The Pfiester Law firm sincerely wants you to have an injury-free railroad career.  We also recognize that railroading is a very dangerous profession.   We would be remiss if we didn't encourage you to take the following lessons with you wherever you go on the railroad.

"If my conductor's seat is in such a bad state of repair as to force me to ride somewhere else, and I get injured as a result of where I had to ride in the train, am I protected by the FELA?"

"During a train collision, I was thrown from my conductor's seat and injured because the seat did not have armrests or a seat belt.  A co-worker tells me that two railroad safety acts -- the Locomotive Inspection Act and the Boiler Inspection Act -- were violated as a result of the missing armrests and seatbelts, thus the railroad is completely liable for my injuries.  Is this true?"

"I've been injured on the job.  I have received medical treatment and have been released by my doctor.  Unfortunately, the doctor has placed restrictions on me which prevent me from returning to my craft. My claims agent has "guaranteed" that I will be accommodated in a lighter duty position.  He also said I'm protected by the Americans with Disability Act (ADA).  Can I trust the Claims Department's advice in this matter?"

"Is it true that on-the-job injuries in one craft are often attributable to errors and failures in other, sometimes seemingly un-related, crafts or departments -- including management?

"My claims agent took a recorded statement from me regarding my on-the-job accident.  Later, when I asked for a copy of the tape, he gave me the runaround and refused to give me a copy.   Am I entitled to a copy?"

"A co-worker was in such pain after his accident that he had trouble filling out his accident report.   Is he allowed to delay filling out the accident report until he has a clearer head?"

"I was injured while working for a short-line railroad.  They tell me that because they are not a railroad that crosses state lines, the Federal Employers Liability Act does not apply, and therefore I will be compensated for my injury under Workers Compensation.  Am I or am I not covered by the FELA?"

"I've heard management say that Worker's Compensation is a better and more modern system than FELA.  I hear it provides fast, automatic coverage for everyone injured on the job, and that FELA is antiquated and unfair to injured railroaders.  I've also heard that Worker's Comp rarely requires the services of a lawyer, and that many railroaders end up with a zero award for their FELA claim.  Is all this true?"

"I was injured on the job.  Several co-workers witnessed my accident.  They could help me if they simply came forward with the truth.   But they are afraid for their jobs and refuse to get involved.  Can they really lose their jobs if they help me?"

"I was injured on the job.  Unfortunately, the blame for the accident rests on a co-worker's shoulders.  I don't want to get him into trouble.  Is there a way to make my claim without involving him?"

"My FELA lawyer is asking me to divulge all information about prior injuries and any criminal record I might have.  I don't want to tell him because I think it's irrelevant and will only hurt my case.  Is it OK to withhold this information?"

"I was hurt on the job, but when I reported the injury to management, they dismissed the injury as too minor to report.  Will this cause problems with any future claims I may have as a result of this or other injuries?"

"If I get hurt because I fall or twist my knee walking alongside these tracks or one like them in a rail yard, do I have a FELA case?"

Answer: Quite possibly.  But if you put on your accident report that there is nothing wrong with this walkway, or that no condition contributed to your injury, or that no one other than you caused the injury, then you have greatly diminished or eliminated your FELA claim!  Remember, you must prove the railroad "legally negligent" to win full compensation for your on-duty claim.

Explanation: In some states, the walkway shown in the above photo is illegal.  In California, for example, the above walkway (or "toepath") would be in violation of strict standards set forth by the California Public Utilities Commission.  

These California PUC General Orders call for specific walkway widths, inclinations, ballast heights and obstacle clearances that ensure a reasonably safe path to work alongside railroad tracks.

Conclusion:  Railroaders are highly knowledgeable about their own crafts, but are often unaware of the complicated and sometimes disastrous legal pitfalls that await them when they try to handle their own injury claim.  Remember; "normal" working conditions are not necessarily legal working conditions.  Identifying which safety standards and laws were violated by the railroad is a serious job best left to an experienced FELA lawyer.  Contact the Pfiester Law firm for your free, no-obligation initial consultation.

"If my conductor's seat is in such a bad state of repair as to force me to ride somewhere else, and I get injured as a result of where I had to ride in the train, am I protected by the FELA?"

Answer: Quite possibly.

Explanation: Depending on the specifics of the situation, such a condition might constitute a violation of the Locomotive Inspection Act (also known as the Boiler Inspection Act).  If the condition was found to violate this act, the railroad would be strictly liable for your injuries.  Making this combination factual/legal determination is something best left to an experienced FELA lawyer.

Conclusion: There are numerous railroad safety acts and hundreds of individual regulations that, when violated by the railroad, make the railroad completely liable for injuries sustained by their employees as a result of the dangerous condition. As with other areas of FELA law, determining if a condition violates a safety act can be a very complicated endeavor.  To date, the United States Supreme court has written over 240 decisions on the FELA; lower state and federal appellate courts have written more than 6,400 decisions.  Unless you have retained a competent, experienced FELA lawyer, applying your specific facts to the specifics of the FELA law can be a lot like looking for a needle in a haystack.

