THE LAW OFFICES OF
BARRY G. DOYLE, P.C.
100 W MONROE ST.,
STE 2100
CHICAGO, IL 60603
PHONE: 312.263.1080
FAX: 312.263.0153
Chicago Accident Lawyers
Serving Chicago, Aurora, Rockford, and Surrounding Areas
Please select from the following questions:
- I am employed by a railroad and was recently injured at work. A neighbor said that I should get on worker's compensation. What should I do?
- What is the difference between FELA and workers' compensation?
- What do I have to prove in a FELA case to recover damages?
- What is the difference between the damages I can recover under FELA as compared to workers' compensation?
- Who is covered by FELA?
- How will my medical bills get paid?
- While I am off work, what can be done to sustain my income?
- Can I get an advance on my FELA settlement?
- Because I am a railroad employee and am going to file a lawsuit under FELA, does that prevent me from filing suit against someone else who may be at fault besides the railroad?
- I am not sure that I want to get involved in filing a lawsuit. How long do I have to file a lawsuit?
- What kinds of injuries are covered by FELA?
- If I am partly at fault for the accident, does this prevent me from recovering under FELA?
- Is it possible for me to recover under FELA when I get hurt off company premises?
- What things are included in my damages in a FELA case?
- If I receive money for my injuries as a result of my FELA case, do I have to pay taxes it?
- If I decide that I want to file a lawsuit under FELA, where would the lawsuit be filed?
- Can I be fired for filing a FELA suit?
- If I am in a work-related accident, what should I do to protect myself?
- Why do I need an attorney?
I am employed by a railroad and was recently injured at work. A neighbor said that I should get on worker's compensation. What should I do?
In general, persons employed in the railroad industry are not covered by the workers' compensation. Instead, almost all work-related injuries involving railroad workers are covered by a federal law known as the Federal Employer's Liability Act, which is normally referred to as FELA.
What is the difference between FELA and workers' compensation?
There are many differences between FELA and workers' compensation, but two are most important. First, recovery under FELA is based upon the fault of the railroad, while in workers' compensation the fault of the employee or the employer is not an issue. Second, there is a significant difference between what can be recovered in a FELA case as compared to a workers' compensation case.
What do I have to prove in a FELA case to recover damages?
In a FELA case, the worker must show that the railroad was negligent in causing the injury. The FELA statute and other related statutes generally create an obligation for the railroad to provide a safe place to work for the worker. A worker must show that the negligence of the railroad in failing to provide a safe place to work resulted in the worker being injured.
This means that if the railroad does not provide a safe place to work or provides unsafe or inadequate equipment or if a co-worker commits an unsafe or dangerous act, the railroad will be found to be negligent in causing the worker's injuries. The worker needs to only show a slight degree of negligence on the part of the railroad in causing the injuries.
What is the difference between the damages I can recover under FELA as compared to workers' compensation?
Generally speaking, the damages available under FELA are potentially much greater than those available through workers' compensation. In FELA, the damages may include unpaid medical expenses, future medical expenses, past and future lost wages, pain and suffering, disability, disfigurement, and other items. Workers' compensation provides compensation for medical expenses, a portion of the worker's lost wages while he is off work, and a lump sum for permanent disability of the body part injured. Workers' compensation does not provide any damages for pain and suffering.
The FELA statute determines this. The statute must cover both the railroad and the worker before FELA applies. The railroad is covered if it engages in interstate commerce. The worker is covered if his job duties affect interstate commerce. As a practical matter, this covers a broad range of employment with the railroad, including clerks, stevedores, maintenance workers, switchmen, and many other categories of employees. It is very unusual for a railroad employee to not be covered by FELA. In the event that the worker is not covered by FELA, he is likely covered by workers' compensation.
How will my medical bills get paid?
The health insurance policy which covers almost all railroad workers will pay your medical expenses as they are incurred. This is a benefit you have as a consequence of your employment with the railroad. It is just as available to you for an on-the-job injury as it is for one that you suffer in your back yard.
