FELA railroad lawsuits are filed on behalf of injured railroad workers who have been hurt on the job. They allow railroad workers to file a claim against their employer in order to get compensated for past and future lost wages, pain and suffering, past and future medical expenses, past and future benefits, and loss of enjoyment of life.
- Are all railroad workers covered under FELA? Yes.
- What should I do after a work-related injury as a railroad worker?
- Should I go to my own doctor after my accident and will the railroad pay for it? Yes.
- Do I have to get “approval” for my medical treatments through the railroad’s “medical department?” Absolutely not.
- What’s a way I can cover my expenses when I’m out of work? File for your Railroad Retirement sickness benefits and disability insurance.
- Should I fill out the personal injury report? Yes, when you’re ready.
- Should I give a statement to the claims adjuster? No.
- Does the railroad have to pay my wages when I get hurt? Unfortunately, not.
- How long do I have to file a FELA claim? 3 years.
- What damages are covered by FELA?
- Is FELA the same as worker’s compensation? No.
- Do the railroads do surveillance of their injured employees? Yes.
- What happens if the railroad blames me for my accident or injuries? You can still receive compensation.
- Is the Vocational Rehabilitation program helpful? No.
- Can I return to work after filing a FELA injury claim? Yes.
- How does the FELA claim process work?
- Is my FELA claim filed in state or federal court? Can be either court.
- How long does a FELA claim take to settle? Depends.
- Will it be faster if I dealt with the railroad company directly for my claim? Not necessarily.
- When should I hire an attorney and what kind of attorney do I need? ASAP, an attorney that specializes in railroad law.
Are all railroad workers covered under FELA?
Yes, almost all railroad workers are covered under the FELA. Some examples of workers that are covered would be:
- An locomotive engineer hits a tree on the tracks from a bad weather storm after dispatch failed to warn him.
- A conductor dealing with a defective coupler that caused injury to his shoulder.
- An onboard service employee (such Amtrak employees) slips and falls when the train runs over known bad track.
- A railroad switchman is required to use improper tools and equipment for track maintenance while working as part of a track gang.
These are just a few examples of the types of workers who might be covered under FELA.
What should I do after a work-related injury as a railroad worker?
- Get medical care from your own doctor.
- Report your injury and fill out the personal injury report (when you’re ready) for your railroad employer.
- Do not give a statement to the claims agent or any supervisor/manager.
- Write down the details of your accident & document everything, including any witnesses to the accident.
- Apply for Railroad Retirement Board sickness benefits to help supplement your lost income while you are out injured.
- Consult with a railroad injury lawyer for more in-depth explanations and guidance.
Documenting your accident and your injury
If you’re able at the time of your accident, try to do the following:
- Take pictures of the location of the accident, especially if you were in a crossing accident.
- Take pictures of any machinery or equipment that contributed to your accident.
- Get the names, addresses, telephone numbers of any crew members or witnesses to your accident.
- Take photographs of any visible injuries before they heal.
In the months after your accident:
- Keep any records of your earnings that you’ve lost and any out of pocket expenses.
- Keep a pain journal to document your bad pain days or changes in your condition.
- Show your doctor the pain journal in order to properly document the extent of your pain and injury.
It’s important to document all of those things in the off-chance you file an injury claim. Keeping a record will go a long way in building your case and getting you the compensation you need.
Don’t Get Railroaded
A Railroad Worker’s Guidebook to
Protecting Yourself After Your Injury
- What to do when you’ve been hurt in an accident.
- What laws apply to you as a railroad worker.
- What mistakes to avoid after your railroad accident.
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Should I go to my doctor and will the railroad pay for it?
You absolutely can and should go to your own doctor and the railroad is legally required to pay for it.
You pay your premiums and the railroad pays part of your premiums for your medical insurance. Under the collective bargaining agreement that you have with the union, the railroad is responsible for covering your medical treatment. However, they’re not allowed to pick your doctor and they’re not allowed to “authorize treatment.” If you have a claims agent or one of your supervisors tell you, “I’m sorry, you can’t get your MRI,” please know that you need to do two things. You need to call a lawyer who specializes in railroad work and you need to document this conversation. What the railroad is telling you is false. They cannot deny you medical treatment. Doing so is breaking the law.
Getting the proper medical care after your injury
The most important thing to do after a railroad accident is to get the medical care that you need with your own doctors. If you request medical treatment from the railroad, they have to immediately provide that to you. They are not allowed to deny you medical treatment after you’re injured. They’re not allowed to say, “Are you sure? Do you want to wait? Maybe tomorrow. We can’t take you right now.” None of those things they can do. That is whistleblower protection.
