FEDERAL EMPLOYER'S LIABILITY ACT (FELA)
- EMPLOYER'S DUTIES
- SAFETY APPLIANCE ACT / BOILER INSPECTION ACT
- KEEP A RECORD
- STATUTE OF LIMITATIONS
- ASBESTOS RELATED LUNG DISEASE
- ACCIDENT REPORTS
- DESIGNATED COUNSEL
In 1908 Congress passed a comprehensive statute directed at protecting rights of injured railroad workers known as the Federal Employers' Liability Act or FELA. Congress passed the law in response to appalling accident rates in the rail industry and to promote uniform rules regarding railroad equipment and practices.
FELA applies to all railroads and their employees. As stated above, the Act was passed because the railroads failed to develop safety measures to protect their employees. FELA provides in part that:
"Every common carrier by railroad while engaging in commerce shall be liable in damage to any person suffering injury while he is employed by such carrier in such commerce, or, in case of death of such employee,…for such injury or death resulting in whole or part from negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed or other equipment."
FELA is the exclusive remedy for most claims an employee may have against his employer. A FELA case may be brought in either federal or state court.
FELA is not worker’s compensation. It does not provide for automatic recovery. It is important that doctors and their staff understand that railroad workers are not covered under any applicable worker’s compensation statute. Under FELA you are entitled to collect a claim if there is evidence that the injury was caused, in whole or part, by the fault or negligence of the railroad, including the failure of the railroad to provide a reasonable safe place to work. The FELA claimant must be able to prove fault on the part of the employer.
FELA applies to railroads and their employees. The Act was passed because the railroads failed to develop safety measures to protect their employees. If you are injured while working for a railroad, you must show that the carrier was negligent, or at fault, in some manner. As stated before, it is the duty of the carrier to provide a safe place to work for its employees. Normally, the railroad cannot transfer their duty in this regard. In other words, the carrier must be sure that you are protected at all times while in their employ, even when working at an industry, or other railroad. Negligence requires proof that:
- The railroad has been guilty of a lack of due care under the circumstance, or
- The railroad has failed to do what a reasonable and prudent person would have done under the circumstances, or
- The railroad has done what a person under the existing circumstance would not have done.
The carrier must provide safe tools and equipment. They must provide proper training for the use of the tools and/or equipment, as well as any work involved in the everyday operation of a railroad. Additionally, past practice of an unsafe work method is not an excuse for an employee's injury. If a "safer" way to do a job was available, the carrier may be liable. It is necessary for an injured employee to prove that the carrier was somewhat at fault to have a valid claim. If you are unsure as to the validity of your claim, please contact an attorney, designated by your union, as soon as possible, so that the attorney may discuss your situation with you. Every injury has a unique set of circumstances which may or may not be able to be proved as negligence.
Employers covered by the FELA have a duty to provide a safe place for you to work. This duty is absolute. The definition of "safe" may need to be decided by a jury. The mere fact that an accident occurred does not mean the railroad failed to provide a safe place to work. It is extremely important for any employee involved in an accident to report the accident immediately. Additionally, it is equally important to identify negligence and/or defective tools or equipment that contributed to the accident and/or in jury on an appropriate accident report form provided by the carrier. Information gathering is extremely important. From the time the accident/injury is reported, the carrier will begin to build its case against you.
SAFETY APPLIANCE ACT / BOILER INSPECTION ACT
The Safety Appliance Act forces the carriers to continually provide safe and proper appliances and couplers on in-service locomotives and cars. Additionally, grab irons, steps, handbrakes, ladders and running brakes fall under this Act. The carriers are duty bound to make sure that these appliances are in working condition. If any of these appliances are found to be defective, it is not necessary for the injured employee to prove negligence.
The Boiler Inspection Act requires that the locomotive, locomotive boiler, tender and all parts of the locomotive be in working condition as well. Again, as in The Safety Appliance Act, if any of this equipment is found to be defective, it is not necessary for the injured person to prove negligence to recover from the carrier. In general, these Acts only cover certain crafts. Any craft which is to repair the defect once it has been found, is not normally protected by the Acts.
KEEP A RECORD
The railroads often try to avoid their obligation to injured employees. The employee must be in a position to get, and to keep, proper information. This information should consist of facts about the injury. The injured party should also be able to prove the nature and extent of his injury and loss. It is imperative to collect as much of this type of information as possible, as information most often turns into evidence. Know who was present at the site of the injury. Notice if there are any irregularities in the area where the injury occurred, or with provided tools or equipment. Write down the time and date of the injury. Be sure to get witnesses’ names and phone numbers. As soon as possible, try to recreate the accident in your mind and ask questions of yourself regarding the injury. You may try to remember if you had been sufficiently trained for the duty you were performing. Did you have enough help to accomplish the task? Were your tools and supplies in working order? Was the footing safe? Had there been any past complaints to supervisors regarding the way in which you were told to accomplish a task? Remember, the burden of proof falls upon you, the employee. It is necessary for the injured party to at least show that part of the injury was caused by the carrier’s negligence in order to recover from the carrier. Before completing the carrier’s accident report, try to have some, if not all, of these things in mind.
