Protecting Your Rights Under the FELA

I. WHAT CAN I RECOVER UNDER THE FELA?
Generally speaking, a successful plaintiff under the FELA can win the following sorts of damages:

1. Past lost wages;
2. Wage loss in the future;
3. Past and future Medical expenses; and
4. Past and future Pain, suffering, and mental anguish.

Future lost wages is usually a big  issue with injured workers and a very important element of any FELA case.  It is no secret that long-time railroad workers can have a high salary.  If a work injury takes that salary away, the difference in the workers’ salary before the injury and after the injury is determined and then an estimated work-life is determined to see how much income is potentially lost due to the injury.   If an engineer is making $75,000 per year and is injured and can only perform a $10,000 per year job, he has lost $65,000 per year.  If his work-life expectancy was another 10 years, the loss of income is $650,000 to this worker due to the injury.  Obviously, the higher your salary and longer you have left to work increase the amount of loss you have suffered.

Remember, however, that Federal law provides that any award for future wages must be reduced to present value.   That means an economist must calculate what sum of money paid today would deliver a stream of payments into the future equal to the amount the worker could have earned if he stayed on the job.

Punitive damages are not recoverable in any FELA action and the worker cannot recover for loss of the ability to perform household chores or damage to the marriage.

Death benefits are also available in the worker’s injury results in death.  Under FELA, the surviving widow or husband and children of the employee are called statutory beneficiaries. As in normal estate cases, if the worker does not have a spouse or children, then the beneficiaries include the employee's parents and if no parents, the next of kin dependent of the worker.  A personal representative such as an executor or administrator is entitled to bring an action that the worker would have possessed had he remained alive against the railroad. Under the Wrongful Death Action, damages go to the survivors and are measured by the beneficiaries' loss of financial support as well as a loss of services by the spouse and loss of care, counsel, training and education to the minor children. What is not recoverable, however, are damages such as grief, injured feelings, and loss of society or companionship.

II. CAN I FILE THE CLAIM IN MY HOMETOWN?

The FELA is a federal law, thus, a case can be filed in either federal or state court. There are different aspects of where you can file, but generally, the injured worker has great discretion choosing a court.  An attorney should be able to help you determine which place is most favorable for you to file the claims.  Unfortunately, there are certain areas of our state that do not give the injured worker the sympathy he or she deserves following an injury.

III. HOW LONG DO I HAVE TO FILE A LAWSUIT?

The FELA provides that you have three years from the date of injury to file suit.  (Occupational diseases that take a while to recognize may be able to be filed three years from the date that the condition became active or was discovered.

IV. RAILROAD DEFENSES

The main railroad defense to a FELA action is that of contributory negligence on the part of the worker. Contributory negligence means the injured worker was in some way at fault or negligent and that this action of the railroad employee brought about the injury. In any case that is brought to trial and decided by a jury, the jury will determine how much fault should be assigned to each party, both the injured worker and the Railroad.  The injured worker’s award will be reduced by the percentage of fault assigned

Example: The jury determines that you have damages of $100,000, but they find you to be 10% liable for the accident and the railroad only 90% liable.  You will only recover $90,000.

V. HOW MUCH IS MY CASE WORTH?

One of the most common questions asked of railroad attorneys, or injury attorneys in general is how much is my case worth? We also hear the following: Joe Blow got $3 million for his case, how come I'm only getting $500,000? It is important to remember that your case is not Joe Blow’s case, every case is different and it is almost impossible to value one worker's case by looking at the results of another. The best a lawyer can do is give you a ballpark figure and, even then, the facts of the case may change dramatically.  Eventually, if the case is not settled, your case is worth as much as twelve strangers sitting on a jury believe it is worth.  The lawyer will consider the following factors in evaluating your case:

1. The amount of fault or negligence on behalf of the railroad;
2. The amount of fault or contributory negligence of the railroader;
3. The nature and severity of the injury;
4. The amount of time the worker is disabled;
5. The age of the worker;
6. The education of the worker;
7. The job history of the worker;
8. Any medical history of prior injuries of the worker;
9. The employment record of the worker including salary and years with the railroad; and
10. Negative factors about the injured worker’s legal history.