If you have a railroad employer that does not allow you to go to the doctor or to the hospital after an accident, you need to speak with an attorney immediately.
You don’t need to see a doctor recommended by the railroad. You can see whatever doctor you choose.
That is your right under the injury law and under the whistleblower law to choose your own doctor. If the claims agent or your supervisor tells you that you have to see someone that they recommend, please know that that is entirely false.
Seeing a company chosen doctor can be one of the worst decisions you make in regards to your claim. The reason is simple: to determine how badly injured you are, it takes running tests; a doctor that wants more business from a large railroad company will not want to run the bill up on that railroad company and he may be reluctant to recommend expensive tests for you. It’s easier for him to just delay you and ‘wait and watch’ in the hopes you may get better than to actively run expensive tests to make sure you know the full extent of your injuries.
Getting the company to pay the doctor
Railroad workers are often concerned that their railroad employer will stop their medical treatment. Under the FELA, the railroad cannot pick your doctors and they also do not authorize treatment, which means they legally cannot stop your treatment.
Tell the doctor’s office you are NOT workers comp
The doctor’s office will probably ask you if you’re Workers’ Comp. You are not. Many of the doctor’s offices have no idea what FELA is, so you will need to tell them to talk to the nurse case managers at the railroad about getting paid. Bottom line, the railroad pays for the medical treatment but they don’t control your treatment.
Again, this is another reason why it’s important to talk to an attorney, sooner rather than later, who can coordinate with your medical providers to let them know how this law works.
Tell your doctor the full story of how your accident happened.
Once you’re able to see your own doctor, make sure to give them a full history of what happened. Tell them about your injuries and how they occurred. It’s important to give your doctors a full history so you have documentation in your doctor’s notes that say exactly what happened to you on the date of your accident and what parts of your body were injured in an accident.
Keeping your company in the loop regarding your treatment
Because the railroad is your employer, it has a right to know that you’re out of work receiving treatment. There are certain forms you will need to fill out for your company so that they are kept informed. If you don’t provide updates to your company regarding your medical treatment, they can charge you with absenteeism and then terminate your employment.
Again, it’s important to talk to someone that knows about how the railroads work in injury claims in order to protect you. I tell clients all the time you have to remember that the railroad protects itself. You need someone to protect you.
Do I have to get “approval” for my medical treatments?
No, you do not need approval to go to a doctor of your choice.
The railroads prey on medical providers that are used to dealing with nurse case managers who work on claims for individuals covered under workers’ compensation. Under the FELA, the railroad does not have a right to talk to your treating doctor, to have access to your medical records, or to be in the room when you are being examined by your doctor. The railroad processes your medical bills but these bills are processed under your group health insurance policy. Do not allow the railroad to talk to your doctors because they “pay the bills.” As a railroad worker, you do not waive your doctor/patient privilege. This privilege is protected under the FELA and the whistleblower statute.
How do I cover my expenses when I’m out of work?
Immediately after going to the doctor, file for your railroad retirement board sickness benefits.
As a railroad worker, you’re putting money into the railroad retirement board from every paycheck that you get. A lot of that is for retirement once you get your 20 or 30 years in. You can start drawing from that retirement plan with the railroad retirement board, but in addition to those benefits, you also are entitled to sickness benefits. It’s important to apply for those as soon as you see your doctor because it takes some time for those benefits to come in.
Filing for disability insurance
If you have disability insurance, file for it after you see your doctor. Your union has probably told you also that it’s important to have disability insurance. A lot of the unions talk to their members about getting disability insurance immediately once they start working. So if you have it, make a claim for those benefits so that you have both sickness benefit money coming in and also disability payment money coming in so you can pay your bills.
If you don’t have disability insurance, the sickness benefits only run for a certain amount of time, so again, it’s very important to talk to a lawyer that specializes in railroad law to help you figure out how you’re going to take care of your family and yourself while you’re recovering from your injury.
Watch out for advances from the railroad
Often times the railroad will offer injured workers advances, however, you will have to pay those advances back.
While this may seem tempting at the time while you’re worried about how you’re going to live, it’s better not to take advances from the railroad. First of all, oftentimes those advances come with the requirement that you don’t talk to a lawyer. They’ll say, and the claims agent will tell you, “Look, I’ll take care of you. Just don’t talk to a lawyer. I’ll give you advances and your full paycheck and work this out.”
Oftentimes that means that what they want you to settle your claim for much less than what it is worth. They use the advancements as a way to say that they took care of you and you should take care of them. It’s better to go through your disability policy and to go through your sickness benefits and talk to a lawyer that knows how these claims work so that you’re protected and get full compensation for your injuries.
