|
|
A Note From Legal Counsel
WHEN INJURED ON THE JOB · Report the injury immediately to your local union officers, and get their help. · Collect al benefits under union agreements and federal laws. · See a doctor of your choice. · Complete the railroad’s accident or personal injury report. · Give no statement to a railroad’s claim agent, unless required by railroad rules or union contract/agreement. · Protect your job security through your local union officers. · Do not participate in a railroad investigation without union representation. · Learn your rights. Do not accept the railroad’s advice or decision as to how much money you are entitled without the advice of Designated Legal Counsel. Call us for free advice about your on the job injury. Jones & Granger Designated Counsel For All Railroad Crafts 800-432-1202 800-231-3359
INFORMATION FOR MEDICAL PROVIDERS On-the-job injuries to railroad employees fall under a federal law: the Federal Employees Liability Act. Railroad employees are not covered compensation laws. Railroad employees have medical insurance or health care plans to pay medical expenses in connection with on-the job injuries and do not require permission or approval from employers in order to receive care. Please honor the doctor/patient privilege by keeping my medical information confidential, unless I give specific written authorization for disclosure.
THE HISTORY OF FELA
JONES & GRANGER LAW FIRM Mickey Muschietty
In 1908 the Federal Employers Liability Act (FELA) was established in response to the hazardous working conditions in the rail industry. It is reported in the Interstate Commerce Commission Report (764) that in 1901, 2,675 railroad employees were killed and 41,142 were injured. Prior to the enactment of FELA all railroad employees were covered under the various workmen compensation Statutes, which were both inadequate and non-uniform in the benefits available. Due to the great number of injuries and in-adequacy of benefits available, Congress passed the FELA to protect railroad workers and to bring about a more uniform recovery method. The railroad companies opposed all laws pertaining to the protection of railroad workers; however, when legislation was introduced, the carriers pushed for a statute, which would require the employee to prove negligence (or fault) in order to make a recovery. Initially this worked well for the railroads since they could tie up the injured workers case in court and force the injured worker to occur substantial expense in order to make a recovery. As a result, many employees could not afford representation or the expense of litigation and did not use the FELA. In 1916, the Brotherhood of Railroad Trainmen saw the need to address this issue and formulated the idea of designating certain lawyers to represent injured Union members. This quickly carried over to all the rail Unions and hence started the Designated Legal Counsel system which is in place today. The introduction of Designated Legal Counsel (DLS) was important to the injured worker because the quality of representation improved along with the recoveries made by the injured workers. Due to the success if the DLC, the railroads began to attack the DLS on the basis of various state solicitation laws. In June 1959 the Virginia State Bar filed suite against the Brotherhood of Railroad Trainmen and one of it’s designated council on the basis of violation of solicitation laws. The United States Supreme Court decided the case in 1964, and upheld the rights of the Union to advise union workers to obtain legal advice and that specific lawyers may be recommended accordance with the First and Fourteenth Amendment. Brotherhood of Railroad Trainmen v. Virginia Ex. Rel. Virginia State Bar, 377U>S> 1 (19640 In 1939, the first amendments to FELA were made. Amendments eliminating assumption of risk and the Fellow Servant Doctrine were made in addition to changing contributory negligence. In addition, the railroads were prohibited from panelizing employees who provided information concerning an injury to the injured employees. Other than changes made in 1939, no other amendments have been made to the FELA. In 1997, the railroads were successful in having the General Accounting Office (GAO) study the feasibility of changing the (FELA). The GAO, after having studied the FELA and conduction numerous interviews with Designated Counsel and various injured workers, found that FELA works. They further found out that if any further changed are to be made, they should be made between labor and management. Other than the changes made by congress in 1939, the United States Supreme Court in several landmark cases has interpreted the FELA. In 1914, the Supreme Court held that violations of the Safety Appliance Act and Boiler Inspection Act made the railroads strictly liable for injuries resulting from various violations The Supreme Court in a landmark decision in1956 relaxed the burden of plaintiff in proving fault. The court held that the injury question was presented if the railroad’s negligence played any part, even the slightest, in causing the death or injury. Rogers v. Missouri Pacific Railroad 352 U.S. 503 (1957). The proof or negligence was further eased when the Supreme Court held that a jury question of causation was presented when there was evidence that the employer’s negligence played “any role” in providing the injury. Gallick v. Baltimore and Ohio Railroad Company 372 U.S. 108 (1963). Although the Supreme Court liberalized the burden for Plaintiff to prove its case in Rogers & Glick, in1964 the Supreme Court held that pure emotional or psychological injuries are not covered under FELA unless the emotional injury follows or is in conjunction with a physical injury, or individual was in the zone of danger. Consolidated Rail Corporation v. Gottshall 510 U.S. 1162. Taken as a whole, the effect of FELA has been a safety statute since the railroads are held accountable for their actions. In today’s conservative environment, every effort must be made to preserve what Congress in its infinite wisdom passed in 1908.