Because a FELA case is not a state workers' compensation case, the doctor's fees are not subject to the standard scale contained in a state workers' compensation statute. The doctor is also not required to consult with the railroad. This helps ensure the confidentiality of your private medical information. Set fees, schedules, and consultations with the injured worker's employer are common features of many state workers' compensation statutes, so your doctor should be made aware early that your on-the-job injury is a FELA case and not a worker's compensation case.
While I am off work, what can be done to sustain my income?
There are several means for a worker to sustain his income while he is off work. These include Railroad Retirement Board benefits, private insurance, railroad-sponsored wage continuation plans, and cash advances on your settlement.
Persons who suffer a work-related injury which results in a temporary inability to work may be eligible for sickness and unemployment benefit programs administered by the Railroad Retirement Board. Your length of service in the railroads determines eligibility for the programs and the length of time for which you can receive benefits. The amount of the benefit is a percentage of your weekly wage, subject to a maximum amount, which is adjusted annually. There is a two-week waiting period before benefits can be received. An employee is not eligible for sickness benefits while receiving any pay.
A worker who suffers a serious work-related injury that results in permanent disability from his regular railroad occupation may also be eligible for long-term benefits from the Railroad Retirement Board. Eligibility for long-term benefits depends on many factors including the nature of the disability, the worker's age, and his length of service with the railroad. The amount of the benefit is calculated with a formula.
Many workers may also be covered by short-term disability insurance provided by their unions. Eligibility for the benefits and the amount will vary from plan to plan, so you should consult your union representative regarding your eligibility for these benefits.
The Railroad Retirement Board Benefits and insurance plan benefits are available to the worker without regard to who was at fault in causing the injury. However, they only replace a small portion of the worker's lost income resulting from the injury and the benefits paid must usually be paid back on a dollar-for-dollar basis once the FELA claim is settled.
Many railroads have wage continuation plans in place where workers continue to receive their pay while they are off work. These plans are in general not part of the railroad's contract with the union, so wage continuation benefits can be withdrawn from the employee at any time. Eligibility for the wage continuation program and the benefits provided varies from railroad to railroad, but there are almost always strings attached to the benefits. These strings may include things such as allowing the railroad to meet privately with your doctor or otherwise interfering with your recovery from your injuries. The amounts paid through a wage continuation program reduce the total amount of the FELA settlement.
Can I get an advance on my FELA settlement?
Many railroads will make cash advances on settlements of FELA claims before entering into a final settlement with the worker. Whether this will occur in your case depends upon many circumstances, including the policies of the railroad and the facts and circumstances surrounding your case. The money paid as an advance will be deducted from your final settlement. If a claims agent offers you an advance, you should carefully read any document that you are asked to sign. There have been instances where a worker has signed documents while accepting money he understood to be an advance but was in reality signing papers giving up his right to pursue his FELA case. If there is any doubt in your mind as to what a document means, you should definitely not sign it and should consult with an accident attorney or with a union representative.
In Illinois, attorneys are forbidden under the Code of Professional Responsibility from advancing money to clients on their settlements. An attorney who does so is risking losing his license or being suspended from practicing law for a period of time.
Because I am a railroad employee and am going to file a lawsuit under FELA, does that prevent me from filing suit against someone else who may be at fault besides the railroad?
The filing of a FELA case against a railroad does not affect your rights against other parties who may be responsible for your injuries. For example, you still may sue a manufacturer of a defective piece of equipment in a products liability lawsuit, a doctor who commits medical malpractice against you, or any other person whose negligence causes you injury. The law covering these types of cases is not controlled by FELA, but is generally controlled by the law of the state in which you were injured.
If you have reason to believe that you were injured due to the fault of anyone else other than the railroad, it is very important to consult with a lawyer familiar with the law of the state where the injury took place so that he can take the necessary steps to protect your rights.