Should I fill out the personal injury report?
YES, you need to fill out your personal injury report as soon as possible after your injury as almost all railroad have rules that require their employees to fill this report out as close to the accident as possible. Ideally, you need to fill out the personal injury report before you leave the yard, before you leave the accident scene, if you’re able.
However, you do not have to fill out a personal injury report until you are capable in body and mind. This means that if you are in shock, pain, in the hospital undergoing treatment, taking medications that could affect your ability to competently fill out the report, you can agree to fill out the report later. Again, if you’re not able to fill it out and you’re at the hospital, you can always wait to do it. It doesn’t have to be done immediately at the hospital by a supervisor. They don’t need to put words in your mouth. You don’t need to allow them to fill it out for you. You can say once you are feeling up to it, you will immediately fill it out.
Do not let your supervisors or management fill that report out for you.
There are certain questions on the report that help the railroad if an injury claim is filed and goes to court. Some of these questions might be:
- Did the company do anything wrong that contributed to your accident?
- Was there any broken or defective equipment that failed?
- Were there any unaddressed safety issues?
- Was there an issue with the lighting?
We’ve had clients in cases answer these questions with no, indicating that the railroad did nothing wrong. There was no equipment that had failed. There was nothing defective about anything that was done during the accident. Answering no to these kinds of questions on your report when there were safety hazards contributing to your accident can hurt your case and limit your compensation.
Be short and to the point
If you’re able to fill out the personal injury report yourself, be short and to the point. Explain exactly what happened and if there is an issue with equipment, with lighting, if there was a safety issue, etc. You need to put that on that personal injury report because the railroad is going to use that report against you to say that at the time of your accident you didn’t think that the railroad did anything wrong.
Should I give a statement to the Railroad’s claim agent?
DO NOT give a statement to the railroad claims agent. There is nothing under the law that requires that you give a recorded or written statement to the railroad’s claim agent.
Does the railroad have to pay my wages when I get hurt?
No, because the FELA is a negligence-based statute, you would need to prove the company failed in their responsibilities before you received any lost wages. The railroad has a non-delegable duty to provide its employees with a safe place to work. In order to recover your wages and the other elements of damages in a FELA claim, it must be proven that the railroad failed to provide you with a safe place to work and that failure caused your damages, even in the slightest.
How long do I have to file a FELA claim?
Under the Federal Employers’ Liability Act (FELA), you have 3 years to file a claim.
That’s the strictly legal answer, however….the sooner you bring your claim the greater likelihood you will receive a higher settlement. The value of your settlement is driven by two things: showing your company bears some or all the responsibility for your injury, and proving your injury through solid medical evidence.
The sooner you file your claim, the sooner your attorneys can start to gather evidence to show why your injury happened, and the sooner you can get to medical providers who will actively try to seek out what injuries you may have suffered. This generally takes running tests and often company-chosen doctors will delay or refuse to run such tests.
Unfortunately, because of the way the laws are set up, once you are injured, your employer becomes adverse to you. As soon as you’re injured, the railroad wants to make sure they’re not at fault for that injury, in order to limit the recovery that you may have.
What damages are covered by FELA?
As a railroad worker, you can receive compensation for:
- Past and future lost wages
- Out of pocket expenses, fringe benefits
- Pain and suffering
- Medical expenses
Railroad workers always ask me what damages they can recover under FELA. By damages, that means what are the losses? What are the things that you may lose by being injured that you can recover under this law? Unlike Workers’ Compensation, the FELA injury law works differently for railroad workers.
Past & future lost wages
You’re able to recover your wage loss, which includes your past lost wages and your future lost wages, meaning from the time that you’re hurt up until the time that you participate in a trial, those are your past lost wages. If you’re not able to return to your career at the railroad, you may have a claim for future lost wages.
Out of pocket expenses or fringe benefits
You’re also entitled to recover your out of pocket expenses and any fringe benefits you may lose. That means any payments that the railroad makes for your health benefits and other benefits that you get with the company. If you’re losing those because you’re out of work, you’re entitled to make a claim for those benefits.
Pain & suffering
You’re also able to receive compensation for your pain and suffering, your past pain and suffering and your future pain and suffering. What that means is if you have to go through medical treatment, surgery, being out of work, the mental instability of not knowing whether you’re going to have a paycheck, all of those things are included in your past and future pain and suffering. If you may have to have surgery in the future, if you are not able to return to your career, these are things that a jury can look at to decide on whether you would be entitled to pain and suffering from what you’ve been through in your case.
