In 1908, Congress passed the Federal Employers Liability Act [FELA] found at 45 U.S.C. §51, et seq. It did so because of the importance of the railroad industry to the development of interstate commerce. No one can deny the importance of the roles that the railroads played in the development of the Wild West in the 1800s and early 1900s. However, the working conditions of the immigrants on the railroads could not be denied by anyone. People would get seriously injured or killed and they had no remedy. Often times the injuries would cause people to be just left behind to die; or illness would devastate entire crews. This horrible working condition was answered by Congress' adoption of FELA.
1. What is FELA?
People often mistake FELA with workers compensation. It clearly is not. Workers' Compensation is available to an employee who "suffers an injury while in the course and scope of employment". Notice in the previous sentence there is absolutely no discussion of "fault". That is because workers' compensation is not based upon fault. The employee could be one hundred (100%) percent at fault for causing his injuries and still collect all of his compensation benefits. In exchange for receiving those workers' compensation benefits, the employee gives up the common law right to sue his employer and accepts the workers compensation as the sole remedy when he starts his employment relationship.
On the other hand, FELA allows an employee to sue his employer and recover economic damages for injuries he suffered while in the course and scope of employment if, and only if, there is fault on the part of the railroad. That is why you need a FELA lawyer who understands your specific case.
2. What are the Differences in Damages between FELA and Workers' Compensation?
The economic compensation differences between FELA and Workers' Compensation are immense. In Workers' Compensation there is no lawsuit and the damages are statutorily set by the state that you were initially employed. For instance and just by way of example only, if you lose a finger, you get fifteen (15) weeks of "disability" [also called indemnity] compensation; if you lose a foot, you get 40 weeks of "disability" indemnity payments; if you injure your spine, you get 400 weeks of "disability" payments. Usually, the indemnity payments equal two-thirds (2/3) of your average weekly wage.
FELA allows you to actually sue the railroad for medical bills, lost wages, loss of earning capacity, pain and suffering, mental anguish, physical impairment, physical disfigurement, rehabilitation costs and other damages.
3. What Railroads are Covered by FELA?
Any railroad that is engaged in interstate commerce is covered by FELA. For instance, if a railroad has tracks that cross state lines, then it is covered by FELA. A "short line" railroad that only has a small number of track miles, e.g., 1, 2, 3 or 4 miles of track, is also covered by FELA, if its tracks connect to other railroad's tracks that do engage in interstate commerce.
A list of well known railroads that are Class I, II & III railroads covered by FELA is: Union Pacific - UP; Burlington Northern Santa Fe - BNSF; Norfolk Southern - NS; Kansas City Southern - KCS; CSX Transportation; AMTRAK; Metro North; Canadian National Railway -CN; Canadian Pacific Railway - CP and the Soo Line Railroad.
4. What are Claims Agents and Do You Need a FELA Lawyer?
The minute you get hurt, your supervisor reports your injury and a Claims Agent is dispatched to take a statement from you. That statement is to try to place fault on you. As stated above, FELA is a fault based system and if the railroad can place 100% of the fault upon you, then it does not matter if a jury awards a million dollars, you will get zero dollars. Most railroad employees will not report their injury for fear of getting fired, terminated or a "rule" violation. The claims agent is not your friend and does not have your best interests at heart. They may say they do but they do not.
You need a FELA attorney that is experienced in representing FELA employees. The Unions are very strong in the railroads and these unions have selected certain law firms around the country to represent their members. These law firms are called Designated Legal Counsel [ DLC ]. Do not be forced to choose a DLC as your FELA lawyer. There are many non-DLC that practice excellent FELA law but just, for whatever reasons, have not been designated. You need a FELA claims attorney that will place their economic resources behind you to fight the railroad and their legal counsel.
5. What Types of Railroad Employees are Covered Under FELA?
All the crafts of workers are covered and that includes Maintenance of Way, Signalmen, Electricians, Engineers, Conductors, Switchmen, Carmen, Brakemen and all other type crafts.
6. What is the Statute of Limitations in a FELA Claim?
Since the law governing a FELA injury is federal law, the claim is governed by a three (3) year statute of limitations. Thus, if you were injure on September 1, 2009, you must file a lawsuit by September 1, 2012. However, it is essential that you get the right medical care early to assess your injuries. Though you can wait 3 years to sue, it is not recommended.
7. How Will I Pay My Bills If I Am Off Work While My Claim Is Pending?
While you are disabled and cannot go back to work, you are entitled to receive railroad disability benefits. Additionally, most railroad employees have a temporary disability policy which will pay benefits for up to two (2) years. Finally, some lawyers, based upon the state where they practice, are ethically permitted to advance you funds to pay your necessary bills. Some law firms do this and do not even charge interest on those advances. These types of client advances are much preferred to utilizing loan companies that are making advances on personal injury cases such as a FELA case but they are charging very large percentages on interest and processing fees.
8. What is a Cumulative Trauma or Repetitive Injury?
Some FELA injuries do not happen in "one event". Instead, the injury occurs over time; it is, in essence, a continued wear and tear of the body. These types of injuries are classified as cumulative injuries. They can range from as small as carpal tunnel injuries to spinal injuries such as herniated disks from whole body vibration. Clearly, you specifically need a railroad injury attorney to handle this type of claim as often the treating physician does not make the "connection" of the injury to the working condition because the doctors are not aware of the vocational aspects of the particular job requirements of the railroad employee. Additionally, the statute of limitations can almost always be an issue in these types of claims as the employee has "notice" that they have an injury but they do not move forward at the time they have the notice.
