Railroaders work hard, and most work hard to
work safe. Nevertheless, railroad work is dangerous
work and things that cause injury can and do
happen. Those things happen suddenly and without
warning when they happen, giving no time to
read up on what to do or what not to do in those
first crucial minutes and hours after being
hurt on the railroad. It's smart to be prepared.
Having represented hundreds and hundreds of
injured railroad workers and answered questions
from hundreds and hundreds more at union meetings
and over the phone, we know the questions that
are on the minds of railroad workers. More importantly,
we know the answers to those questions. Here
we offer some of the "Frequently Asked
Questions" we hear, with answers, as a
primer of sorts on what a railroader should
do when injured on the railroad, as well as
some other issues railroaders might find important.
Frequently Asked Questions concerning…
Cumulative Trauma Injuries
Fees and case expense if represented by the Hubbell Law Firm
Free consultation by the Hubbell Law Firm
Pay from the railroad while off work because of injury
Statute of limitations time periods under the Federal Employers’ Liability Act
The do’s and don’ts when hurt on the job
The law covering injured railroad workers (FELA)
What happens when an injured railroader can’t go back to the railroad
What the worker’s family should do if the worker is killed on the job
What to do if hurt on the job and don’t file a PIR, but continue to have injury-related problems
Whether a worker can be represented by a lawyer at a railroad investigation
Whether the railroad can fire a worker for a completing a PIR
Whether to complete a Personal Injury Report (PIR)
Whether to deal with the claim agent or hire a lawyer
Whether to give a statement
Whether workers have to use the doctor the railroad sent them to
Who is responsible for medical bills after a work-related injury
Who to report the injury to
I've worked on the railroad for a lot of years. I've not had any specific injury that I can recall, but I started having some pain in my knees some months back. The pain is getting worse, and it's started to interfere with my work. Now my doctor says I have arthritis in my knees so bad I need to have my knees replaced. I just can't go on. What can I do?
While you cannot recall any specific injury to your knees, your knees can. True, they can't recall a specific "major" or "macro" injury, what they can recall is not just dozens and dozens, but hundreds and hundreds going into thousands and thousands of "minor" or "micro" injuries. Those "micro" injuries occurred as a result of the repeated trauma of walking on uneven ballast, getting on and off moving equipment, being exposed to sustained vibration of locomotives or track equipment, using poorly designed equipment, or any of a number of other ergonomically or mechanically unsound and improper practices unfortunately common to railroad work. The "micro" injuries mount up in the knees (or elsewhere in the body, such as in the hips, ankles, shoulders, elbows, or wrists, or the back or neck) in what is termed "cumulative trauma" until, ultimately, there comes the classic "straw that broke the camel's back" with osteoarthritis, spondylosis, spinal stenosis or any of many inflammatory or other chronic processes as a result of cumulative trauma.
Railroad work is hard work, and over the years, railroaders accepted the daily pounding to their joints, bones and muscles as part of the job, not knowing, or even thinking they were being injured through cumulative trauma from the pounding. The railroads knew. For years and years, they knew. Yet, though knowing of cumulative trauma risks and realities, the railroads said nothing, did nothing. Now, railworkers are finding themselves with arthritic, worn out knees, or other joints, and are wondering why and what to do.
Under FELA, railroad workers with cumulative trauma injuries are entitled to compensation for damages when the railroad is at fault just as when they have specific trauma injuries. Railroad workers who suspect they may have an injury caused by cumulative trauma should contact a lawyer experienced not only in railroad injury cases under FELA, but cumulative trauma cases. The attorneys of the Hubbell Law Firm have pursued and successfully resolved cumulative trauma claims for a great number of railroaders in a variety of crafts. If you have questions not included in FELA FAQs, just give us a call or e-mail with the question(s), we will give you the information you need.
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If I hire the Hubbell Law Firm to represent me in my FELA claim, what will it cost me
In one word, “nothing.” It is Hubbell Law Firm policy to advance all expenses for the investigation and prosecution of the claim. Our fee is what is called a “contingency fee.” What that means is that we are paid a percentage of the settlement amount or jury award if we win the case for the client. At the conclusion of the case, the client may be responsible for costs or expenses advanced by the firm. With our policy on expenses and fees, any injured railroader who has a meritorious claim can have quality legal representation and access to the courts, and in turn, the opportunity to be compensated for his or her injuries.
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How much do you charge if I call for advice about my injury claim?