Past & future medical expenses
You’re also entitled to receive medical expenses, past medical expenses and future medical expenses. Juries look at the value of whether you’ve lost a limb or whether you have lost your ability to work. These are all things that they look at if you’ve been injured where there’s some disfiguration. They can consider the value of those things. Any economic loss that would be for your dependent in the event that this would be a death case, those types of damages are recoverable under the injury law that protects railroad workers, which is the FELA.
Is FELA the same as worker’s compensation?
No. Railroad workers have unique rights that are not the same as workers’ compensation.
With Workers’ Comp, there is no necessity for someone to be at fault in order for you to recover, but there’s a limited recovery that you can have under Workers’ Comp. The benefits are usually a fixed amount and normally undercompensate an injured worker, as workers’ compensation provides no compensation for pain and suffering and only partial wages.
However, railroad workers injured on the job are entitled to damages such as past and future lost wages, pain and suffering, past and future medical expenses, past and future benefits, and loss of enjoyment of life. So the injury law with FELA protects you more and is able to give you more than Workers’ Comp, but the trade-off for that is that you have to prove the railroad did something wrong or negligent.
It’s important that when you are injured, you talk to an attorney that specializes in railroad law in order to help protect you because the railroad will be doing the same thing in order to protect itself with its own lawyers. Do not believe the railroad claims agent when he/she tells you that you are just a “workers’ comp case” and the only compensation the railroad owes you is your wages.
Do the railroads do surveillance of their injured employees?
Yes. The railroads become “peeping Toms” after your accident to try and “catch” you doing activities not consistent with your injuries. For example, if you have a back injury and are restricted to only lifting 10 pounds, the railroad wants to catch you at the store lifting a 20-pound bag of dog food. Juries don’t like “peeping Toms” but dislike liars even more.
The important thing to remember is to be truthful about any activities you are doing while you are injured and to document how you feel after doing activities in your daily life. You may be able to get the groceries or dog food into your car, but then you may be in pain after. Be sure to follow the instructions of your doctor and if you have pain after certain daily activities, report them at your next appointment.
What happens if the railroad blames me for my accident or injuries?
FELA protects railroad workers, even if the worker is partially at fault.
The FELA has a provision called “contributory negligence” which means that the railroad can still be held liable for your injuries even if they are only 1% at fault. If a jury would determine that you were partially responsible for your accident or injury, the jury could reduce the award you receive by the amount you are responsible. For example, if the jury awards you $500,000 and believes that you contributed 10% to your injury, then your claim would be reduced by $50,000. So, don’t let the railroad claims agent tell you that you will not be entitled to any compensation if you were at fault. This is a scare tactic to keep you from receiving your full compensation.
Is the Vocational Rehabilitation program helpful?
No, it is a sophisticated tactic that is not designed to help an injured worker but rather helps the company.
The railroads like to offer “vocational rehabilitation services” to injured employees. Vocational Rehabilitation is typically a program that trains to help an injured individual return to his job or another job within his physical or mental restrictions. The railroad creates these vocational rehabilitation programs to offer jobs to injured workers within the company that are usually outside your craft and in another state. It is a smokescreen and is used at trial to make it appear that the railroad cares about its injured employees and it is the employees’ fault that he or she is not back at work. It is important that you speak with a FELA attorney to help you navigate the deceitfulness of these “helpful” programs.
Can I return to work after filing a FELA injury claim?
Yes, you can absolutely return to work after a FELA claim. The goal should be to try to return to work after you’re injured if your doctors allow you to. The railroad cannot stop you from trying to return to your former position after your doctors have cleared you to return to work. When they attempt to do this and stop you from returning to your job, it is a violation of the whistleblower statute.
How does the FELA injury claim process work?
- Your accident happens and you get injured on the job.
- Call an experienced railroad attorney to help you keep your claim on track.
- You file a claim within 3 years of the date of your accident.
- The claim is filed in either state or federal court.
- You start collecting evidence showing the severity of your injuries. This involves going to the doctor and hiring experts to prove you’re hurt like you say you are.
- You start building your case by gathering documents and testimonies that show the company was at fault for your accident.
- You and the company begin talks to reach a settlement that both parties agree on.
- If a settlement isn’t agreed upon, the case goes to court in front of a judge or jury.
- The judge or jury makes a decision on how much, if any, to award you.
- If awarded, you’ll sign a settlement agreement and receive a check.
Is my FELA claim filed in state or federal court?
For an injury claim, railroad workers are able to file their case in either state court or federal court. Because FELA is a federal law, railroad workers have the choice to go to federal court. It’s a decision that you will make with your attorney, and your attorney should be able to sit down and talk to you about the best venue, or place, to file your claim. You will get a jury when you file an injury claim in either federal court or state court.
