Federal Employers Liability Act

The Naumes Law Group has represented clients in the following geographic regions:

THE BASIC FEDERAL EMPLOYERS’ LIABILITY ACT: WHAT IS COVERED

As stated above, the Federal Employer’s Liability Act is a series of federal laws which give railroad employees the right to recover damages from their employer when they are injured during the course of their employment. FELA was passed by Congress in 1908 in order to improve safety on the railroads and to provide for the first time an opportunity for recovery of substantial damages by railroad workers or by their families.

Under its provisions, all railroad common carriers and their employees who are engaged in interstate commerce are subject to the requirements of the Act. Recovery of damages is allowed for injuries caused by:

• Negligence of the railroad, its officers, agents, or employees;
• Failure of the railroad to provide safe tools, equipment, appliances, or a safe place to work;
• Violation of the Safety Appliance Act, Boiler Inspection Act, or Power Brake Law (discussed below).

Three factors must be present for any injured railroad worker to collect damages against his employer under the FELA. First, the employee must be injured while in the course of his employment. This does not mean he must be on railroad property, or actually working, at the time that he is injured. Generally, under the law, the employee is protected while he is at any place off or on railroad property where he has been sent by his employer.

Generally, an employee is covered from the time he or she steps onto railroad property until signing out and for a reasonable period of time thereafter. The second requirement is that the railroad must be engaged in interstate commerce. Today, almost all of the duties of all employees of interstate railroads are in the furtherance of interstate commerce and, as a result, this issue is rarely raised.

The third requirement is that negligence on the part of the railroad played some part in causing the employee’s injury.

SAFETY APPLIANCE ACTS: HOW AND WHEN THEY APPLY

The Safety Appliance Acts impose on railroads an absolute and continuing duty to provide and keep in proper and safe condition certain safety appliances, such as automatic couplers on its cars and engines, grab irons and sill steps, handbrakes, ladders and running boards. A railroad is absolutely liable for any injury that results from the slightest failure of any of these safety appliances.

Under this section, the injured employee does not have to prove negligence and the employee’s contributory negligence is not a defense. However, the Safety Appliance Acts only protect certain classes of railroad workers. The injured fireman, brakeman, and conductor on the road and in the switching yard are protected. The car inspector injured in the course of looking for defects in these appliances may be protected. Any craft whose duties are to handle the defective car or engine after the defect in the appliance has been found are not protected by the Safety Appliance Acts, and therefore, must show some evidence of negligence in order to recover.

BOILER INSPECTION ACTS: HOW AND WHEN THEY APPLY

The same duties imposed on the railroad under the Safety Appliance Acts are imposed by the Boiler Inspection Acts with reference to a locomotive, its boiler, tender and all parts and appurtenances thereof. As with the Safety Appliance Acts, shop craft workers who are injured while repairing a defect in a locomotive are not protected by the Boiler Inspection Acts. Also, the employee does not have to prove negligence and the employee’s contributory negligence is not a defense.

NEGLIGENCE AND THE RIGHT TO RECOVER

In addition to the statutes stated above, which impose absolute liability upon a railroad, an injured employee may also recover if his injuries are caused by the negligence of the railroad, its officers, agents, or employees.

Negligence is a legal term which basically means carelessness, or when someone acts unreasonably under certain circumstances. A railroad is negligent, for example, if it fails to provide its employees with a reasonably safe place to work or reasonably safe tools and equipment. It may also be negligent for selecting an improper method of doing work, furnishing insufficient help, or by failing to enforce its safety rules.

An employee’s “contributory negligence” is a defense under this section of the Act. Contributory negligence is another legal term which means that bot the railroad and the employee contributed to the accident. It is important to note that under the FELA, this defense does not completely defeat the employee’s recovery of damages. According to statute, contributory negligence of the employee simply reduces the amount of damages that the employee might otherwise recover. For example, if the jury finds that the employee should be awarded one million dollars ($1,000,000.00) and he was 25 percent negligent in causing the accident, the employee’s damages would be reduced by 25 percent, and the verdict would be for $750,000.00.

WHAT DAMAGES ARE RECOVERABLE UNDER THE FELA?

The potential damages recoverable under the FELA are far greater than those available to any other type of worker. However, since the FELA places the burden upon the injured railroad employee, or the family of the deceased railroad employee, to gather, preserve and present the testimony of witnesses and other types of evidence before there can be any recovery at all, it is apparent that the railroad worker runs a particular risk in his attempt to recover fair and adequate damages for himself and his family.

Typical damages that may be recoverable by an injured railroad worker are:

• All past and future medical expenses necessary for the treatment of his injuries;
• Loss of wages from the date of the accident until he returns to work and/or into the future until the end of his projected work life;
• Pain and physical suffering;
• Mental anxiety, including worry about his ability to do his work.