The Hubbell Law Firm is honored to advise any railroader of his or her rights under FELA free of charge and free of obligation. We will discuss and explore with you the history and facts of the injury, including what caused the injury, the nature and severity of the injury, any past similar injuries, any medical or surgical treatment, and your ability or inability to work, along with any other facts or issues necessary to evaluate the merits of your potential claim and advise of your rights and how best to proceed. Again, this is done at no cost and no obligation. Even the call is free, so all you are out is your time. That investment of a short time could make all the difference in the world for a long time, perhaps the rest of your life.
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Will the railroad pay me while I’m off work because of an injury?
Your railroad employer may be one of the many that offers income to its injured employees via light duty, or programs that have various names from railroad to railroad and time to time, but amount to “wage continuation.” With the latter, that is, wage continuation, the railroad will pay you just as if you were working, except that the amount is generally less than you would earn if you were actually working. With light duty, you mark up for work and just sit around or perhaps perform menial tasks within the framework of restrictions that may have been set by your doctor. Either program is usually available for only a limited period of time. The programs may appear attractive, considering the alternatives, but it is important for you to know that there are usually strings attached to the programs. For instance, you will almost certainly be required to give a statement to the claim agent as a condition for wage continuation. Also, you will likely be asked to sign a release authorizing the railroad to get records from any doctor who has treated you, present and past, and any hospital where you have received treatment, present and past. Further, the railroad may as a condition of wage continuation, require you to see as many of its doctors as it wants. The railroad will want to use any money you receive on light duty or wage continuation as a credit or offset against any money they may pay later in settlement of your claim. You may have to agree not to earn monthly credits toward retirement for the months you receive wage continuation. In closing, one small, but irritating point. You do not have to pay income taxes on money you receive in settlement of a FELA claim. Yet, you do pay income taxes on money you receive in light duty or wage continuation, which the railroad will use as a credit or offset against your settlement. The money of those taxes is just lost from you.
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What is meant by statute of limitations?
A statute of limitations is a statute or law setting a time limit on legal action. Such laws specify the time period during which legal action must be commenced by filing the proper documents in the appropriate court as a lawsuit. For cases arising under the Federal Employers' Act with a date-specific incident, the statute of limitations time period is three (3) years from the date of injury. This means that the papers necessary to initiate a lawsuit must be filed in the appropriate court within three (3) years of the date the injury occurred. Failing to file the lawsuit in the statutory time period may result in the claim for the injury being barred forever. For cases of occupational illness or injury, such as cumulative trauma, repetitive stress or hearing loss, or exposure to toxic substances - cases where the exact date of injury cannot be identified, the statute of limitations time period is three (3) years and runs from the date the worker knows, or should have known in the exercise of ordinary care, that he or she has an injury, illness or impairment and the probable cause of that injury, illness or impairment is his or her railroad work.
A few words of warning: Statutes of limitation are unforgiving, and generally, no matter how badly you are hurt, no matter how valid your reasons may seem, if you wait beyond the three (3) year statute of limitations to file your lawsuit in FELA cases, you will have waited too long and lost your right to sue.
A few more words of warning: Sometimes railroaders are hurt on the job as a result of the negligence or fault of a third party, that is, someone or something other than the railroad or a railroad employee. Under those circumstances, the injury might not fall under the provisions of the Federal Employers' Liability Act, in which case another type of law, such as product liability or general negligence laws, might apply to the injury. The statute of limitations time periods in those laws could be the same as the FELA statute of limitations, but on the other hand, could be quite different. Claims against third parties could, and oftentimes do, have one- or two-year statute of limitations time periods. In some types of cases, notices must be filed and those time limits may be measured in months, not years.
The need for advice concerning statutes of limitation is an obvious good reason for injured railroad workers to consult an attorney experienced in handling railroad injury cases soon after an injury. Another good reason for not only consulting an attorney soon after an injury, but hiring an attorney if the case so warrants, has to do with making sure the playing field is level and the “trail” is not cold.
Almost immediately after a railroader is injured, the railroad has its team of professionals start its investigation of the case. The investigation by the railroad would likely include such things as taking photographs of the scene, taking statements of witnesses, and inspecting and photographing any defective tools, equipment or cars involved in the incident, and confiscating whatever they can for further tests and inspection. The investigation by your attorney, as necessary to build your case, would include essentially the same things. Clearly, the more time that passes before that investigation starts, the more your attorney and in turn, you and your case will be put at a disadvantage – the scene may change; defective tools or other equipment or cars may be repaired, altered, lost, sold or even destroyed; and witnesses may be impossible to locate or may have difficulty remembering what happened.
The quality of your future may hang in the balance. If you become injured at work on the railroad, consult an attorney experienced in representing injured railroad workers, learn the applicable statutes of limitation, and if your case warrants legal representation, by all means, get representation and get it early.
