The Federal Employers' Liability Act - (The Railroad Act)

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My name is Anthony "Tony" W. Hernandez and I am a railroad F.E.L.A. attorney with the Law Offices of Anthony W. Hernandez, P. C. The purpose of this document is to advise members like yourselves, of the rights under an act called the Federal Employers' Liability Act. This act is one enacted for the purpose of allowing recovery for any employee who has been injured on the job while working for the railroad. Please remember that it is not my intention to create or encourage any unnecessary filing of claims, and it is my belief that the majority of all claims sustained while working for the railroad can be handled directly with the Railroad claims agent, without the direct involvement of a lawyer. However, please remember that I am available as a service to you, for the purpose of obtaining information over the telephone by dialing my toll free telephone number at 1-800-442-1953, and I would like very much for you to utilize that service for your own benefit. Please also note that you can E-mail me at my E-mail address provided for you on my home page.

Too often an injured employee, after having made a settlement with the claims department, will find out about the various lawfirms and contact me relating to the famous story that he has settled his claim and finds that his injury is more serious that he or she anticipated and he or she is no longer able to work and has been pulled out of service. Legally, I can set aside the various releases, but it is a difficult chore and I am providing this information to you now, so that you will not be confronted with this problem. I would like to discuss the various aspects of the law under the Federal Employers' Liability Act. As I have related to you earlier, the Federal Employers' Liability Act is one which was enacted by congress in 1908 for the purpose of protecting railroad employees. You, as railroad employees, are not covered by the various state compensation laws. This misnomer or misconception has worked to the disadvantage of many employees like yourself, by having the belief that they are cover by Workman's Compensation and that they will automatically recover benefits without showing more than merely having been injured on the job. This is not the provisions of the law that govern your legal rights. The law that governs your specific legal rights, the F.E.L.A., specifies that in order for one to recover for any injury whatsoever while working for the railroad, he or she must first prove that the injury was sustained in the course and scope of his employment as a railroad employee and secondly, he or she must prove that the injury was caused by the negligence or fault of the railroad, in whole or in part. Only after the railroad employee has proven these two (2) aspects can he then proceed to prove how much in money damages he has been injured and request some form of compensation or payment on the part of the carrier. You must always remember that your employer, the railroad, is quite financially capable of hiring the best legal representation to protect their rights or protect themselves, against claims by employees for an injury on the job. In discussing the fault or negligence necessary to prove your claim, I would like to go into three (3) categories that we normally find prevalent on the railway systems:

1. It is the employers obligation, and non-delegable duty to furnish you with proper tools and equipment to perform your work.

2. It is also the duty of your employer to furnish you with sufficient help in which to preform that work.

3. It is the over all general duty of the railroad to provide you with a safe place in which to work.

We can all at on time or another, in our experiences with railroad cases, in our everyday handling of railroad files, and in your everyday experiences working as a railroad employee, find that at one time or another, you were ordered to do a specific job without the proper equipment and possibly with equipment that was defective, in bad order, and as a result of this, may possibly have been injured. If this is the case, then you have the necessary fault or liability to prove your case, and can legally recover for damages that can be proven. As I have stated, secondly, the railroad also has that duty to provide you with sufficient help. With the number of lay-offs that we have had, the transferring and furloughing of many employees, it is often found that one of the bigger parts of proving negligence lies in the Railroad's failure to provide you with sufficient help. Generally you may have been use to three or four men customarily doing a job, and then all of a sudden you find yourself with only two men or possibly even one man handling the job, whether it be handling ties or a piece of rail or whatever, and as a result of this, someone is injured, then that employee is entitled to recover under the Act. Then thirdly as I have mentioned, the unsafe place to work. Any aspect of your work which causes an unsafe condition and as a result of this condition, causes an injury to a railroad employee, this would be sufficient to give that employee a right to claim damages under the law. The provisions and categories that I have mentioned bring to mind one of the problems that railroad employees encounter on a daily basis: the CLAIMS DEPARTMENT. As a former claims agent, I know all to well that it is their position and their job to obtain statements which will minimize the exposure in the amount of money that the railroad will have to pay out on a claim for damages. In order to do this, the Claims Department has the responsibility of showing that it was the fault of the employee, and not the employer, who caused his own injury. The F.E.L.A. that governs your rights as an employee of the railroad, also provides that if the employee himself was negligent or at fault, the jury and the law provides that his negligence will decrease his recovery by that sum in which he or she was negligent. So it is very important to remember the necessary fact of having to prove negligence, and remember that when the claim agent approaches you, if at all possible do not give a statement. However, do remember that by agreement it is necessary that every employee is obligated to fill out an accident report, and I by all means encourage the filing of an accident report for the simple reason that:

1. It is a documentation of your injury;

2. And by agreement, if you fail to do so, the railroad may possibly hold an investigation and they may possibly discharge you.

As I have indicated, fill out the accident report, but I recognize as well as all of you recognize, that many times injuries or sprains or strains, do occur while working on the job and that if every time you felt a little pain from doing heavy work, you filled out an accident report, you would be filling an accident report every other day in many instances. However, and let me stress this very important point; it is necessary that you at least let your fellow worker know that you might have hurt your back or your knee or whatever part of your body has been potentially injured, and I encourage you to fill out an accident report if you feel as though it may have been an injury to one of the major parts of the body, such as the knee or the back. As an attorney, I usually talk about backs and knees primarily because railroad work is very heavy work and normally when one has an injury to the knee or the back it usually produces the kind of disability or impairment, that makes it very difficult to return to work for the railroad doing the kind of work that you were doing prior to your injury.