"During a train collision, I was thrown from my conductor's seat and injured because the seat did not have armrests or a seat belt.  A co-worker tells me that two railroad safety acts -- the Locomotive Inspection Act and the Boiler Inspection Act -- were violated as a result of the missing armrests and seatbelts, thus the railroad is completely liable for my injuries.  Is this true?"

Answer: No.  If you were injured in a scenario as described above and you put on the accident report and/or statement that the only reason you were injured was because of missing arm rests and/or seatbelts, you would be jeopardizing your FELA claim.

Explanation:  The above mentioned safety acts prohibit railroads from operating locomotives on their lines unless the locomotives and all their "parts and appurtenances" are "in proper condition and safe to operate in the service to which the same are put... without unnecessary peril to life or limb" (45 USC Section 23). This may seem to apply in the above scenario. However, in King vs. Southern Pacific, 855 F.2d 1485 (10th Cir. 1988), it was ruled that because the Federal Railroad Administration does not require seat belts or arm rests, the Locomotive or Boiler Inspection Act doesn't require them either.  (King was permitted to show, if he could, that the railroad was "negligent" in causing his injury.   However, he could not base railroad negligence on the missing arm rests or seat belts.)

Conclusion:  As the above situation demonstrates, proving railroad responsibility or negligence can be a complicated endeavor.  Never underestimate the importance of having an experienced FELA lawyer working for you.

"I've been injured on the job.  I have received medical treatment and have been released by my doctor.  Unfortunately, the doctor has placed restrictions on me which prevent me from returning to my craft.

My claims agent has "guaranteed" that I will be accommodated in a lighter duty position.  He also said I'm protected by the Americans with Disability Act (ADA)."

"Can I trust the Claims Department's advice in this matter?"

Answer: No. You would be unwise to completely rely on that representation.

Explanation: As per the 1998 Barnett case [Barnett vs. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998)], the Americans with Disability Act does not take precedence over a seniority roster.  You must be able to physically perform the job(s) you can bid and hold, using your seniority.

Conclusion: It is the goal of the claims department to minimize -- sometimes even deny -- payments on FELA injury claims.  Never take their advice at face value. You may say to yourself, "But I know these people; I socialize with them.  Our kids go to the same school.  Surely I can trust them?"

You may also socialize with your banker.  But do you think your banker is going to give you a break if you default on a loan?  Repeat: never take the Claims Department's advice at face value.  Contact a competent FELA lawyer.  The Pfiester Law Firm can be reached toll-free at 1-800-344-FELA (1-800-344-3352).

"Is it true that on-the-job injuries in one craft are often attributable to errors and failures in other, sometimes seemingly un-related, crafts or departments -- including management?"

Answer: Yes, this is often the case.

Explanation: Accidents do not happen without cause.  The various railroad departments & crafts share many responsibilities that interrelate to each other in many unforeseen ways.  Unless you can accurately trace and understand the complex legal relationships of the intertwined failures and errors leading to your injury, you risk substantially diminishing or eliminating your claim's true value.

Conclusion: When filling out an accident report, you must list all factors of railroad fault caused by all departments.  Don't state conclusions such as "There was nothing wrong".  If you're unsure where the path of fault leads to or from, preface your comments with the words "I may not be aware of all the facts, but I think..."

In addition to representing railroaders in virtually all crafts for the past 25 years, R. Edward Pfiester is designated as FELA counsel for several different railroad craft unions.  The Pfiester Law firm has extensive understanding about the interrelationships of the various railroad crafts, and can help you prove your claim under FELA law.

"My claims agent took a recorded statement from me regarding my on-the-job accident.  Later, when I asked for a copy of the tape, he gave me the runaround and refused to give me a copy.  Am I entitled to a copy?"

Answer:  Yes, you are entitled to a copy.

Explanation:  Injured railroaders who are not represented by a competent FELA lawyer are frequently taken advantage of by the Claims Department.  "Horror stories" of this nature are not unique.  This is not to suggest that every injured railroader needs a lawyer.  Just be aware that without a lawyer, you are much more likely to be taken advantage of by Claims.

Conclusion:  Know your rights; protect yourself.  Always request copies of everything you fill out, sign, or have recorded in any manner.  When signing a form, write "I sign this with the understanding that I will immediately receive a copy."  For recorded statements, verbally make such a statement while the tape is running.  If you feel you are being mislead by the Claims Department, contact your union or a FELA lawyer.  Any competent FELA lawyer will give you a free, initial consultation without any obligation whatsoever.