I am not sure that I want to get involved in filing a lawsuit. How long do I have to file a lawsuit?
A law called the statute of limitations controls the amount of time that you have to file a lawsuit. In FELA, the statute of limitations is found in Section 56. The general rule is that in a FELA case, you have three years from the date of accident in which to file your lawsuit. If you do not file a lawsuit by the time that the statute of limitations expires, your lawsuit will probably be dismissed and you will not receive any compensation for your injuries.
With most type of accidents, it is very clear when the statute of limitations begins to run. The general rule is that the statute of limitations begins to run when the harm occurs. For example, if you break your leg in a fall in a rail yard that does not provide a safe walking surface, then the statute of limitations begins to run the day of your fall and expires three years later.
In some situations, it is more difficult to determine when the statute of limitations begins to run. For example, assume that you are exposed to a harmful substance (such as asbestos, creosote, or diesel exhaust) that eventually causes you to become ill. The harm began to occur when you were exposed to the harmful substance. However, in that case, the statute of limitations does not begin to run until the harm manifests itself, that is, until you actually become sick and until you discover what caused you to become sick. However, once you begin to experience the harm or illness, the law places an obligation on the injured or ill railroader to investigate whether there is a connection between his employment and the injury or illness.
Another situation that creates a tricky situation with the statute of limitations is where you suffer a work-related injury, but the injury does not occur at one time; it is the result of being exposed to one dangerous situation over and over for a period of time. Repetitive trauma injuries, injuries that result from small amounts of harm being done to the body over and over, are an example of this. Common types of repetitive trauma injuries include carpal tunnel syndrome, hearing loss, back and spine injuries, joint injuries, and certain types of illnesses. In this situation, where there is a continuing violation of FELA by the railroad, the statute of limitations does not begin to run until the last day you are exposed to the dangerous condition.
Cases that do not involve FELA, such as product liability cases, medical malpractice cases, and negligence cases, are normally controlled by the statute of limitations in the state where the accident took place. In Illinois, the general rule is that the statute of limitations is two years from the date of accident. However, there are statutes and circumstances that may increase or decrease the time in which you have to file a lawsuit. A different statute of limitations covers workers' compensation cases. If you think that you may have a case against someone other than the railroad, you should consult a lawyer familiar with the law where the accident took place, as the laws covering the statute of limitations vary from state to state.
What kinds of injuries are covered by FELA?
There are many types of injuries covered by FELA. Injuries that result from a single occurrence, such as broken bones from a fall and similar kinds of injuries, are obviously covered by FELA. However, the "single traumatic event" injuries are not the only kinds of injuries covered by FELA. We mentioned earlier repetitive trauma injuries and occupational diseases, and these types of injuries are also covered by FELA. Many other types of injuries including heart attacks, insect bites, frostbite, and other types of conditions other than traumas have been found to be covered under FELA. Under certain types of circumstances, emotional distress may also be compensable under FELA. The bottom line on any FELA case is that if there is a condition of ill-being which is connected to the employment with the railroad and there is some negligence, even slight, on the part of the railroad in causing the condition, then there may be a case under FELA. If there is any doubt in your mind as to whether a medical condition can be tied to a FELA case, you should consult an attorney as soon as possible so as to prevent the statute of limitations expiring before a suit can be filed on your behalf.
In the event that I am killed in a work-related accident, what rights does my family have under FELA?
In the event that a railroad worker is killed in the line of duty, his personal representative may bring a suit on his behalf. Generally, the representative will be the executor of your estate or if you have a will, or a family member or other person appointed by the court if you do not have a will. The lawsuit will be brought for the benefit of your spouse and children, or your parents if you have no spouse or children. In the event that you are not married, and have no children or parents, then the suit will be brought for the benefit of your other next of kin dependent upon you for support.
