Paul Kelley from Satterley and Kelley, a personal injury law firm, talks with John Maher about railroad workers and FELA claims. He explains the origin of FELA. Then, he outlines the differences between FELA and worker’s compensation. Finally, he explains what to do if you’ve been injured while working for the rail companies.
John Maher: Hi. I’m John Maher and I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 30 years of collective experience in handling personal injury and wrongful death claims. Today, we’re talking about railroad workers and FELA claims. Welcome, Paul.
Paul Kelley: Hi, John. How are you doing this morning?
John: Good, thanks. So Paul, I’ve heard that if a railroad worker gets injured at work, he or she can’t file a Kentucky worker’s compensation claim. Is that true?
Paul: That is true. Railroads have an interesting history in this country, and many decades ago, Congress, probably in conjunction with the railroad companies, came up with an alternative source of recovery for railroad workers that got injured. And so they devised the Federal Employer’s Liability Act, which also is called FELA for short, and it is the only mechanism that most railroad workers can recover for a work-related injury.
And it’s pretty broad in terms of what injuries and what activities are covered by FELA. But the bottom line is that if you’re in Kentucky or if you’re in Illinois or Texas, California, wherever, and you’re a railroad worker and you’re injured at work, you can’t pursue a case under your state worker’s compensation laws. You have to pursue a case under the FELA laws.
John: And was that created in order to make sure that railroads couldn’t go into bankruptcy and disappear and then you have all kinds of problems with the infrastructure in the country and things like that? What’s the reason for that?
Paul: Well, it’s kind of difficult to completely understand what the reason for it was, but it was a result of a lobbying effort. There’s going to be lots of injuries that occur on the railroad. I think that it was in part so that employees may not make as many claims as what they would under a worker’s compensation scheme.
For a worker’s comp injury, and maybe we’ll talk about this, you can cut your finger, you can make a claim, and I think that there was probably some desire to not have to deal with thousands of small claims. And I think the desire was that the railroad companies would take care of employees that suffered those kinds of injuries and that the injuries that would be most likely to go to litigation would be significant injuries that had a big impact on both the employee and a potential big liability impact on the railroad.
It also was intended, I think, to give the ability for more compensation to the employees, and we’ll talk about that in a bit. But under the worker’s comp scheme, there are some big differences in terms of what damages you can get. So, I think there’s a lot of good components for employees and a lot of bad components for employees, and then on the same side, I think there’s some pros and cons for the employers as to the existence of this special statute that exists for them.
John: Right. Why don’t you go ahead and tell me a little bit more about that and about the differences between a worker’s compensation claim and a FELA claim?
Paul: Sure. So under Kentucky Law, when we’re talking about a worker’s compensation claim, the most significant component to it is it’s no fault, so the employer does not have to be at fault in any way to be responsible for a work-related injury. The employee’s only burden is to prove that he or she suffered a workplace injury and then what the damages were for that particular injury, so that’s an important component.
Under FELA, the plaintiff, the injured worker, still has to prove that the railroad was negligent in some way in causing the injury, so it’s not no-fault. There has to be fault. So sometimes, injuries occur that might be the fault of a contractor, it might be the employee’s own fault, and it doesn’t matter. If it’s a workplace injury, under the worker’s compensation scheme, the employer’s still responsible to pay the employee, but under FELA, you have to prove that the railroad was slightly negligent, and that’s a good thing in terms of what the employee has to prove.
If it’s a normal negligence case, we’re taking the railroad out of it, if it’s a normal negligence case, the standard for proving negligence is 51%, so 51% more likely than not, the railroad caused an injury. Under FELA, the railroad just has to be slightly negligent, just a little bit negligent in order to cause the injury. So there could be a whole bunch of other causes, but if the railroad is 1% on the hook, then the railroad’s on the hook for the plaintiff’s entire damages, so that’s a good thing. But an employee at the end of the day for a FELA claim still has to prove that the employer was at fault, so that’s a big distinction.
