When railroad workers are injured on the job, their compensation is governed by the Federal Employer Liability Act. Jim McEldrew and our Philadelphia FELA lawyers represent the railroad employees in their alternative form of worker’s compensation.
We’re well-versed on the Federal Employer’s Liability Act and the Federal Rail Safety Act.
Jim has served as the director of the FELA program for the Transport Workers Union, and is the designated counsel for the Transport Workers Union and the International Brotherhood of Electrical Workers, with members working at Amtrak, Conrail, Norfolk Southern, Metro North, PATH, CSX and New Jersey Transit. Jim was on the Board of Directors of the Academy of Rail Labor Attorneys from 1994 until 2001, and was President of the Academy of Rail Labor Attorneys from 2001 to 2002. He also served as a lecturer at the George Meany Center for Labor Studies, where he instructed union representatives on techniques for arbitrating railroad cases. He has represented hundreds of clients as an FELA attorney in Philadelphia.
We’ve handled hundreds of cases for injured railroad workers.
Over 100 settlements and verdicts for clients between $250,000 and $1 million.
What is the FELA?
The right of railroad workers to seek compensation for injuries suffered on the job is governed by theFederal Employers Liability Act, also known as FELA. Under FELA, injured railroad workers can sue for damages caused by their employers’ negligence or carelessness in state or federal court. The benefits available under a FELA claim are generally far greater than would be available under a state workers’ compensation claim. In FELA, the language of the Act is as follows:
…shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or in case of the death of such employee… resulting in whole or in part from the 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, works, boats,
wharves, or other equipment…
What types of injuries are covered?
Most FELA cases are easy to recognize. There has been a physical injury resulting from either a fall, a collision between trains or vehicles, an injury resulting from the violation a Safety Appliance Act causing a distinct physical injury such as a fracture of a bone, herniation of a disc, or head injury. When the negligence of the railroad causes a non-physical injury, i.e., emotional distress, fears, psychological problems of any sort, discrimination, or mental trauma resulting from witnessing a catastrophic injury of another employee, this causes uncertainty for both the union and the employee. These are what is known as psychic injuries, and whether or not they are compensable, and whether or not the employee can sue the railroad for the resulting non-physical or emotional type injuries depends on a wide variety of circumstances and details that may not make a lot of sense to the railroad employee
Types of Railroad Injuries
Accidents: Any railroad-related traumatic injury including slip, trip and fall accidents;
use of equipment; malfunctioning equipment; lack of equipment; locomotive
hazards; electrical shocks or other injuries stemming from work
Occupational Injuries
- Asbestos, mesothelioma from asbestos exposure
- Toxic chemicals exposure, cancer, Parkinson’s disease, tremors and memory loss from exposure to solvents
- Carpal tunnel syndrome or other nerve injuries from exposure to repetitive motions
- Hearing loss stemming from exposure to excessive noise
- Welding fume disease
- Diesel fume exposure
- Silicosis
How is FELA different than workers compensation?
While FELA is a negligence statute, FELA allows for a broad spectrum of damages, including full wage loss — past and future, full pain and suffering — past and future and full medical benefits — past and future.
What will I be compensated for?
We will help you recover compensation for your losses, including:
- Loss of past and future wages
- Any medical expenses (past or future) not covered by insurance
- Physical or emotional pain and suffering
- Permanent, partial or total disability
- Disfigurement or scarring
Most railroad employees understand that when they are physically injured while employed with the railroad, and that injury was in whole or in part caused by the negligence of the railroad, they are entitled to sue under the Federal Employer’s Liability Act (FELA), 45 U.S.C. 51 et seq. Most, but not all railroad employees understand that when there is an issue concerning a violation of their rights under the Collective Bargaining Agreement, this dispute is covered by the Federal Rail Safety Act. However, often railroad employees are confused, and not sure if they are entitled to sue their employer, or whether they must file a grievance when there has been a violation of work-related rules that have caused some sort of psychological, emotional, or non-physical injury. It is important for the union worker to understand his or her rights under FELA and the FRSA.
If You’ve Been Injured at Work, Here’s What to Do:
First, request and obtain medical treatment. Then, contact a union official or attorney.
- Keep a calm demeanor because what you do after your injury could significantly impact the outcome of your case.
- Request and obtain medical attention immediately.
- Contact a union official or union attorney right away. Photographs or evidence of the accident scene/equipment/condition should be obtained immediately so that the railroad cannot alter or change the accident scene.