"A co-worker was in such pain after his accident that he had trouble filling out his accident report.   Is he allowed to delay filling out the accident report until he has a clearer head?"

Answer: Yes, but you need to immediately contact your union to help protect you.

Explanation: The Book of Rules requires prompt reporting of an on-duty injury.  To avoid disciplinary action, you must follow proper reporting procedure -- especially if you are delaying your report.  Exactly how that is done to protect you from discipline varies from location to location.  Your union's local chairperson should be able to help you.  A FELA lawyer can also help you with this matter.

Conclusion: It is important to inform the railroad of your injury and all its causes. Don't hesitate to seek union and/or FELA lawyer help.

"I was injured while working for a short-line railroad.  They tell me that because they are not a railroad that crosses state lines, the Federal Employers Liability Act does not apply, and therefore I will be compensated for my injury under Workers Compensation.  Am I or am I not covered by the FELA?"

Answer: You may or may not be covered by the FELA.

Explanation: The FELA applies to all employees of railroads who are injured on the job and whose railroad is "a common carrier involved in interstate commerce."  Most short line railroads probably are involved in interstate commerce, and therefore are covered by the Federal Employers Liability Act.  However, we find that short line railroads do make this "workers compensation" claim, and actually have state workers compensation insurance coverage.   They do so because under workers compensation the injured worker almost always gets less than he/she would receive under the FELA.

Recently, we proved that the FELA applies to the Trona Railroad, even though all of its 47 miles of track are located entirely inside the state of California.  Basically we proved this by showing that their rails connect to other railroads that went out of state, and that they shipped goods for more than one shipper.   These important factual and legal determinations should be made by competent FELA counsel.

Conclusion: Do not agree to any terms or settlements until you have checked with a competent FELA lawyer about your situation.  Under Worker's Compensation you are bound by a pre-determined injury valuation which varies greatly from state to state.  FELA offers your best chance of a fair recovery because it doesn't fix compensation rates and is uniformly administered across the nation.  Every FELA case has its own unique value. To learn about and obtain your claim's true value, you should retain competent FELA counsel.

"I've heard management say that Worker's Compensation is a better and more modern system than FELA.  I hear it provides fast, automatic coverage for everyone injured on the job, and that FELA is antiquated and unfair to injured railroaders.  I've also heard that Worker's Comp rarely requires the services of a lawyer, and that many railroaders end up with a zero award for their FELA claim.  Is all this true?"

Answer: Absolutely not true!

Explanation: Motivated by greed, Railroad companies are trying to have Congress repeal FELA.  It's only natural that they would attack it as an inferior system.  Let's look at their misleading claims:  

• Misconception #1: "Workers Comp is a modern system."  Workers Compensation was first started in Europe in the 1800s.  It was started in the states in 1911, three years after FELA was enacted.
• Misconception #2: "Workers Compensation is fast and automatic."   It is neither.  First, Workers Compensation is notoriously backlogged in most states.  Second, employers & insurance companies appeal most Workers Compensation cases.  In cases involving permanent disability; they win approximately 20% of those appeals. 
• Misconception #3: "Workers Compensation provides coverage for everybody injured on the job." Again, Workers Compensation cases involving permanent disability are often hotly contested.  Employers and Insurance companies defeat up to 20% of such cases in appeals.   In some states, this means 1 out of 5 permanently disabled employees receive nothing under Worker's Compensation.
• Misconception #4: "You don't need a lawyer for Workers Compensation claims." Actually, 60% of all Worker's Compensation claims are appealed, a process that almost always involves lawyers.  One exception is in Texas where lawyers can't afford to handle workers compensation cases, and injured workers are left to the mercy of employers and insurance companies. Guess who most often wins that battle?
• Misconception #5: "FELA is a boondoggle for lawyers and court battles." Only 25% of injured railroaders hire a lawyer to handle their FELA claim, and 90% of those cases are settled out-of-court.  All told, 99% of all FELA claims are settled without a court verdict.
• Misconception #6: "FELA is a lottery; many railroaders end up with nothing."  This is a grossly exaggerated claim.  99.8% of all FELA claims receive some compensation for their injury.  This means that at most a mere 2/10ths of one percent receive nothing. And even these receive full benefits as provided by the U.S. Railroad Retirement Board and (often) union negotiated disability insurance policies.  The real lottery is Workers Compensation: If you loose an arm in Connecticut, under Workers Comp you are entitled to $224,000.  Just across the border in Massachusetts, you can receive only $21,000 for the same injury. FELA offers your best chance of a fair recovery because it doesn't set inflexible compensation rates and because it is uniformly administered across the nation.

Conclusion: Unlike Worker's Compensation, the FELA was created specifically for the Railroad industry.  To reiterate the famous words of Justice William Douglas of the United States Supreme Court, "The Federal Employers Liability Act was designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation.  Not all these costs were imposed, for the Act did not make the employer an insurer.  The liability which it imposed was the liability for negligence."  Worker's Compensation simply doesn't address the unique needs of the railroad industry.

