contacts of any witnesses to the accident.
Also, write every date you were not in a position to work, the date of the accident and time missed for physician's visits.
Contact your Union
You need to tell your representative what happened, how you're coping and what kind of help you need from the union. The representative might recommend that you hire a lawyer.
Contact a Skilled FELA Lawyer
FELA is a complicated statute that you may not manage navigating on your own. Lawyers with experience in this law can help you prove the railroad negligence for your injury.
The Process of Filing a FELA Claim
The FELA statute of limitations is three years from the date of the injury. Time can go by very fast after the injury, so it's crucial to act fast.
Your employer would like to compensate you the least amount for the injury and will do everything within their power to reduce their responsibility. With robust legal representation, you can be sure that you can recover fair compensation.
Discussed below are different phases of a FELA claim process:
Reporting the Injury
You need to file an accident report with the railroad company immediately you are injured. Make sure you fill out the report form correctly in line with your union agreement. Provide all details; this includes all defective tools as well as hazardous working conditions that could have caused your injuries. Also, provide names and contacts of witnesses who saw what happened. Take as many photos of the accident scene as possible.
After filing the report, let a FELA claims lawyer will review your claim and options.
The Railroad Claim Agent will Contact You
The railroad claim agent will then contact you. It is crucial to bear in mind that the claim agents' interests don't align with yours and their aim is to ensure you get the least compensation as possible. They may even tell you that you don't need a lawyer.
Your Employer Investigates the Claim
Your employer will also examine the accident and how it occurred. During this phase, your employer may request you to provide a recorded or written statement. It is important to note that you shouldn't provide the statement without seeking advice from your attorney.
The railroad will also hire a private investigator to videotape you and collect evidence that will be used as their defense. As a result, you need to be watchful of being monitored. Make sure you comply with your treating physician's orders and don't engage in any physical activity without the physician's approval.
After the evidence is collected and the seriousness of your injury is determined, your attorney will issue your employer with an initial settlement/demand letter. Then, your employer and your lawyer will negotiate until they reach a fair amount that compensates you fully for your injury. If all issues are resolved, this is the last step of the process.
Filing a FELA Claim
A competent lawyer will do their best to ensure your claim is settled without going to trial. Litigation is a more expensive option for both parties. However, if your employer isn't willing to negotiate in good faith, you should bring a claim against them. When preparing the case, your attorney will evaluate your claim and decide where to file the claim. It could be in a federal or state court.
After your claim has been filed, the railroad company and your lawyer will exchange information and documents in the discovery phase. In this stage, negotiations continue. A realization that a trial could be pending may motivate your employer to offer a more reasonable settlement offer. The parties may choose to resolve the case voluntarily through mediation or any other form of alternative dispute resolution (ADR).
Your Claim goes to Court
If no agreement was reached in the pretrial stage and the claim hasn't been closed through a motion by either party, it goes to trial. During this phase, lawyers for both parties present evidence and call witnesses. The trial could last one day or a few weeks depending on the case's complexity. The judge makes the final decision after the parties have argued their case.
The Most Common Types of Injuries Covered by FELA
A catastrophic injury is an injury that leaves you with a permanent physical, psychological or emotional scar. It reduces your living quality and affects different aspects of your life.
For instance, a severe neck injury can be considered catastrophic depending on the seriousness of the injury.
Traumatic Brain Injury (TBI)
A TBI is an intracranial injury that may not be visible but leaves you with many serious and enduring consequences. It occurs when a hard object suddenly hits the skull. It can be mild or severe.
Cumulative Trauma and Repetitive Stress Injuries
Also known as wear out, cumulative trauma is one of the most common injury railroad workers suffer. It is caused by the overuse of one part of the body parts. It could include musculoskeletal disorders to knees, back, hip, hands, and neck that damage your tendons, nerves, and muscles. You may experience symptoms like numbness, burning, swelling, weakness, and pain in the affected body part.
These injuries occur due to repeated exposure to hazards like:
Mounting and dismounting train vehicles
Walking long distances on ballast
Loss of Hearing Capacity and Deafness
Noise-induced hearing loss (NHL) constitutes 50% of the causes of hearing loss. It occurs when noise enters your auditory system through the eardrum, and the hair cells get overstimulated. Although noise exposure isn't preventable, NHL is.
Occupational Safety and Health Administration has put in place standard for noise levels permitted in the workplace. If the noise level exceeds 85dB (A) for eight hours in a day, the employer should install a hearing conservation program. Intermittent noise should not go beyond 140dB (A). The hearing conservation program helps employers to monitor noise levels consistently and frequently calibrate machines.
According to statistical research by the National Institute of Occupational Safety and Health, approximately 3,000,000 employees are exposed to lead annually. Also, those working at the railroad and near trains are at higher risk compared to other occupations. Lead is a very poisonous chemical whose fumes pose a threat to your internal organs if proper treatment isn't taken.
Lead exposure could affect you in the following ways:
Cause renal diseases which require dialysis or gout treatment
Another common effect is on your nervous system
It could also cause cardiac arrest, hypertension, and circulatory diseases
It could also lead to infertility in both men and women or giving birth to premature children, or those with other health conditions
In the 1800s, asbestos was very popular with builders as it was also used to insulate trains. Over time, railroad employees inhale this material and suffer several diseases such as asbestosis. You need to check for symptoms like chest pains, cough, clubbed fingers, and shortness of breath.
You should contact your doctor immediately if you believe you're showing the above symptoms. The doctor will conduct either a CT scan of lungs or chest X-ray or perform pulmonary function tests. There is no cure for asbestosis, but it is manageable.
Frequently Asked Questions about FELA
Are Damages Taxable?
Only two types of damages are taxable. The first one is compensation for the income you are awarded for the work and time you missed due to your injury (lost wages). The logic behind it is that if you had not been injured, your income would have been taxable in the first place. Therefore, your lost damages income will be taxed accordingly.
The other type of damage taxed is punitive damages although on rare circumstances.
How Does Comparative Negligence Affect Your Claim?
Under comparative negligence, your employer will try to show how your negligence or fault contributed to the accident. After all arguments in the claim have been heard, the judge will conclude who should be held accountable for your injuries. Usually, this is done by allocating a percentage of fault to all parties involved. That means you will only recover the percentage found to be your company's fault. For instance, if the court determines the railroad was 80% at fault while you are 20% to blame for the injuries and the total damages amount is $200,000, you will receive $160,000 from the railroad.
Also, if you are found to be entirely at fault, you can't recover compensation under FELA.
What is Whistleblower Protection?
Whistleblower protection protects you against retaliation for making a safety violation report whether to the government or your employer. Adverse behavior prohibited include laying you off, being denied overtime or promotion, demotion, intimidation and reducing working hours or pay. If you're successful in your claim, you could be reinstated your job with the same benefits and pay, receive punitive damages and reimbursed witness fees and lawyer charges. You should file your claim within 180 days after the date you received the adverse action.
Find a Railroad Worker Injury Attorney Near Me
If you've been injured while working on a railroad, The Workers Compensation Attorney Group is ready to hear your case and help you file a FELA claim. If you hire us, we will help you understand your rights, give details on what benefits you are entitled to, help you file a lawsuit and fight to ensure you are awarded your benefits. Call our Long Beach work injury attorney at 714-716-5933 today so we can understand your case and begin the process of filing the workers’ comp claim.