The other big distinction between the workers’ compensation scheme and the FELA scheme is what you can get in terms of damages. Now, under… And I’ll stick with Kentucky where I’m at, for a workers’ compensation claim, the employee can get medical expenses, all of their expenses should be paid. They can get lost income, but there’s a cap on that. It’s capped at a certain dollar amount. There’s a maximum dollar amount and there’s a lot of people who make more money than that in their job, but they can’t get more than that because the statutory rate says this is what you get.
And then there’s temporal limitations as well under the comp scheme. Under Kentucky, I think it’s 425 weeks total that people can get compensated for their lost income, regardless of what the injury is. And you get no pain and suffering in worker’s comp. There is a survivor’s death benefit if somebody dies as a result of the injury, and there are no punitive damages.
So worker’s comp, good because you don’t have to prove anybody was at fault and you should get compensated for your workplace injury, but there are significant limitations on what you can actually recover from those injuries. And what I’ve always said about the workers’ compensation scheme is it’s great for the person who suffers a pretty minor injury that’s not going to permanently disable them, but it’s not real good for people who suffer catastrophic injuries and can’t ever go back to work because their damages are, in most circumstances, going to be significantly limited. And there are exceptions, but for the most part, it’s pretty limited compensation.
Under FELA, you get lost income. There’s no natural statutory limitation on what that lost income is. Under most railroad retirement plans, most people are eligible for retirement at age 60 and after 30 years of service, so they have to have both of those two things – 30 years of service and be 60 years of age – and they can start drawing their pension and benefits, but it doesn’t mean that they have some natural limitation as to their ability to labor and earn money.
People have that ability far beyond the age of 60. And so you can recover for both past and future lost impairment to the power of labor and earn money in a field of claim. Of course, you can get your medical expenses as well.
And then the main damage that you can get in a FELA claim that you can’t get in worker’s comp is pain and suffering, and pain and suffering is the physical and mental pain and other suffering associated with an injury. So imagine someone who suffers a brain injury. They’ve been deprived of their ability to work and do the job. Most people, if you can believe it, most people that I’ve represented, and we’ve represented hundreds of railroad workers in the past, they love their job. It was a dangerous job. I’m not sure that I would’ve loved their job, but they loved their job.
Paul: And it’s been taken from them. We’ve had clients before who’ve suffered amputations as a result of injuries that occurred on the tracks. They can’t work anymore so they can’t earn a wage, but obviously it goes beyond that. They can’t do any of the things that they enjoyed doing prior to the injury, and so they can recover for that pain and suffering as a result.
Now, under FELA, there are no punitive damages, so that’s a big item of damages, and I suspect that that was in the negotiation between the railroad workers and the railroad companies way back when FELA was enacted. So you can’t get that item of damages in either kind of case, but certainly you can get pain and suffering. And the impact of that is that the people who’ve suffered FELA injuries frequently get seven figure or eight figure verdicts in cases against their employers for the tremendous pain and suffering that they endure as a result of whatever that work related injury is. And at a minimum, they have the ability to get it, and that’s the important part of it.
So from our standpoint, railroad work’s dangerous work, and while I wish that FELA had a no-fault scheme to it, I personally think that it’s better to be able to get that full range of damages in a FELA case than what you can get in a worker’s compensation claim, and so railroad workers can hopefully get full recovery for an injury instead of partial recovery.
John: So what are some of the types of injuries that railroad workers can file a lawsuit against their railroad employers for?
Paul: So, gosh, anything. We have represented a number of railroad workers over the years. We’ve had brain damage cases from chemical exposure. We’ve had amputation cases from people whose legs were cut off as a result of being run over by a train on the tracks.
We see a lot of repetitive trauma cases, so people who develop carpal tunnel and other problems with hands and feet and wrists and elbows from the constant repetitive motion they have to make or the constant vibrating that’s associated with doing their job. A lot of noise loss or hearing loss claims. Railroads are frequently in very loud environments with lots of heavy machinery being operated and railroad workers have suffered full or partial deafness as a result.
