How to Protect Your Rights under the FELA


I. INTRODUCTION

The paper has been designed to assist railroad workers injured in the course of their work in protecting their rights under the FELA.

II. WHAT IS THE FELA?

The Federal Employers Liability Act, commonly known as FELA, governs the liability of every railroad for the work-related injury or death of an employee. It is a federal cause of action, meaning that the United States Congress intended for all railroads across the country to be guided by the same liability standards. The FELA was enacted in 1908 in an effort by the United States Congress to protect the railroader.

Although the FELA protects railroad workers, it is not workers' compensation. It does not require payment regardless of fault. In order for a worker to recover under the FELA, a worker must prove negligence or fault on the part of any of the officers, agents or employees of the railroad or by reason of any defect in the cars, engines, appliances, machinery, track, roadbed, or other equipment.

A very important part of the FELA is a provision known as "feather weight causation." In most every case tried in federal or state court, a Plaintiff must show a very close "link" between the alleged wrong and the Plaintiff's damages. Under the FELA, however, the railroad is at fault if its negligence or wrong played a part, no matter how small, in bringing about the injury or death. This provision alone makes a world of difference in trying and settling FELA cases.

An even greater benefit to the injured worker is the ease of recovery if the worker's injury was caused in any part by the railroad's breach of a duty imposed on it by a safety statute or regulation, such as the Safety Appliance Act or the Boiler Inspection Act. The Safety Appliance Act requires railroads to use certain safety appliances such as specific types of brakes, automatic couplers and handholds and to maintain the parts in good order. The Boiler Inspection Act makes it unlawful for any railroad to use any locomotive unless the locomotive, its boiler, tender and all parts are in proper condition and safe to operate in active service of the carrier without unnecessary peril to life or limb and requires periodic inspection of locomotives and all their parts. If an injured worker can establish that one of these Acts was violated, the worker does not need to prove that the railroad was negligent.

When it comes to proving the case, the United States Congress has granted the railroader many benefits that are not available to any other occupation.

III. WHAT CAN A SUCCESSFUL WORKER WIN UNDER THE FELA?

Generally speaking, a successful plaintiff under the FELA can win the following sorts of damages:

1. Wages lost from the time of the injury to the time of trial;

2. Wage loss in the future;

3. Medical expenses in the past and in the future; and

4. Pain, suffering, and mental anguish in the past and in the future.

Without a doubt, the most important element of any FELA case is the measure of future wage loss. Obviously, railroad workers who have been on the job for a long period of time can earn a very good living. If an injury that is caused by the railroad physically prohibits the worker from returning to work on the railroad, the difference between the earnings of the worker before the injury and after the injury are determined and then multiplied by the worker's expected work life. For example, if an engineer that was making $80,000 a year is injured and can only return to work to a job making $10,000 a year, the worker has a $70,000 a year wage loss. If the worker is twenty-five years old, his work life may be 35 years, and the future wage loss is a very significant amount. Federal law provides that any award for future wages must be reduced to present value. That means an economist must calculate what sum of money paid today would deliver a stream of payments into the future equal to the amount the worker could have earned if he stayed on the job.

Punitive damages are not recoverable in any FELA action. Additionally, the railroader does not have a cause of action for loss of household services or damage to the marriage.

The law also provides a remedy if an injury causes the death of a railroad worker. Under the FELA, the surviving spouse and children of the employee are known as statutory beneficiaries. If the worker does not have a spouse or children, then the beneficiaries include the employee's parents and if no parents, the next of kin dependent of such employee. A personal representative such as an executor is entitled to bring an action that the worker would have possessed had he remained alive against the railroad. In other words, the worker's cause of action against the railroad does not die with the worker. Under the Wrongful Death Action, damages go to the survivors and is measured by the beneficiaries' "pecuniary loss." Pecuniary loss means the loss of financial support as well as a loss of services by the spouse and loss of care, counsel, training and education to the minor children. What is not recoverable, however, is non-pecuniary damages such as grief, wounded feelings, loss of society or companionship. Thus, this is one area where the FELA cause of action is not as generous as other causes of action. If a long-time railroader contracts a rare cancer or disease, an attorney should be consulted to determine if there is a link between the disease and the many chemicals and other hazardous substances railroaders are exposed to on a regular basis.

