KEEP A RECORD: The railroads often try to avoid their obligations to injured employees. It is therefore important that the injured worker be in a position to get and keep proper information. This information should show if and how the accident was caused, in whole or in part, by the negligence or fault of the railroad, or by other employees of the railroad, or by unsafe working conditions. The worker must also be in a position to prove the nature and extent of his injury and his loss.
The largest money claims are won from the railroads when the claims are actually taken to court. It is therefore important that the injured employee get as much information and evidence as possible. He must be able to prove the cause of the accident and the nature and extent of his injuries, in case a court trial is necessary. An injured employee should get the names of witnesses who have knowledge of the accident or cause of the accident and should remember to jot down the exact time and place of the accident
Under the FELA a railroad workers claim may be brought in a State Court or a Federal Court whichever better suits the employees convenience or purpose. The injured worker is entitled to have a trial by jury. Moreover the employee may bring his claim in these courts in most areas where the railroad runs, or has branch lines, or even where the railroad has no tracks but does have any kind of office, for the transaction of any business. The right of a worker to choose the place and court to bring their claim is an important right. It gives them the chance to sue in courts located in larger cities where usually court and jury awards are more adequate and reasonable than in rural communities. In addition, injured workers of minority groups are more likely to receive a fairer hearing in the bigger cities.
NO STATEMENTS (WRITTEN OR ORAL): Right after an accident, many railroads try to get the injured employee to sign a statement or give a recorded statement. Experience shows that the employees frequently sign a statement or give an oral recorded statement either without reading it or without understanding the “trick wording” with such “statements” are loaded. Such “statements” include weasel-words to prove that the accident was not the fault of the railroad or any of its employees, but rather was the fault of the injured worker. Such “statements” often also include hidden phrases which describes the worker’s injuries as not serious.
Unless your union agreement specifically requires you to do so, do not make any statements either orally or in writing as to how the accident occurred or concerning the nature of the injuries until such time as you have been fully advised by your attorney.
Most union agreements with the railroads do specifically provide that an employee is required to fill out a so-called “Accident” or “Injury” report. If you have any difficulty filling out this form, you should immediately contact your union representative who will either aid you in filling out the form or provide you with other assistance in getting it filled out properly. Many claims have been defeated or sharply reduced in the amount because injured railroaders have given written or oral statements or filled out accident reports which they have not read nor have properly understood. Read the form carefully and think about the questions before answering. If the form asks about defects in equipment or cause of the injury, be sure and specify the appropriate answers. The railroad will raise the failure to answer such questions or answers that there were no defects against the injured worker at the time of trial or during settlement negotiations.
Many times injured workers quickly fill out accident reports because they are told or led to believe that they cannot see a doctor until the forms are complete. DO NOT fill out an accident report under these circumstances. Most union agreements only require the worker to fill out the accident report “when physically able”. Get the medical treatment first and fill out the report when physically able.
BE MINDFUL OF THE “STATUTE OF LIMITATIONS”: In any kind of case, there is a rule of law which specifies exactly how long the injured person or the deceased person’s family has in which to file the case in the appropriate court. This is called the “statute of limitations.” In cases arising under the FELA, the statue of limitations is three (3) years from the date of the injury. This a rule of law which is very harshly interpreted. As a general rule, if you wait longer than three years to file your claim in a court of law, you are not going to be entitled to anything.
Although you do have three years to file, it is usually not a good idea to wait until time is nearly up before contacting an attorney for these important reasons:
(1) The only way your attorney establishes liability on the part of the railroad is through investigation which normally consists of photographs of the area in which you were injured, taking statements from co-workers who witnessed or claimed to have witnessed the accident or have information concerning it, and inspecting or photographing any defective tools or equipment which may have caused your injury. The more time that passes, the more difficult it is to obtain these things; the area may have been changed; the tools or equipment may have been repaired, lost sold or destroyed; and witnesses’ memories may become hazy as to the facts of the occurrence.