- Consult with a personal injury attorney before giving an accident report; if management threatens you, do not compromise your job — fill out the accident report “under protest,” “while hurt and waiting for medical attention” or “under influence of medication,” whichever applies.
- If you are forced to fill out an accident report, make sure that you list all of your injuries, no matter how small, using general terms such as “neck,” “back,” “shoulders” and “knees,” as often times the full extent of your injuries are not known immediately.
- Make sure all aspects of the railroad’s negligence are stated, i.e., poor lighting, oil and grease, being rushed, debris in area, wrong tool, not enough help, too heavy, no job briefing, no instruction, against CFR or railroad policy.
- Make a list of any equipment involved, identifying the manufacturer and model of tools and equipment.
- Make a list of all witnesses.
- Keep copies of all paperwork, such as job briefings, repair forms or inspection forms for any equipment involved.
- Apply for disability to the U.S. Railroad Retirement Board
Were you injured in an accident in a company owned vehicle?
Can a railroad delay me from receiving prompt medical care?
No. They are required to insure prompt medical care under the Federal Rail Safety Act (FRSA).
Can railroad management accompany me to a medical appointment?
Under 49 U.S.C. 2225.33(a) (1), a railroad employee is afforded protection from an invasion of privacy by management. There are two exceptions: (1) if the employee free from duress permits a manager to accompany him, or (2) the injured worker is unconscious or otherwise unable to provide information.
What if I am intimidated from reporting an injury?
You need to work closely with your attorney and/or union to document what is occurring. Keep a detailed daily log of the names of all managers and employees involved. Document what has occurred, including dates, times and places as well as all equipment or tools involved. What can be done about this type of intimidation? A qualified attorney can go into court and put an end to the practice, but it is time consuming. In the mid-1990s, Mr. McEldrew was assigned to a task force that was organized to investigate a pervasive scheme by a major freight carrier that culminated in the firing of several mid- and high-level managers. The key to success is a unified effort by the employees, unions and attorneys.
YOUR RIGHTS UNDER THE FELA
It is important to speak to an attorney before you talk to any insurance company.
Your claim may be handled by the FELA, the collective bargaining agreement or your personal automobile insurance carrier. If you speak to them without legal representation, you may inadvertently allow the most likely to owe you compensation off the hook without realizing it. The situation is complex and should be handled with the advice of an attorney.
- If the accident is 100 percent the fault of your coworker who is operating the company vehicle, this can be handled as a normal Federal Employers’ Liability Act (FELA) matter.
- If the accident is caused by another non-railroad employee, there are several things you must know. Often your collective bargaining agreement will have a money provision up to $100,000 to compensate you for injuries. This usually applies to freight carriers, not commuter rail carriers such as SEPTA, NJT, PATH or Metro North. If the person who hits you is uninsured or has minimal insurance, you may not be able to pursue a claim against your personal automobile insurance company under your uninsured motorist or underinsured motorist coverage because most automobile policies have an “exclusion” to your UM or UIM policy called “auto provided for regular use.” What that means is if the company vehicle is provided for your “regular use” by the railroad, your personal policy does not apply. There are exceptions, so do not speak to your insurance company before speaking to an attorney, as insurance company employees are trained to trap you into a statement that will allow them to deny coverage under your policy.
The FELA provides for compensation to railroad workers who are injured on the job.
YOUR RIGHTS UNDER THE FRSA
The FRSA protects railroad workers who need medical treatment or are engaged in other protected activity.
What is the FRSA?
In late 2008, Congress passed a new law, Federal Rail Safety Act (FRSA, 49 U.S.C. 20109), which protects rail employees who engage in a “protected activity” and prohibits rail employers from interfering with the right of employees to seek medical help.
What is Protected?
- Reporting any type of injury, whether traumatic or “occupational”
- Reporting fraud, waste or abuse of public funds
- Refusing to work under dangerous conditions
- Refusing to work with unsafe equipment, track or structures
- Reporting any violation of federal law
- Furnishing or being a witness in a Federal Employers’ Liability Act (FELA) case
- Interfering, delaying or denying any medical treatment to an employee for an on-the-job injury is prohibited.
What Remedies are Available for a Violation?
If you are terminated or disciplined for any of the above, you are entitled to:
- Reinstatement
- Back pay
- Punitive damages of up to $250,000
- Special damages and fees including attorney fees, litigation costs and expert fees
You must file a claim within 180 days of any alleged violation.
