Navigating Railroad Injuries (FELA) And Employer Retaliation

Actions to take if you have been injured

1. Immediately notify your supervisor and complete a personal injury report. Technically you have 72 hours to complete the report, but do not delay in completing it out of fear or at the direction of the railroad. Even if your injury seems minor, failing to report it promptly can raise questions of whether it happened at work and the railroad may accuse you of falsifying your claim.
   1. Complete the form honestly and completely.
   2. Immediately request and keep a copy for your records.
   3. Do not give a recorded statement or perform a reenactment of the incident causing the injury. You are not required to make any other statements other than completing the personal injury report. It is key to contact your union and an experienced FELA lawyer at our firm before giving any statement.
2. Seek medical attention of the doctor of your own choosing and provide the doctor with a complete and detailed explanation of the accident. Tell the doctor not to speak to a railroad representative about your care.
3. Contact your union representative.
4. Contact our firm at 402-817-2717 so we can gather and document all the key facts of your injury to protect your interests. Knowing exactly what you were doing, who you were with, how the accident happened, how you felt immediately after, and the railroad’s conduct is key to our ability to protect you. If you cannot consult with us immediately, document everything for yourself separately from the personal injury report. We are here to provide you with reliable, confidential, free advice to ensure you are protected.
5. Take pictures of anything or any place that may have caused or contributed to your injury as soon after the accident as possible. This will prevent anyone from altering the scene and later claiming you are being dishonest. If you cannot take the pictures for any reason, ask a trusted co-worker to take pictures.
6. Write down the names and contact information of all people who witnessed your accident or injury and all co-workers you were working with when you got hurt. Keep this and provide it to us so we can gather information from those people before their memories fade.
7. Be wary of claims agents in this process. They appear friendly and helpful but, without a doubt, they are there to protect the railroad and not you. Your protection comes from your union, your lawyer, and knowing your rights.
8. Apply for Railroad Retirement Board sickness benefits that you have earned through your hard work for the railroad.

Things to Avoid

1. Volunteering any information beyond what is required by the personal injury report.
2. Allowing the railroad to influence or direct what you do or do not put in your personal injury report.
3. Believing that you should not report your injury or that you will be punished if you report your injury.
4. Believing you should not contact your union or a lawyer.
5. Allowing the railroad, your supervisors, or claims agents to direct or participate in your care. This includes allowing the railroad to choose your doctor or making you believe you have to go to a “railroad approved” doctor. Your doctor and your treatment are yours alone.
6. Allowing the railroad, your supervisors, or claims agents into the treatment room while you are getting care. No one from the railroad is allowed to attend your medical visits and you should respectfully ask them to leave if they come into your treatment room at any time.
7. Participating in a reenactment of the injury.
8. Signing a release to allow the railroad to access your medical records.

How to fill out a personal injury report

It is important to remember that this document is for the railroad’s purposes. What you say and do with it is important. It is important to understand what you are answering because what you say and do not say in the report will certainly be used in the future.

The forms provide a small amount of space to describe what happened. They are designed so that if you answer without enough detail, it might appear that there was no fault by the railroad.  Be as thorough as necessary to adequate describe what happened. But also be as brief and to the point as possible by not volunteering any information not requested by the form. If someone from the railroad attempts to influence or direct you how to complete the personal injury report, you should include that in the report.

Remember, an injury has just occurred so you may not think of everything when describing the accident so use open-ended phrases like “etc. …” at the end of your description to allow you to later follow up should additional items come to mind in the future after reflection and the urgency of the situation has ended.

The personal injury report typically asks whether this is an illness or condition as opposed to a specific event that caused an injury. This question is directed at two different types of injuries: those that happen over time with repetitive, cumulative trauma or over-use (carpal tunnel, degenerative injuries to the neck, back, spine or other joint) versus a one-time incident that occurred to cause an injury. If it is not a one-time event/incident that caused the injury, you will be asked when you first noticed problems and when you first went to get treatment. Be careful because you have only three years from when you first started having symptoms to bring a lawsuit against the railroad. If you are not sure, don’t guess. And under no circumstances should you answer in a way that would put you too close or beyond the three-year period without first consulting an experience FELA attorney at our firm or your union. Failing to consult with us could bar your recovery.

You will also be asked to described your injuries or illness/condition. You need to mention all areas of your body that are hurt, but you do not need to give a specific diagnosis or use medical terms. That is for your medical providers to determine.

Another common question you will be asked is to describe fully how the injury, illness, or condition occurred. If it is an acute or one-time incident/event, provide the general facts of how the injury happened. Realize that you need to be accurate and ask yourself if you are writing anything that could be used against you later. The shorter and more to the point the better, but make sure to include all key details. You, your union, and a lawyer from our firm can more fully develop your claim at a later time and provide the necessary details. If you are confused or unsure of how to complete the personal injury report, you have the right to consult your union and your lawyer before completing it.  If your injury is a condition or illness that developed over time, it is important to note that the constant demands of the job, repetitive nature of the job, use of heavy equipment and tools, vibrations and other forces on your body, etc. resulted in your injuries.

You will likely be asked some form of the following questions:

1. Was the accident caused by the conduct of another person?
2. Could you have prevented your injury?
3. Was there any defect/malfunction of/with the equipment or work procedures?

If you answer “yes” to any of these questions you are then given a short amount of space to describe your answer. Give only the description necessary but use additional paper if needed.

It is critically important that you think of any way that any other person—including the railroad generally—contributed to your injury and that you answer “yes” if necessary. This does not just mean that a co-worker did something actively to cause your injury. Instead, ask yourself questions like:

1. Is there a better way to do the job that the railroad failed to recognize or explain?
2. Should there have been more manpower to do the job?
3. Could the railroad have given a job briefing to better explain the job?
4. Did the railroad provide adequate training to do the job or to understand the risks and hazards of the job?
5. Is there anything at all the railroad could have done to prevent the injury?

In answering whether you could have done anything to prevent your injury, you should always answer “No.” Answering yes will inevitably result in the railroad noticing you for an investigation. Whether it is for failing to be “alert and attentive” or a violation of a rule, the railroad will capitalize on this to blame you for your own injury. Do not take the bait and protect yourself.

With respect to whether any equipment or work procedure caused or contributed to your injury, you should typically answer “Yes.” When describing the equipment or a procedure, you should ask questions like:

1. Was there safer equipment?
2. Did we have enough manpower?
3. Did we have enough time?
4. Were the walking or working conditions poor?
5. Was the lighting poor?
6. Was I given a proper job briefing or training to handle the task?
7. Did the railroad give me a task that was more than one person could handle?
8. Did the railroad inspect the workplace or equipment for hazards that were involved with my injury?
9. Did the railroad give me a safe place to work? What could the railroad have done to make it safer?
10. Was the equipment not working properly in any way. Think about whether you need to “tag out” or “bad order” the equipment so that others do not get hurt and to avoid an accusation in the future that you did not see a problem with the equipment.

There may be additional things to consider or that may come to your mind, but the above list should get you started in the right direction to making sure your personal injury report is completed properly and thoroughly.

You also should be careful to note the following types of things on the personal injury report:

1. The time of the incident.
2. The date of the incident.
3. The specific location of the incident (MP, asset number, etc.).
4. The weather conditions.