(2) The longer you wait to file your case the longer it will be before your case will be settled or tried. Therefore, it will be a longer time before you receive the money you are entitled to. You are losing the use of the money, interest on the money and, depending upon the state of the economy, the money may be worth less in the future than it is now.
KNOW WHAT YOU ARE ENTITLED TO: When an injured railroader has established his claim by showing that the accident was caused by the railroad, in whole or in part, the next question is how much is the worker entitled to? This answer depends on the nature of the injury and upon certain other facts; and, of course, the more serious and more permanent an injury is, the more money the worker will recover under the Federal Employers’ Liability Act. In an injury case, the railroad worker is entitled to an award for each of the following elements of damages proved by the evidence. As opposed to things like lost wages and medical bills, you will notice that some of the elements of damages are “intangible” or things that do not have a definite dollar value, like pain and suffering. It is difficult, if not impossible, to place an exact dollar amount on the value of the loss of a limb or an hour of pain and suffering, but under our legal system the only way in which an injured person can be compensated for such a loss is monetarily. This is why your right to a trial by jury is so important; a jury of people just like you determine the full value of your losses based on the evidence. As you will see, the full value differs greatly from “compensation” that the railroad will attempt to confine your recovery.
(1) The nature, extent and duration of the injury. This means that you are entitled to a money damages award for the severity of the injury. That is, how serious and how long lasting the effects of the injury are.
(2) The disability and disfigurement resulting from the injury. Disability is the difference between your condition after an injury as compared to your condition before. Disfigurement is scarring or other type of injury which has changed the appearance of any part of your body.
(3) The aggravation of any pre-existing ailment or condition. This means that, if you have a condition or ailment which predated your accident but which because of the accident, in whole or in part, has been aggravated, you would be entitled to a money award.
An example would be where the injured employee has arthritis to a given area of their body and, because of the injury, the arthritis becomes more painful than it was prior to the accident.
Another example would be where the injured employee injured their back several years ago and then re-injured it. The injured employee is entitled to recover for the extent of damage caused to the back by the second injury. Just because the railroad may have settled the earlier back injury does not mean the worker cannot recover for the second one.
(4) The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injury. This, in itself, can be a substantial award where the injured employee has suffered a permanent, disabling injury.
(5) Reasonable expenses of medical care, treatment and the other services received and the present cash value of the reasonable expenses of medical care and treatment reasonably certain to be received in the future. This means that the injured employee is entitled to all of their medical bills in the past or any medical bills they will have as a result of their injuries for the rest of their life.
(6) The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future. This means that in addition to actual lost wages, if the injured employee is totally disabled, they would be entitled to present cash value of their wages from the time of trial up to and including such time as they would have retired from the railroad. If the injured employee is not totally disabled, they are entitled to the present cash value of the difference between the wages they will earn in the future and the wages they would have earned in the future but for the injury and partial disability.
In the unfortunate event of the death of a railroad worker, the wife and children or, in the event of the death of a single railroad worker-their next of kin, are entitled to an award for each of the following elements of damages proved by the evidence:
(1) The pain and suffering experienced prior to death. This means that if the decedent suffered pain and suffering because of their injuries before death, then an award of damages must be made to include an amount that would be fair and reasonable compensation for such pain and suffering.
(2) Reasonable expenses of medical care, treatment and services received. This means that the survivors are entitled to payment for all of the medical bills prior to death.
(3) The value of any money loss suffered by the survivors and any money loss reasonably certain to be suffered in the future by reason of the death of the railroad worker. This means the present cash value of all benefits contributed to each survivor including money, goods and services. Consideration must be given to what the deceased worker was earning and what they likely would have earned in the future, in view of their earning capacity, their age and life expectancy at the time of death. This also includes an amount to compensate for the money value of any loss of care, attention, instruction, training, advice and guidance they would have been likely to give to their minor children.
(4) Money loss from the Railroad Retirement Board. This entitles the survivors to recover any Railroad Retirement Board benefits had the decedent worked out their normal life expectancy until retirement.