"I was injured on the job.  Several co-workers witnessed my accident.  They could help me if they simply came forward with the truth.   But they are afraid for their jobs and refuse to get involved.  Can they really lose their jobs if they help me?"

Answer: Absolutely not!

Explanation: The only people who need fear for their jobs are those who try to obstruct justice by suppressing, or attempting to suppress, information about your accident.  The practice by anybody, including company officials, of suppressing accident information by any means, including intimidation & harassment is a federal crime.

United States Code Title 45, Railroads, section §60, provides severe penalties (up to $1000 and a year in jail) for any person who attempts to suppress information in such a manner.  Additionally, effective in 1997, the Federal Railroad Administration made it illegal for any railroad, its officers or employees, to harass or intimidate injured workers into not filling out an accident report, or into not seeking proper medical treatment for their injures. (49 CFR Section 225.33)

Conclusion: The FELA was designed to make the railroad safer by making injuries costly to the railroad.  If dangerous conditions and accidents aren't promptly and properly reported, this otherwise very effective system is compromised, and all railroaders suffer as a result.  Report these types of intimidation and harassment to your union officials, or call the Pfiester Law Firm, and we will help you and the union report these violations to proper authorities.

"I was injured on the job.  Unfortunately, the blame for the accident rests on a co-worker's shoulders.  I don't want to get him into trouble.  Is there a way to make my claim without involving him?"

Answer: It could be very unwise to "protect" a fellow co-worker whose negligence caused your injury.

Explanation: Under FELA law, you absolutely must prove the railroad legally "negligent," at least in part -- whether by defective tools, bad order equipment, unlawful conditions or the negligence of somebody other than yourself -- in order to be adequately compensated for your injury.  Attempting to protect a negligent co-worker may very well cost you your claim.

Conclusion: Not reporting the negligence of a co-worker whose actions caused or contributed to your injury may or may not spare him or her from disciplinary action.   But it will definitely jeopardize -- possibly even eliminate -- your injury claim.   Ask yourself this: If the roles were reversed, would you really want a friend to spare you at the expense of his well being? Also remember that the railroad has only a limited time to cite an employee for discipline, and they may not make this deadline.

"My FELA lawyer is asking me to divulge all information about prior injuries and any criminal record I might have.  I don't want to tell him because I think it's irrelevant and will only hurt my case.   Is it OK to withhold this information?"

Answer: Absolutely not!

Explanation: Whether or not this type of information is relevant to your case is something only your lawyer can determine.   It is every lawyer’s nightmare to enter final settlement negotiations, or get to trial, and be "ambushed" by the railroad lawyer wielding damaging information the opposing client withheld from his/her lawyer.  The other side has ways of uncovering damaging information.  Many times this kind of information isn't relevant to the case and can be legally kept out of evidence and out of the litigation process.  But if your lawyer doesn't know about it ahead of time, he/she may not be able to be prepared to keep it out. In short, lying to your lawyer can completely ruin your case and/or drastically reduce or eliminate your award!

Conclusion: Don't ever withhold any information from your lawyer!  Remember your lawyer is duty-bound to keep all your communications to him/her private. He/she cannot disclose them without your permission as this would violate the attorney-client privilege.

"I was hurt on the job, but when I reported the injury to management, they dismissed the injury as too minor to report.  Will this cause problems with any future claims I may have as a result of this or other injuries?"

Answer: Quite possibly.

Explanation:  If the injury ever becomes the focus of a FELA claim, the railroad can -- and quite probably will -- use its "un-reported" claim status against you; they may very well claim that your accident either never happened, or was not job related.

Conclusion:  Get a witness to the fact that you tried to turn in an accident report, and advise your union local chairman.  Under Title 49 Code of Federal Regulations, Section 225.33, no one on the railroad can intimidate you into not filling out an accident report.

"Minor" injuries sometimes evolve into career-threatening disabilities.   They can also interact with later on-the-job injuries to create serious problems down the road.  Without a record of your on-the-job injury, the FELA injury claim may be considerably compromised.

Documenting your injury also provides incentive for management to maintain a safe working environment. 

It is the job of management to keep "reportable" injuries at a minimum.  Many get cash bonuses for doing so.  This is supposed to inspire them to create a safer workplace.  Unfortunately, some management officials see this merely as incentive to ignore dangerous working conditions and sweep injury claims under the proverbial rug.  Protect your rights: report all injuries immediately.  Call your union or a competent FELA lawyer if you have questions about how your injury claim is being handled by the railroad claims department.

Remember: reportable injuries send a loud signal to management; make the work place safer.

(c) MCMXCIX  R. Edward Pfiester, Jr., Esq., A Law Corporation