VI.  SHOULD I SETTLE?

The vast majority of FELA, as well as other cases, settle prior to trial. The main reason most cases settle is the certainty of the outcome when the parties agree, rather than having twelve strangers determine winners and losers.  Remember, while FELA attorneys may give you their thoughts on the value of your case, no one can predict a jury’s views and to take such a risk with a good settlement offer on the table may not end up benefiting the worker.  In addition, the railroad often appeals jury verdicts, dragging out the time before the injured worker is compensated andincreasing the costs to the worker.  So, in such situations, settlement may be recommended.

However, if you have a strong case and the railroad is simply refusing to exercise good faith in settlement negotiations, your attorney can evaluate the risks and likely go forward to trial to ensure that the injured worker has a chance at recovering the damages due him or her. 

V. WHAT CAN I DO IF I’M HURT TO PROTECT MY RIGHTS?

There are many steps a railroader or his family can take to preserve and protect the valuable rights given to a railroader.

First, a railroad worker should try his best to identify the cause of his injury as soon after the injury as possible and document and photograph the cause immediately for his, not the railroads, records.  The injured worker is required to fill out an incident or accident report soon after the accident.  Note any conditions of equipment that may have caused your accident (broken parts, slipper parts, bent parts, malfunctioning parts).  Never admit fault of any kind in your accident report.  Investigations may later show that you had no choice to take the actions you took because of defective parts, etc.  If you experience unconsciousness or lacks of clarity due to medication, you may be able to delay in filling out this form.  Make sure you note every possible problem with the equipment you can think of at the time.  The accident report is very important in determining what may have happened to cause the injury.
Second, contact a FELA or railroad lawyer as soon as possible after the accident. A lawyer who practices railroad law will help draw out and point out those areas which may be considered railroad liability. The lawyer should also hire an investigator as soon as possible to take statements supporting the worker's position;

Finally, speak to other railroaders and make a selection of a competent physician of your own choice for treatment. Needless to say, there are some physicians who lean toward the railroad’s position and may try to send you back to work before you are ready.  Be sure that your physician has your health as his/her interest, not the funds that the railroad can save by having you back to work before you are healthy.

VI. WHAT CAN I EXPECT FROM THE RAILROAD?

You should expect them to try to save every penny possible.  One of the things that is often forgotten about the railroad by injured employee is that the railroad is a busiThe goal is to make money, not pay you fairly.  You are now a loss and you need to be minimized as much as possible.  Claims agents and claims representatives are often friendly and nice people.  Never forget, however, that they have one purpose, to save the railroad money. They do this by minimizing your injury and blaming you for the injury.  They will accuse you of violating safety rules, not paying attention, or generally disobeying safety instruction.  Do not speak to any adjuster before speaking to a FELA attorney if you have been seriously injured.  Claims agents are very good at getting you to say things that, taken out of context, can really damage your case.  Do not try to outsmart the claims agent alone.  The years of experience will give the agent an advantage and it is recommended that you had a FELA attorney to guide you through the process.  Always remember that the railroad is not permitted to intimidate the worker to prevent you from filing a claim under the FELA or to collect information from witnesses.  Such actions may be considered a felony and should be reported to your attorney if they take place.

VII. CONCLUSION

The FELA protects the injured worker in many ways, but in order to take full advantage of the protection, you likely need a FELA attorney who understands the system and can aid you in discussions and negotiations with the railroad claims agents.  Our office is knowledgeable and ready to help you in times of need.  Initial consultations are always free for injured workers.  Call our office today to set up an appointment to meet with a FELA attorney and understand your rights. In Corbin, at 523-5100 or toll free at 877-524-5100 or email at shane@copelandandromines.com.