In cases of serious injury, an accurate and informed appraisal of all past and potential losses and damages cannot be made without the aid of a competent and experienced FELA attorney skilled in negotiation and knowledgeable in assessing medical information and the relationship between disability and earning capacity.

ASBESTOS RELATED DISEASE

Asbestos-containing materials, including insulation, brake and friction products, and gaskets, were widely used for many years in the railroad industry. Neither asbestos manufacturers nor the railroads warned of the hazards of exposure to asbestos dust, and today many workers suffer from asbestos-related disease.

These diseases include asbestosis, a scarring of the lung and/or its lining. This disease is characterized by shortness of breath and other breathing problems and may be present in combination with other conditions, such as those caused by smoking. Asbestos is also associated with cancers of the respiratory and digestive systems.

To determine whether asbestos-related disease is present, a specialist in occupational disease should be consulted. This office maintains a register of such specialists and can provide a referral upon request.

If you suspect that you may have an asbestos-related disease, it is important that you be examined. Early detection is the best medical protection. Furthermore, a three-year limitation exists for claims for asbestos disease. The date you know or should have known of such a disease triggers the start of that time period.

HEARING LOSS

Work-related hearing loss may be caused by a sudden event, such as an explosion or accident, but is most often the result of a prolonged exposure to excessive noise. Such noise can came from various sources, including air hammers, locomotives, compressors, etc. This type of hearing loss, as well as conditions of buzzing in the ear, may be the result of the railroad’s failure to provide a safe place to work. A properly accredited doctor should be consulted if you suspect hearing loss.

STATUTE OF LIMITATIONS: SUIT MUST BE FILED WITHIN 3 YEARS

The injured worker has only three years from the date of his or her accident to file a lawsuit against the railroad in Court. Notifying the Claims Department, filing a claim with the railroad Claims Department, and being the midst of negotiations for settlement with the railroad Claims Department, are not excuses for not filing the lawsuit within three years.

As mentioned earlier, in cases involving an occupational disease, such as asbestosis, the three-year period starts to run when the employee first discovers that he has contracted the disease.

MEDICAL TREATMENT: SEE YOUR OWN DOCTOR

Generally, if a worker needs medical attention, it is best that he see his own doctor. If the worker does not have a family doctor, it is preferable that he see a doctor who is not associated with the railroad.

WHEN TO RETAIN A LAWYER

Even when the injury is such that the employee is able to return to work, it is advisable that the services of a competent FELA attorney be obtained. In some circumstances it would be possible for the railroad employer to return the employee to work while the settlement is pending, only to terminate the employee after settlement. If a railroad employee sustains any significant injury, it is foolhardy not to be represented by an experience FELA attorney.

You should know that FELA and the National Railroad Adjustment Board both hold that neither the injured railroad worker who brings a lawsuit, nor the railroad workers who testify on his behalf, can be subjected to loss of job or other types of reprisal by the railroad. The Act specifically provides that “Whoever by threat, intimidation, order, rule, contract regulation or device whatsoever… or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing such information to a person in interest, shall upon conviction thereof, be punished by a fine of not more than $1,000.00 or imprisonment for not more than one year by both such fine and imprisonment for each offense.”

RELEASES: KNOW WHAT YOU ARE SIGNING

When an injured employee settles a claim with the railroad, he is required to sign a Release before receiving the payment of money. A Release is a final statement between the parties. The injured worker, in accepting the settlement and signing a Release, gives up any and all claims he may have against the railroad arising from that injury. Generally, once a Release is signed, it is final and no further claim can be made even if the injury becomes much more serious than anticipated. Employees should be sure of the extent of their injuries before making a settlement.

WHAT TO DO WHEN YOU ARE INJURED

Keep in mind the following steps outlined below. They are important to preserving your rights!

1. Report the accident as soon as possible, describing the accident briefly and accurately.
2. Do not sign a statement for a Claim Agent or railroad.
3. Make notes while the accident is fresh in your mind. Note how the accident occurred and anything else pertaining to it.
4. Be sure of your rights. Do not rely upon the railroad or its Claim Agents for advice on what your rights are, or how much you are entitled to receive.
5. Do not attend any hearing or investigation without Union representation.
6. Do not attempt to deal directly with the Claims Department without obtaining legal advice or consultation with your Union Representative concerning what is the best procedure to follow to best protect your interests.
7. Obtain the names and addresses of any of the witnesses to the accident and make a note of any rules that have been violated, which give rise to the accident.
8. Keep a record of all the days that you lose and, if possible, the overtime that you would have been able to obtain had you not been injured.
9. Do not hesitate, when in doubt as to what should be to best protect your interests, to contact immediately your Union Representative or an experienced FELA attorney.