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What are the DO’s and DON’Ts if I get hurt at work on the railroad?
DO get the names and contact information of all persons who witnessed the injury and all persons in the crew or gang you were working with at the time you were hurt.
DO notify your local chairman or general chairman immediately, or just as soon as possible.
DO get medical treatment immediately, or as appropriate, and in any case, DO see a doctor of your choosing, a doctor who will act in your best interests, not the interests of the railroad.
DO complete a Personal Injury Report or other report of injury or accident "required" by your employer and union agreement. Be sure to keep a copy of the report.
DON'T allow your supervisor or any other railroad official to complete any part of the report for you or tell you what to write in the report. They will be watching out for the railroad's interests, not yours.
DON'T sign any release of medical records to your employer until you have spoken with your union representative or an attorney experienced with claims under the Federal Employers' Liability Act (FELA).
DON'T give a written or recorded statement to your railroad supervisor, claim agent or other personnel. In time it may be necessary, even advisable, to give a statement, but NOT until you have had counsel from an experienced FELA attorney.
DON'T admit to any blame on your part. It's impossible to know who or what was at fault until all facts and conditions become known.
DON'T allow any railroad official to accompany you into the examination or treatment room at a hospital, clinic or doctor's office.
DON'T allow your doctor or other healthcare professional to talk with your supervisor or anyone else from the railroad. The railroad is not the patient, you are. You have rights to medical privacy that are guaranteed by law. Why so secretive? It's not a matter of secrecy, it's a matter of the best interests of you, the injured worker. Railroad officials have been known to discourage doctors in strong terms from writing a prescription for medications for an injured worker or writing an excuse for time off from work. Some have even been known to try to influence the treatment plan, asking the doctor, for example, if the injured worker could get by with just an elastic wrap rather than a plaster cast. Such officials have more concern about their “safety record” than the well-being of the injured worker.
DO contact an experienced FELA attorney to discuss your injury. The Hubbell Law Firm and most other counsel designated by unions will advise injured railroad workers of their rights at no charge.
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What law covers me as a railroader if I get hurt on the job?
Good question. There is great confusion about this issue. Most people think in terms of workers’compensation whenever a working man or woman is hurt on the job. While that may be the case generally, it is not the case if you are a railroad worker. Worker compensation laws are state laws and vary greatly from state to state. Because railroads are engaged in interstate commerce, injured railroad workers are covered by a federal law that is the same in all the states. That law, the Federal Employers’ Liability Act, or the FELA, was passed by Congress in 1908, with intent to assure railroad employees a safe place to work and provide them with special protection if injured on the job as a result of the railroad’s failure to provide a safe place to work, safe equipment or safe work methods, etc. Under FELA, injured employees can seek compensation for damages, including past and future wage losses, other financial or economic losses, medical expenses, and pain and suffering. If a railroad worker is killed on the job, his or her survivors can seek compensation for damages they have suffered as a result of the death.
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What happens to me if I get hurt on the railroad and can't do railroad work any longer?
It is devastating anytime an injury occurs, taking away your livelihood and throwing your life into upheaval, your future into uncertainty. Nothing can make everything right with a disabling injury, but with FELA and quality legal representation, there is hope for your future. Under FELA, the injured worker is entitled to past and future lost earnings and other damages. If the worker is not totally disabled, vocational services are usually available to identify transferable skills and place the worker in another job using those skills. In the absence of transferable skills, testing is done to identify areas of interest and ability, so the disabled worker can receive training into another career. If the disabled worker has 240 or more months of railroad service and circumstances such as age and absence of transferable skills make vocational rehabilitation impossible or impractical, he or she is eligible for an occupational disability annuity from the Railroad Retirement Board.
At the Hubbell Law Firm, we take pride in assisting our clients through the bureaucratic maze they must sometimes navigate to obtain the various benefits they have coming after a disabling injury at work.
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If I'm killed at work, what will happen to my family?
You and your family can take comfort in knowing that the Federal Employers’ Liability Act has provisions to protect your family should the railroad be responsible for an injury leading to your death. It is not pleasant to talk about such things, but your spouse has a need to know what those provisions are, and what she or he should do in the unfortunate event of your death at work. Under FELA, in case of death caused in whole or in part by the railroad’s negligence, your family members may be entitled to compensation for their financial losses, loss of services of the deceased, all medical bills incurred by the decedent prior to death and any conscious pain and suffering of the deceased.