In discussing disabilities and injuries, it is important not to forget DOCTORS. It is important to seek the medical attention of a doctor who is a specialist and will take care of the injury that has been suffered. I find that carriers throughout the industry, have the habit of bringing an injured employee, after having filled out an accident report to what is called the company physician. I also find that to often the company physician prescribes a mild sedative or muscle relaxer and returns the employee to what I have termed "light duty" work. I can unequivocally state that I do not believe that there is any form of light duty work working for the railroad, and please remember that the only purpose for allowing an employee to return to what is called light duty is so that a time claim or lost time accident does not have to be reported. Under FRA rules, lost time accidents have to be reported by the railroad every thirty days. Failure to report lost time accidents by the railroad subjects the railroad to potential fines. I discourage the returning of an employee to light duty work until the employee has been completely released by his personal physician to return to the type of work he or she was doing prior to the injury in question. For this reason, I encourage you to call my office anytime to allow me to counsel you as to what you should do at this particular time.

In speaking of recovery, I will now discuss the second portion of a railroad claim, the first being that of proving of a case of liability and or fault, and then after proving that the company was at fault or negligent in causing your injury it is now necessary to prove the extent of your injury and the amount of damages you have suffered. The F.E.L.A. provides that you are entitled to the following:

1. Lost wages from the date of the injury to the time of the settlement and future wages that a man may lose as a result of his disability reduced to what is called the present day value, taking an example, a young thirty year old man who is earning approximately $1,500.00 a month as a trackman, who has sustained a disabling back injury, will be entitled to prove that he has been damaged in the sum of $1,500.00 for a period of 35 years which would be the normal life work expectancy of 65 for a man of his age. That sum, which is approximately $450,000.00 would be discounted to what is called the present day value, or a sum of money if invested, would generate that kind of income over that period of years.

In this day and time with high inflation and unemployment, it is necessary that as an attorney I obtain these large sums of money on behalf of employees because that is what they will support their families with and it will be quite necessary as support for the rest of the injured employees' life. Throughout my years of representing employees, I have found very few men who after having sustained an injury on the job would prefer having been injured, and would have rather returned all the monies that they have received in order gain their health back. Future wages is one of the higher aspects of damages in these cases, but there are also other compensable items such as pain and suffering, past and future, which are allowed to an employee who has been injured and who has to live with the everyday thought of not being able to do regular household chores, being able to play with his or her children, exercising, hobbies, sports, etc. These are the things that we all take for granted and we really do not miss these things and maybe at times do not appreciate these things until we no longer have them. The Federal Employers' Liability Act allows recovery for pain and suffering, aggrevation, disfigurement, and permanent scarring. All of these items are compensable items that are recoverable if proven over and above lost wages, past and future.

Please keep in mind that you have three years from the date of the injury to file a claim in a state or federal court. Failure to file that claim in a state or federal court within that three year period will forever bar your claim. There may be one exception to the three year rule, and that is OCCUPATIONAL DESEASES.

Occupational diseases are those which through a period of time, and exposure to various chemicals or conditions, cause an injury, that when discovered, causes the statute to begin running at that time. An example of this can be a machine operator or a switchman's exposure to noise level which causes deafness or disability, years after the exposure. The F.E.L.A provides that once an individual has knowledge, or should have knowledge that his medical condition was caused by the exposure, then the statute begins to run at that particular time. This could mean that 5, 6, 7, possibly 10 years after the exposure, if it is the kind of injury that disables an employee, he may still have a claim. Another misconception that railroad workers have is when the employee has been injured in one particular area of the body such as the back. Lets say back in 1990 an employee injures his back and here we are in 1998 and the back is re-injured, may that employee still recover? The law provides that an aggrevation of a pre-existing condition or an old injury is as good as a new injury. Always remember that if you have returned to work by recommendation of your own physician and by clearance of the company physician, and you have worked for a sufficient period of time to clear any thought of an injury that is still existing, and then the employee happens to re-injury his back, that employee can again recover for that same back injury.

For those of you with families, please remember that the Federal Employers' Liability Act provides for recovery to your spouse and children for any injury causing death to you. Please download and print this information that I have provided to you and give it to your spouse and make them aware of the fact that they should contact an attorney for information and guidance, and that they should be very cautious about being to quick to settle with the claims agent without first obtaining information from legal counsel. All of the information that I have provided is for your own personal use and the only way in which I can be effective in this business is for you to utilize my services and consulting with my office at any time you feel legal information is necessary. Please be aware that I daily give free legal advice and I would be more than glad to provide you with any advice you deem necessary. In my opinion, it is always necessary when an employee has been injured to contact my office for information that I have discussed, and for guidance concerning what you should do from step to step, without the commitment of feeling as though you have to hire an attorney. I have given free legal information to I would say more than fifty percent (50%) of the people that call my office who never even hire me, but after being guided in the right direction, can go directly to the claims agent and at least get an evaluation of what their case is worth. It does not cost you anything to call my office to obtain this information.

Finally, only a competent and experienced F. E. L. A. attorney is capable of advising an injured railroad worker as to whether or not a settlement is adequate and or fair. No settlement should be accepted without first talking to an experienced competent F. E. L. A. attorney. Should you have any questions, please feel free to call me at my toll free number 1-800-442-1953.