This is a copy of the booklet that Mickey Muschietty passed out at the October 8th meeting. Jones, Granger, Tramuto & Halstead Jones Granger has been representing railway employees for over fifty years in matters pertaining to on-the-job injuries, asbestos related disease, injuries due to exposure to toxic chemicals and many other railroad related issues. As designated counsel for rail labor employees, the firm of Jones Granger specializes in the representation of railway employees for on-duty injuries. Railroad employees, like no other workers in the country, fall under a federal law, the “Federal Employers’ Liability Act”, commonly known as FELA. Our home office is located at 10000 Memorial Drive in Houston, Texas with a satellite office in Little Rock, Arkansas. To insure support for our legal staff, Jones Granger employs qualified legal assistants, administrators and other essential support personnel. Additionally, we have qualified field representatives and investigators who are experienced in all aspects of railroad operations. Jones Granger knows that service to our clients is of the utmost importance. We specialize in FELA to deliver the highest quality representation possible to our clients. It is important for you, the client, to select an attorney who is knowledgeable, experienced and trustworthy. Jones Granger is privileged and proud to have served so many generations of railroad employees and their families. J. Weldon Granger Managing Partner
In 1908 Congress passed a comprehensive stature, directed at protecting the rights of injured railroad workers, known as the Federal Employer’s 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 workers’ 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 workers’ compensation statue. Under FELA, you are entitled to collect a claim if there is evidence that the injury was caused, in whole or in 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 for its employees to work. Normally, the railroad cannot transfer its 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 another railroad. Negligence requires proof that:
A. The railroad has been guilty of lack of due care under the circumstances, or B. The railroad has failed to do what a reasonable and prudent person would have done under the circumstances, or C. The railroad has done what a person under the existing circumstances 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 use of the tools and/or equipment, as well as any work involved in the everyday operation of the 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. In order to have a valid claim, it is necessary for an injured employee to prove that the carrier was somewhat at fault. If you are unsure of your claim, please contact an attorney designated by your union as soon as possible, so that the attorney can 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 Federal Employers’ Liability Act 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 that 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 negligent and/or defective tools or equipment that contributed to the accident and/or injury 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.
Formerly 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 Locomotion Inspection Act, formerly 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 damages from the carrier. In general, these Acts only cover certain crafts. Any craft whose job it is to repair the defect once it has been found is not normally protected by the Acts.
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 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 should try to remember if you have been sufficiently trained for the duty you were performing. Did you have enough help to accomplish the task? Were you 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.
The statute of limitations for an injury covered under the FELA is THREE YEARS FROM THE DATE OF THE INJURY. For occupational diseases, where 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 year statute has almost run out 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.
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 1950’s and 1960’s are just now beginning to feel the effects of asbestos. Asbestos can cause a variety of serious diseases, including breathing problems and cancer. In 1980, Jones Granger was the first FELA firm to begin a program that involved the railroad trade unions. We continue to be unparalleled in our approach to the problem of asbestos in the railroad industry.
Injured workers have the right to go to court and have a jury decide whether or not they are entitled to compensation and the amount of that compensation. An injured FELA plaintiff can recover the following damages:
A. The nature of the injury, extent of the injury and its effect in the past and in the future.
B. The pain and suffering and loss of enjoyment of life in the past and in the future.
C. The loss of earning in the past and the future loss of earnings or a loss of earning ability.
D. The past and future medical expenses incurred as a result of the injury received.
Mental injuries are recoverable, including emotional distress, if the employee can show that he or she was in the zone of danger of physical impact with imminent apprehension of physical harm, or the mental injury was caused by a physical injury.
For injuries resulting in death, the survivors may be entitled to compensation for their financial loss and any pain and suffering of the deceased.
Damages are reduced if a worker is determined to have been proportionally at fault or negligent. This is commonly referred to as contributory negligence.