Keep in mind these words from a U.S. Supreme Court decision dated April 20, 1964:
“Injured workers or their families often fell prey on the one hand to persuasive claim adjusters eager to gain a quick and cheap settlement for their railroad employers, or on the other hand, to lawyers either not competent to try these lawsuits against the able and experienced railroad counsel or too willing to settle a case for a quick dollar.”
From those words and your own knowledge as to how difficult it is for a widow or widower to function after the tragic loss of a loved one, you can see the importance of:
- letting your spouse know now what her or his rights and entitlements are under FELA and railroad retirement;
- keeping in a secure, easily accessible place, a list containing the names and contact information of union representatives and attorneys who have shown themselves to be skilled and ethical in handling the claims under the Federal Employers’ Liability Act; and
- having your spouse know to immediately contact the attorney on the list to be advised of her or his rights and have the merits of any potential claim evaluated.
Many local unions host seminars put on by representatives from the Railroad Retirement Board and FELA law firms on what to do following the loss of a loved one. The Hubbell Law Firm is both pleased and honored to present at such seminars. Also, we are always willing to answer questions by telephone or e-mail from railroad workers or their families on this important subject.
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If I had an injury at work, but didn't report it at the time, what should I do now if I’m still having problems?
This is a calamity. Railroad rules require the timely filing of a PI Report when a worker gets hurt. On the other hand, railroad officials discourage workers from filing an injury report, even to the point of threatening to fire them if they do. The railroad cannot fire a worker for filing a personal injury report, but can, and do, for filing a late report. In your situation, if you file a PI Report at a time beyond what the rules of your railroad require, the railroad may well fire you on the grounds of a late PI Report. Still, if your injury appears to be at all severe, and especially, if it appears to be compromising your ability to work safely and threatening your work future, you may want to file a late Personal Injury Report, even though facing the risk, or even the certainty, of being fired. It is critical and urgent that you contact both your local union representative and an attorney experienced in representing injured railroad workers for advice on how you should proceed.
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If the railroad calls an investigation on me and I've hired you as my lawyer, can you represent me in the investigation?
No, only your union can represent you in an investigation. However, we will gladly work with your union representative and you in preparing for the investigation.
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Will the railroad fire me for filing a Personal Injury Report? How about for hiring a lawyer?
The railroad may fire you, but not for filing a personal injury report for a legitimate injury, if done in a timely manner. However, they can and will fire you if you do not complete a report timely to the injury and then turn in a late PI Report.
As above, the railroad may fire you, but not for hiring a lawyer. Keep in mind, the right of injured railroaders to sue their employers is guaranteed by federal law. That same law provides for punishment and remedial measures to discourage railroads from any such misconduct.
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Do I have to fill out a Personal Injury Report?
Simply stated – yes, if the railroad rules and/or your union agreement requires you to do so, as most do. You should complete the Personal Injury Report, which may be called by different names on different railroads, and present it to a railroad official. Be sure to keep a copy of the report. Should you have difficulty in filling out the report, contact your union representative who will either assist in completing the form or arrange for you to have the assistance you need to understand the form and fill it out properly. You will likely be agitated and nervous when completing the report, and probably in some degree of pain. If your pain is too great for you to concentrate on the form, you should ask for medical attention and ask to hold off on completing the form. Or if you in being treated are given any medication that might affect your ability to think clearly, you should also ask to hold off on completing the form. When you do complete the form, read the questions carefully and think about each one before writing your answer. It could cost you later in your claim if you have filled out a report that you did not read or properly understand. In completing the report, describe, as possible, any unsafe cars, tools, equipment, worksite conditions, or work methods or procedures contributing to your injury. Railroads have differing time limits for filing these reports, and you should be sure to file your report timely to what your employer requires, if your injuries permit. Be sure your immediate supervisor knows about your injury. If you fail to file a Personal Injury Report as required by railroad rules, you may well face greater difficulty in pursuing a claim for the injury at a later time.
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The Claim Agent says he'd like to deal with me on my claim. He says he'll be fair. Should I deal with the claim agent or hire a lawyer?
That is an important question, the answer to which depends on a number of factors. If the claim does not involve severe injury, extensive loss of earnings, and lengthy or permanent disability, and is free of complications and potentially negative implications for the future, a lawyer may not need to be hired in most such cases. The reasoning here is that a lawyer would not be able to improve the position of the injured worker significantly and the final outcome would be essentially the same with or without legal representation. On the other hand, for railroaders who have severe or relatively severe injuries, and whose claims involve lengthy periods of disability or permanent disability and significant loss of earnings, and may have difficulties, such as less than obvious or questionable liability or past medical involvements, and probable negative implications for the future, their best interests will be served by hiring a lawyer. Here, the reasoning is that a claim agent would not pay what the claim is worth without litigation or at least, the threat of litigation, and that a lawyer would be able to get greater compensation than the worker could get on his/her own, even after legal fees.