How long does a FELA claim take to settle?
There is no exact timeline, but generally, federal court cases move faster than state court cases. Cases can take anywhere from 12-15 months or more before a settlement is reached.
Many railroad workers ask me how long the process takes and, unfortunately, any attorney that is being honest with you does not have a crystal ball to give you an exact date. However, an attorney can tell you that in state court claims take a certain amount of time, or in federal court they can be faster, because federal court is typically considered a “rocket docket.”
The Nature of Your Injury Affects How Long the Case Takes
It’s important to remember, though, that the length of time that it takes for your injury claim may also be affected by the nature and type of your injury. I like to tell clients, “Remember that the legal part of your case always follows the medical.” What that means is it’s hard to evaluate your case without making sure that we understand the severity and/or permanency of your injuries, which will be determined by your doctors. You would never want to have an attorney evaluate your claim while you’re still treating for your injuries.
Will it be faster if I dealt with the railroad company directly for my claim?
While the claim agent may tell you it’s going to be a quicker process to deal with them directly, what they’re willing to pay is going to be less than the true value of your claim. The railroad claims agent is trying to pay as little as possible to settle the claim and does not have your best interests in mind.
Many injured railroad workers, unfortunately, believe that it may take less time to get money for their claim if they deal with the railroad’s claims department. However, dealing with a railroad claims department puts an injured worker at risk of taking less with a settlement for their injury than what it is actually worth.
Injured railroad workers need to remember that the claims department is a sophisticated entity of the railroad, whose primary goal is to make sure that railroad workers receive less for their injuries than what they should be receiving.
While dealing with an experienced railroad attorney may take longer to resolve your claim, at the end of the day, it will be the true value of your claim instead of what the claims agent decides is the minimal amount due to you after your injury.
When should I hire an attorney and what kind of attorney do I need?
You should seek legal advice from an experienced railroad lawyer as soon as possible after your accident. Because of the specialized nature of the laws covering railroad workers, you need a lawyer who knows these laws. Call the experienced railroad lawyers at Poolson Oden to help you navigate through the complicated laws that protect railroad workers. Talk to your union representative who is going to know of lawyers in your area that specialize in injury work and railroad harassment work and talk to them as soon as you can.
You don’t have to let the railroad know that you’ve talked to a lawyer. That’s confidential communication. Most railroad workers are very concerned initially that someone at the company will find out that they’ve spoken with a lawyer. Even if you have spoken to an attorney, that is not something that you have to tell them, even if they ask you directly. It is confidential. You don’t have to tell them that you’ve sought any type of counsel.
Call the specialized railroad attorneys at Poolson Oden to help you navigate these laws and keep your railroad claim on track. We take the time to answer your questions for free.
The history behind the FELA railroad law
The FELA railroad law, also known as the Federal Employers Liability Act, was enacted by Congress in 1908 because they recognized the serious dangers that railroad workers faced in their job. As the road tracks were being built, Congress noticed that the country’s progress in transportation was being built on the backs of these railroad workers who were being seriously maimed and injured without complete compensation for themselves or their families. Congress decided that this type of work was both particularly hazardous and unique and that there needed to be special laws to protect these workers. The fact that the work was being done in-between states allowed too much variance from state to state and often left the workers without any recourse were they injured.
So, Congress decided to enact one Act that protected these railroad workers. By enacting this federal law, railroad workers were able to recover for their injuries and be exempt from being covered under a state Workers’ Compensation law. This is important for you as a railroad worker because it allows you to receive different compensation for your injuries. However, in order to receive this type of compensation, you have to prove that the railroad caused your injury in whole or in part.
The cornerstone of this law is that railroads have a “non-delegable duty to provide a safe place to work.” What that means is that your employer must provide you with a safe place to work. They can not delegate that responsibility to another company. They cannot put that on the shoulders of the workers. This is a continuing duty of the railroads to provide its employees with a reasonably safe place to work at all times and at all places of employment.
When these responsibilities are not met, this law allows railroad workers to bring a lawsuit against their employer. In railroad cases, a railroad worker must show through evidence that the railroad had done something wrong and has not provided them with a safe place to work.
Congress recognized that by allowing an employee to sue their railroad employer that would essentially put the worker and the employer at odds with one another and would create an unbalance for the railroad worker. To address this, Congress reduced the burden on the worker to prove complete fault. If the railroad contributed even in the slightest to the injury, the railroad would be held negligent and the worker would be able to recover damages.