IV. WHERE ARE THE CASES FILED?

Under the FELA, a case can be filed in either federal or state court. The provisions of the FELA provide for several different places where the case can be properly filed and tried. A worker must depend on his attorney to file the case in the proper court. Generally, courts in the southern and eastern parts of the state such as Beaumont, Galveston and Houston have more favorable results for workers than those cases in the western part such as San Antonio, Austin and El Paso.

V. HOW LONG DO I HAVE TO FILE A LAWSUIT?

The Statute of Limitations in an FELA case is three years from the date of the injury.

VI. RAILROAD DEFENSES

The primary railroad defense to a FELA action is that of contributory negligence on the part of the worker. Contributory negligence means the fault or negligence of the railroad employee that brought about the injury. At the conclusion of every case, the jury will answer a series of questions as to which party (the plaintiff or the railroad) was negligent and then the jury is asked to place a percentage of negligence as to each negligent party that caused the accident. For example, the jury may find that the railroad was 60% at fault and the worker 40%, or that the worker was 99% at fault and the railroad was 1% at fault or any combination in between. The jury can also find that the railroad was 100% at fault or the worker was 100% at fault. The practical fact is that for every percent of negligence placed upon the plaintiff, the plaintiff's award will be reduced accordingly. For example, if the jury finds the railroad is 60% responsible and the worker 40% responsible, and awards $100,000, the court must deduct 40% or $40,000 from the award, and the worker would receive $60,000.

VII. HOW MUCH IS MY CASE WORTH?

One of the most frequently asked questions that we are presented with as railroad lawyers is: How much is my case worth? Also we are presented with the following: Joe Blow got $8 million for his case, how come I'm only getting $3 million? It is important to remember that every case is different and it is very hard to value one worker's case by looking at the results of another. At best, an experienced lawyer can only give an estimated guess as to the value of a case when it is first presented to him by the client. Ultimately, if the case does not settle, its value will be determined by six or twelve complete strangers. An experienced lawyer, however, may look at several factors and give an opinion as to the value of the case. Experience railroad attorneys will look to the following factors:

1. The fault of the negligence of the railroad in bringing about the injury;

2. The fault or contributory negligence of the railroader in bringing about the injury;

3. The nature of the injury;

4. The amount of time the worker is disabled;

5. The age of the worker;

6. The education of the worker;

7. The previous job or career of the worker;

8. The prior injury history of the worker;

9. The employment record of the worker; and

10. Whether there are any factors that may bear on the worker's credibility, such as convictions or felony crimes.

All of the above referenced factors must be considered and weighed in determining the value of an FELA case. The modern trend in litigation of FELA matters is for the courts to order mediation before trial. Mediation is a process where an independent party, known as a mediator, attempts to assist the settlement of the case. Normally, all the parties appear at the mediator's office and both the plaintiff's attorney and defendant's attorney present the high points of their respective case to the mediator. The plaintiff's attorney will make a demand and the mediator will start the negotiation process and act as a go-between to facilitate the settlement. Mediation is a very positive process and normally results in the settlement of the case. It is very successful because all of the parties necessary for settlement are present and both the high and the low points of the respective sides are stressed by the mediator to the parties.

In some instances, especially in federal court, the trial judge will hold a settlement conference in an attempt to settle the case.

The vast majority of FELA, as well as other cases, settle prior to trial. The primary reason for settlement of the case prior to trial is that the ultimate outcome of the suit is put into the parties' and as opposed to six or twelve strangers. Although an experienced railroad attorney can estimate the value of the case, no one has a crystal ball and juries often times come forward with inequitable results. Moreover, another factor to consider is even if the worker is successful at the trial level, the railroad often appeals any verdicts against it, which appeals can last several years and tie up the award.