The Hubbell Law Firm, and many other quality FELA firms will, without charge or obligation, advise you of your rights under FELA, discuss the facts and merits of your claim and give our best opinion as to whether your interests would be best served by hiring a lawyer or dealing with the claim agent directly.
Why not just deal with the claim agent in all cases? Keep in mind, claim agents work for the railroad, not you. They are able, skilled and highly trained professionals who know their jobs and do them well. That job is to maximize the railroad's bottom line as much as possible by paying as little as possible in each personal injury claim. The job security for a claim agent comes down to job performance. Choosing between his or her job and you, what do you think the choice will be?
A few more words on the subject of dealing with claim agents:
"Injured workers or their families often fell prey on the one hand to persuasive claim adjusters eager to gain a quick and cheap settlement for their railroad employers, or on the other to lawyers either not competent to try these lawsuits against the able and experienced railroad counsel or too willing to settle a case for a quick dollar."
Those words say it all. And those words come not from lawyers advertising for business, but the U.S. Supreme Court in an opinion in 1964. The words also call attention to the importance for injured railroad workers and their families of hiring a lawyer that is experienced and skilled in representing clients under the Federal Employers' Liability Act (FELA).
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Am I required to give a statement to the claim agent?
No, you are not required to give a statement of any kind. The only requirement you have as an injured railroader is to complete a Personal Injury Report. Regardless, the claim agent may well try to get you to sign a statement or give a recorded statement. Don’t do it, unless your union agreement specifically requires that you do so until you have been advised by your union representative or a lawyer experienced in handling cases for injured railroad workers. The reasons are many. You are proficient in what you do on the railroad. Well, like you, claim agents are proficient in what they do, including the taking of statements. Asking questions that are leading or perhaps even misleading, or questions that contain subtle or even “trick wording” are strategies claim agents may use to shape the statement to prove in your own words that the injury was unavoidable, or that it was your fault and not the fault of the railroad or any of its other employees. The claim agent may even make it appear that he is trying to help exonerate you of any blame for the injury, so that you will not be disciplined by the railroad, a common fear of many railroaders right after an incident at work. Phrases like, “this was just one of those things that happen;” “no one could see this coming;” or “ there wasn’t anything to be done to avoid this accident,” might seem to make you blameless, but they are also making the railroad appear blameless. This will help the railroad defeat your claim or certainly, lower its value. By giving a statement you could well become your own worst enemy. Don't fall into that trap.
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If I’m hurt on the job, do I have to use the doctor the railroad sends me to?
You have the right to see and be treated by a doctor or doctors of your choosing. You are not required to use any doctor the railroad would choose to send you to, except for return-to-work physical examinations, or periodic or re-employment physical examinations as required in some union agreements. While railroads no longer have “company doctors” in the classic sense of the term, they carefully choose the doctors they use and build financial ties with them such that the doctor may look out for the interests of the railroad, as opposed to the interests of the railroad worker. You would be wise to seek treatment from a doctor who will be fair and honest with you, and who will put your interests above all others.
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Who is responsible for my medical bills if I get hurt at work?
As a railroad employee, you have medical insurance or health care plans to pay medical expenses anytime you are hurt on the job. This is your insurance or health care plan, and no permission or approval from the railroad is necessary for you to receive care. Many doctors and hospitals are accustomed to working with work comp and may mistakenly think they must have the railroad’s approval before treating you. Should you face this confusion when trying to get treatment for a railroad injury, you should feel free to have the doctor or hospital call our office. We will gladly explain the situation to the doctor or hospital. Or you can visit the Firm Library and download the document, “Information for Medical Providers.” Presenting it to the doctor or hospital should eliminate any problem.
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Who do I report my injury to?
Report your injury to your immediate railroad supervisor. If your immediate supervisor is not available, work your way up through the chain of command. Tell your co-workers about your injury. This helps to create a record of the injury. Point out any unsafe cars, tools, equipment, worksite conditions, or work methods or procedures that you believe may have contributed to the injury. Also contact your local union representative, and tell him or her about your injury. As soon as practicable, contact an attorney experienced in FELA claims for advice as to your rights. It would be good to leave the name and phone number of such an attorney in a safe, but readily accessible place for your spouse or other family member in the event you would be unable to make the call on your own.
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The Hubbell Law Firm –
We know FELA!