STATUTE OF LIMITATIONS
The statute of limitations for an injury covered under the FELA is three years from the date of the injury. For occupational diseases, when there is uncertainty as to the date of the injury, the statute may begin when the effect of the disease is discovered, and it is related to the job experience. Do not wait until your three years statute has almost run before you process your claim. Remember, the carrier begins to build its case against you from the time your injury is reported. Therefore, seek advice of a union designated attorney as soon as possible.
ASBESTOS RELATED LUNG DISEASE
As mentioned above, the statute of limitations for occupational diseases such as Asbestos Related Lung Disease may begin when the effect of the disease is discovered. The FELA provides a legal remedy for such disease. A large portion of the work force employed during the 1950s and 1960s are just now beginning to feel the effects of asbestos. Asbestos can cause a variety of serious diseases including breathing problems and cancer. Jones Granger was the first FELA firm to begin a program that involved the railroad trade unions, in 1980. We continue to be unparalleled in our approach to the problem of asbestos in the railroad industry.
Any worker who is involved in an accident or injury should immediately report his injury. When filling out an accident report, care must be taken to be extremely accurate. When possible, please request that your union representative be present when completing and signing such forms. The injured worker should not allow the railroad claim agent or supervisors, by promise or pressure, to complete the accident report for him or her. The injured worker should identify negligence and/or defective tools or equipment on the report. If the condition of tools and/or equipment is unknown, you should note this on the report as well.
The claim agent and other railroad officers or supervisors are employees of the carrier who have been trained to protect the company to the greatest extent possible against FELA claims. They will ask that you give them a written or oral statement about your injury. Never give a statement of any kind without first requesting both contractual (union representation) and legal (union designated attorney) counsel. An oral statement should not be given without first discussing the statement with your union’s designated counsel. If ordered to give either a written or oral statement under the threat of discipline, you should do so. However, the statement should be given under protest and you should indicate you are doing so to avoid possible discipline. When giving a statement, remember that the carrier representative(s) are not acting in your best possible interest, so be governed accordingly.
An injured worker who needs medical attention needs to see his or her own doctor. Most often, the carrier will say that they will not be responsible for payment unless you see their doctor. This, of course, is not true. If an injured worker does not have a family doctor, it is preferable that he/she sees a doctor who is not associated with, or paid by, the railroad. Every employee should be allowed to seek out the best medical care available. If this opportunity is being denied, the injured party should suspect that the carrier is attempting to reduce its exposure. Additionally, any improper medical care received may adversely affect your recovery from the carrier.
Railroad workers are covered by Railroad Retirement Sickness Benefits in the event of injury, or death. Injured employees must complete their claim forms in a timely manner, or risk losing their benefits. Many employees are also covered under supplemental benefits due to sickness or injury. You should contact your local union representative, or general chairman, to determine what benefits are available. Injured railroad workers have an absolute right to pursue an action against the railroad for injuries sustained under FELA and to obtain the services of competent, caring attorneys. The right counsel will be able to assist the injured worker and his family in receiving their maximum benefits during the time that the employee cannot work.
Any injured worker has an absolute right to pursue a claim against the railroad for injuries sustained under FELA, and to retain the services of an attorney. The right counsel will be able to assist the injured worker and his family in receiving their maximum benefits during the time that they are injured and cannot work. Designated counsel are lawyers chosen by your Union who are specialists in handling FELA clams and are fully experienced in dealing with the railroad claim agents and railroad lawyers.
Designated counsel will ensure that the injured employee and their family will receive the benefits to which they are entitled. They are very familiar with the rail industry and understand the complexities of your job. Proper evaluation of a claim requires a complete investigation under the direction of an experienced FELA lawyer with knowledge of the rail industry and the railroad law. Non-designated lawyers do not have any obligation to your Union and do not answer to your Union. Great care should be used when selecting your attorney. Jones & Granger is approved and appointed by all railroad trade labor unions. We want to see that the injured employee and his family obtain the best medical care available so that, if possible, the employee can resume his or her place in the work force as a functioning and capable individual. We want you and your family to receive the fair compensation due you from the railroad. For additional information and free consultation, contact us toll free at 1-800-231-3359.
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