VIII. WHAT SHOULD I DO IF I AM HURT AT WORK?

There are several steps a railroader and his family can take to preserve and protect the valuable rights given to a railroader.

1. The most important step a railroad worker can take is to identify the producing cause of his injury as soon after the injury as possible. The railroad requires every injured party to fill out an incident or accident report soon after the accident and this is the first opportunity the railroader has to identify the fault of the railroad as to the producing cause of the injury. If something breaks or is not in good order, is slippery or greasy or broken, note it in the accident report. If you think that any order that was given to you was faulty or negligent or any piece of equipment that you were given to work with was faulty or not in good order, put it in writing. Judges and juries tend to believe statements given by workers at or near the time of the incident before a lawyer gets involved much more than versions of an incident that come to light several months later. We cannot stress how important it is that if there is any faults on the railroad to note it on the accident report;

2. Contact an experienced railroad lawyer as soon as possible after the accident. An experienced lawyer that is familiar with railroad cases, will help draw out and point out those areas which may be considered railroad liability. The lawyer should also hire an investigator as soon as possible to take statements supporting the worker's position;

3. Make a selection of a competent physician of your own choice for treatment. This is also a very crucial and important item. If at all possible, do not let the railroad recommend or select a physician for your treatment. Ask an attorney or your co-workers who have been injured what physicians in the area where you live give the benefit of the doubt to the worker as opposed to the railroad. In our practice we mostly see physicians who are either pro-plaintiff or pro-railroad. A pro-plaintiff physician understands the work requirements of a railroader and will not send the worker back to the job before an appropriate time. A good worker's doctor will perform all necessary tests to determine the extent of the injury before returning to work. On the other hand, a railroad physician gives the railroad the benefit of the doubt and most often will state that the railroad worker is not injured and can go back to work;

4. Select an attorney that is familiar with the FELA. Ask any attorney that you talk to how many FELA cases they have handled and how many they have tried. Ask the attorney where he plans to bring the lawsuit and, what are the usual results in that particular court. Inquire as to whether or not the attorneys work with certain physicians or group of physicians. Inquire as to whether or not the attorneys can assist with living expenses

IX. WHAT CAN I EXPECT FROM THE RAILROAD?

One of the most important things to remember for any injured employee is that the railroad is a business. The primary goal of a business is to make money. An injured worker represents a loss. Claims agents and claims representatives, although they may appear friendly, have one goal in mind, to save the railroad money. In order to save the railroad money, it is incumbent upon claims agents and representatives to minimize your injury or place the blame of the injury upon the worker. Often times, railroads will hold hearings as to purported rule violations on the part of the worker that led to the injury. It is important that you speak to an attorney before one of these hearings and have a representative of the Union present at the hearing. Be very careful and attempt to talk to an attorney before any recorded statement is given to the claims adjuster. Often times, a statement will be taken soon after the accident while the worker is still under the shock or under heavy medication. Claims agents are experienced and trained to bring out the weak points and to turn around a set of facts against the employee. A worker that has consulted with an attorney before giving a statement will be made aware of these ploys and the ways to avoid being shut out by the company. One thing that the railroad is prohibited from doing is using any form of intimidation to prevent a worker from: (1) pursuing his rights under the FELA; or (2) collecting information about the accident from witnesses. In fact, the railroad commits a felony if it acts in this manner.

X. CONCLUSION

Often times, events that take seconds to transpire can affect a worker's career, family and livelihood forever. The decision to pursue claims against the railroad is an important one and should not be taken lightly. The rights of the railroad worker have been hard fought and should be guarded zealously.

If you have any questions or would like to speak to either Dennis McElwee or Matt Shaffer, please call us at 1-800-282-2122 or 713-524-3500. If you would like more information, call us day or night.