Any worker who is involved in an accident or injury should immediately report the 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 the worker. 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 in 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 stamen 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 dedicated counsel. If ordered to give either a writing 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 is 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 family doctor, it is preferable that the worker see 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 specialist in handling FELA claims and who are fully experienced in dealing with the railroad claim agents and railroad lawyers. Designated counsel will insure that the injured employee and their family will receive that benefits to which they are entitled. They are very familiar with the rail industry and understand the complexities of you 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 railroad law. Non-designated lawyers do not have any obligation to you Union and do not answer to you Union. Great care should be used when selecting your attorney.
We want to see 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 Jones Granger’s toll free national line at 1-800-231-3359.
www.iamaw.org_________________________________________________________________________________________________________________________________
International Association of Machinist and Aerospace Workers
9000 Machinist Place * Upper Marlboro, MD 20772-2687 Telephone: 301-967-4500
www.boilermakers.org___________________________________________________________________________________________________________________________
The International Brotherhood of Boilermakers, Iron Workers, Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO
753 State Avenue, Suite 570 * Kansas City, KS 66101 Telephone: 913-371-2640
www.smwia.org________________________________________________________________________________________________________________________________
Sheet Metal Workers’ International Association
1750 New York Avenue NW * Washington, DC 20006-5386 Telephone: 202-783-5880
www.bmwe.org________________________________________________________________________________________________________________________________
Brotherhood of Maintenance of Way Employees Division International Brotherhood of Teamsters
20300 Civic Center Drive * Southfield, MI 48076 Telephone: 248-948-1010
www.ncfo.org_________________________________________________________________________________________________________________________________
National conference of Firemen & Oilers
1023 15th Street NW, 10th Floor * Washington, DC 20005 Telephone: 202-962-0981
www.tcunion.org______________________________________________________________________________________________________________________________
Transportation Communications International Union
3 Research Place * Rockville, MD 20850 Telephone: 301-948-4910
www.ibew.com_______________________________________________________________________________________________________________________________
International Brotherhood of Electrical Workers
900 Seventh Street NW * Washington, DC 20001 Telephone: 202-833-7000
www.brs.org________________________________________________________________________________________________________________________________
Brotherhood of Railroad Signalmen
917 Shenandoah Shores Road * Front Royal, VA 22630 Telephone: 540-622-6522
www.ble.org_______________________________________________________________________________________________________________________________
Brotherhood of Locomotive Engineers and Trainmen
1370 Ontario Street Mezzanine * Cleveland OH 44113 Telephone: 216-241-2630
www.aetna.com_____________________________________________________________________________________________________________________________
Aetna Dental & Medical
Aetna, Inc., 151 Farmington Avenue * Hartford, CT 06156 Major Medical (HMO): 800-842-044 * Value – 800-934-7245 Dental: 877-277-3368 * Medical RX: 800-842-0070
www.uhc.com______________________________________________________________________________________________________________________________
United Healthcare * Dallas
5800 Granite Parkway * Plano, TX 75024 Telephone: 800-842-5252 Patient Advocate: 800-842-4555
www.unum.com____________________________________________________________________________________________________________________________
Unum Provident
Toll Free: 800-542-4231 * Fax 423-755-7857
www.uphealth.com_________________________________________________________________________________________________________________________
Union Pacific Employees Health System
Telephone: 801-595-4300 * Prescriptions – 801-547-0421
www.fra.dot.gov__________________________________________________________________________________________________________________________
Federal Railroad Administration
www.ntsb.gov___________________________________________________________________________________________________________________________
National Transportation Safety Board
www.rrb.gov___________________________________________________________________________________________________________________________
Railroad Retirement Board
www.whitehouse.gov____________________________________________________________________________________________________________________
The White House
www.loc.gov___________________________________________________________________________________________________________________________
U.S. Library of Congress
www.house.gov________________________________________________________________________________________________________________________
U.S. House of Representatives
www.senate.gov________________________________________________________________________________________________________________________
U.S. Senate
www.nlrb.gov__________________________________________________________________________________________________________________________
National Labor Relations Board
www.nih.gov___________________________________________________________________________________________________________________________
National Institutes of Health
www.fda.gov____________________________________________________________________________________________________________________________
U.S. Food & Drug Administration
www.cdc.gov___________________________________________________________________________________________________________________________
Centers for Disease Control & Prevention
www.epa.gov___________________________________________________________________________________________________________________________
U.S. Environmental Protection Agency
www.ssa.gov____________________________________________________________________________________________________________________________
U.S. Social Security Administration
|