The damages available in a death case brought under FELA includes compensation for conscious pain and suffering prior to death, disability, disfigurement, lost wages and medical expenses prior to death. In addition, your survivors have a right to recover for the loss of your financial support, services, and emotional guidance, advice, and society.
Railroad work is a hazardous profession, and the dangers surrounding it are often an uncomfortable subject which is not talked about. As a result, family members are often unaware of the rights which FELA provides to the families of workers who have been killed in the line of duty. Seizing upon this, when a worker is killed in the line of duty, railroad claims agents will often try to secure a quick and cheap settlement with a grieving family. You should be sure that your family is aware of its rights under FELA so it can protect those rights in the event of a tragedy.
If I am partly at fault for the accident, does this prevent me from recovering under FELA?
In general, the answer to this question is no, but in most cases, it will affect the total amount that is finally recovered. In most cases, the degree to which a worker is at fault reduces his recovery proportionally. For example, if a jury determines that a worker suffers damages totaling $100,000, but that he is 40% at fault, the worker will recover $60,000, or $100,000 in damages reduced by 40% for the degree of employee fault in causing the accident. A worker can still recover some compensation under FELA even if he is over 50% at fault for the accident, but the recovery is reduced in proportion to the employee's fault.
In cases where there are violations of the Federal Safety Appliance Act (dealing with automatic couplers and power brakes) and the Boiler Inspection Act (dealing with conditions upon a locomotive), OSHA (generally setting work health and safety standards), or certain other federal statutes and regulations, the fault of the worker in causing the accident may not be considered to bar or reduce the worker's recovery under FELA. Once the employee shows the negligence of the railroad in violating these standards, the worker collects all of his damages without any consideration at all if the worker was at fault.
In situations where the worker is guilty of violating a company safety rule at the time his injury was caused, this does not prevent him from recovering altogether. However, a worker's violation of a company safety rule may be used as evidence of the worker's negligence and may reduce his damages proportionally.
Is it possible for me to recover under FELA when I get hurt off company premises?
Under some circumstances, it may be possible to recover under FELA for injuries that occur on premises not owned by the railroad. The railroad's main duty is to provide a safe place to work for people employed by it, and this duty is not limited to its own premises, as it is foreseeable that during the course of ordinary railroad operations, railroad workers will be placed in situations where they are working in places or with equipment that does not belong to the railroad. In those situations, the railroad has a duty to make a reasonable inspection to determine that the work area is safe for its employees. An employee may also recover under FELA while lodging temporarily in railroad-sponsored housing or while riding in railroad-sponsored transportation.
There are many, many situations where the railroad will be liable under FELA for injuries sustained by its workers while off company premises. Additionally, in those types of situations, another party may be responsible for negligently causing the worker's injuries. The liability of those parties is controlled by state law. As the particular laws controlling this sort of liability vary from state to state, the best thing to do when you suffer an off-premises injury is to consult a lawyer.
What things are included in my damages in a FELA case?
The types of damages recoverable in a FELA case include unpaid past medical expenses, future medical expenses, past and future lost wages, past and future pain and suffering, disability, disfigurement, aggravation of a pre-existing condition, and under some circumstances, emotional distress. These items together can result in a significant recovery for an injured worker in a FELA case.
If I receive money for my injuries as a result of my FELA case, do I have to pay taxes it?
No. Under the present tax code, any money received in compensation for personal injuries is not taxed. This includes money for lost wages and other income, which would have been taxed at the time it would have been earned had the injury not occurred.
If I decide that I want to file a lawsuit under FELA, where would the lawsuit be filed?
The law permits FELA cases to be filed in either state court or federal court. As to the exact location of where the suit would be filed, in general it can be filed anywhere the railroad does business. For most railroads, that means that there are many different courts in which suit might be filed. An attorney should carefully consider which court would be best for you, as the amount of time to trial and amounts of verdicts vary greatly from county to county. Additionally, the rules of procedure and evidence may be different in the various courts, so this must be considered as well.
There were a number of witnesses to my accident, but I don't want to put any of my co-workers in a bad spot. Is there anything that can be done?
Section 60 of FELA makes it illegal to prevent railroad employees from furnishing information regarding a work-related accident to an injured employee. This is true whether there is a rule against this, whether pressure, threats, or intimidation are applied against the employee, or the employee is subjected to discharge or disciplinary action. An aggressive attorney will attempt to secure a court order against this type of conduct and have violations of such an order punished by finding of contempt of court against the railroad for violations of the order.
Can I be fired for filing a FELA suit?
No. Section 55 of FELA states that any device of the railroad to exempt itself from liability is void, and this includes firing, demoting, or otherwise disciplining or punishing a worker who brings a FELA suit. Moreover, decisions of the National Railroad Adjustment Board also make it clear that this kind of practice is illegal.
If I am in a work-related accident, what should I do to protect myself?
If you suffer a work-related injury, you should be careful to make a note as to who witnessed the accident and who was there immediately before and after the accident, as these people will be best at backing up your account of what happened to you. If there was a dangerous or defective condition or piece of equipment involved, you should be careful to note exactly what is wrong with it and if possible, have it photographed, as repairs are likely to quickly follow any accident.
All railroads have rules that require prompt reporting of on-the-job injuries. If you are hurt on the job, you should follow the rule and complete an accident report, even if you are discouraged from doing so by your supervisor. Remember that the FELA statute makes it illegal for the railroad to do anything to discourage you or retaliate against you for asserting your rights under FELA.
It is important that the accident report be completed because failing to complete an accident report can subject you to disciplinary action, because failing to complete one will allow the railroad's lawyer to attack your credibility in court, and because with the passage of time, you may forget information that would be important in helping you win your case.
When you complete the accident report, you need to be careful to include all of the things that are bothering you physically at the time, even if it seems minor at the time you were hurt. Often, injuries that turn out to be very serious are not recognized for what they are at the time of the accident; similarly, a serious injury to one body part may be ignored or minimized because of the severity of injuries to other parts of the body. Failing to report all injuries at the time of the accident may open the door for lawyers from the railroad to claim that some of your injuries were not caused by the accident.
When you complete the accident report, you also want to detail all of the things that caused your injury. Remember, FELA requires not just that you were hurt on the job, but that there was some negligence on the part of the railroad in causing your injury. From a legal perspective, there is a world of difference between an accident report that states, "I fell while walking on the walkway" and one that states, "I tripped on loose ballast that was on the walkway." You must be careful to list all defects or unsafe conditions in the premises, equipment, working conditions, or work practices that contributed in causing your injury.
While you may be required to complete the company accident report, you are not required and should not give a recorded statement to a claims agent. If a claims agent asks you for a recorded statement, you should decline and seek the assistance of a union representative or your attorney.
Many times, railroad claims agents will seek to gain the trust of an injured worker and promise to deal with him fairly. Keep in mind who is paying the claims agent and what his goal is. He is working for the railroad and his job is to minimize the financial exposure of the railroad for injuries resulting from the negligence of the railroad. When you are dealing with the personal, physical, and financial stresses of being injured on the job, you need to have someone in your corner whose sole goal is to protect your interests.
It should be clear by now that there are many complex legal issues that result from on-the-job injuries and without legal representation, you may unknowingly give up valuable legal rights.
In the end, the decision to hire a lawyer is always yours. However, you should be aware that a study by the Transportation Research Board showed that the 20% of injured railroad workers who hired lawyers recovered 70% of the total dollars paid out by railroads for FELA claims. That leaves the remaining 80% of injured workers to share the other 30% of the claim dollars. Your rights are valuable, and you should do everything you can to protect them.
No Recovery, NO FEE. Find out more about FELA and the rights of railroad workers. Call or email Attorney Barry Doyle today for a free injury consultation.