We have litigated a number of cases for railroad workers that were exposed to asbestos in the railroad. Asbestos was all over railroad shops. For a period of time, it was all over rail cars and engines. It was utilized in brakes. Diesel fumes, diesel fumes have caused lung cancer in the past, and people are exposed to a lot of diesel fumes in the shops where these trains are worked on and cleaned and those sorts of things.
And then just your other, somebody falls and breaks a leg, breaks an arm, but any injury that can be causally connected to work that was being conducted at a railroad shop or on a railroad track or on a railroad car are potentially compensable. Again, we have to prove some fault on behalf of the railroad in order to recover those damages.
John: Talk a little bit more about the type of damages that you can claim in a FELA case for an injured railroad worker, because you said that punitive damages for example are not allowed, so what types of damages are allowed?
Paul: So the main are going to be past and future medical expenses, past and future lost wages, and then the physical and mental pain and suffering. You can get travel expenses if you have to travel out of state or out of your community for medical treatment, and that happens a lot.
For example, we have clients who’ve developed mesothelioma as a result of railroad work, and Louisville, Kentucky, while it has a lot of great physicians, we don’t have a mesothelioma cancer center here and other states do. So folks will go to Massachusetts or California or North Carolina for specialized treatment, and so they can get all those kinds of expenses. Basically, any loss that someone can attribute to injury that they suffered at the railroad is potentially open for compensation, but mostly what we see are the medical expenses, the lost wages, travel expenses and pain and suffering.
John: And is there a statute of limitations for filing a claim against a railroad company?
Paul: Yeah, so that’s another, what I think is good news. Under FELA, railroad workers have three years to file a claim, and it doesn’t matter whether it’s personal injury or a wrongful death case. Generally speaking, people are going to know that they were injured the day it happened, but there are some situations, the chemical exposure cases, the asbestos mesothelioma cases or lung cancer cases where they don’t find out for many years down the road. And so there is something called the discovery rule.
We have three years from the date that we know or should know that we’ve been injured and what the cause of that injury is. So if you’ve got someone who develops cancer 20 years after they left the railroad, their cause of action begins when they develop that cancer and when they’re able to figure out what caused it.
Same thing with carpal tunnel, most people don’t realize that they have a repetitive trauma injury, and then all of a sudden, one day they realize, “I don’t get it. My hands and wrists hurt like heck,” and then somebody connects it to the work on the railroad. And so they’ll have three years from when they figure it out or should have figured it out in order to file such a claim.
Now, the one big caveat is that for a wrongful death case, if the person doesn’t file a claim within three years of it occurring in their life, then there is no wrongful death case. They have to file the personal injury case within three years of them getting it, whatever the injury or disease is. But if they don’t file it and the person dies, say at two years, then they still have time to file the wrongful death. It’s just if that statute of limitations expired in their life, then there’s nothing that can be done about it in their death.
John: Right. So the people who are handling their estate, if the three years have already gone by and then that person passes away and then their family decides, “Oh, you know what? We probably had a case here that we could have pursued,” but three years have already gone by, it’s too late.
Paul: Unfortunately, they’re probably going to be out of luck.
John: Okay. And the three years to file a claim is longer than the typical statute of limitations, at least in Kentucky, right?
Paul: At least in Kentucky. Kentucky, we only have a one-year statute of limitations, which gives us very little time to investigate and determine who all the appropriate parties are, so at least under FELA, if you’re filing against a railroad company, you have three years.
Now, again, there are some work related injuries that the railroad may have been responsible for, but there could be somebody else that’s not the railroad company. You still have one year to pursue anybody but the railroad company, so I want to make sure that that’s clear. But if you work for railroad A and you think that railroad A caused your injury, you have three years to pursue that case against railroad A.
John: Okay. And if you’re a railroad employee and you suffer a workplace injury like we mentioned, what should you do? What are the next steps?
Paul: Absolutely, you need to contact a lawyer immediately, of course, depending on what the injury is. Getting your medical situation under control and making sure that you understand what your injury is and what the treatment requirements are, that’s certainly critical. But again, even though it’s three years to pursue a claim, there could be another actor involved that’s going to have a one-year statute of limitations, so you’d need to talk to a lawyer who can begin investigating that part of it.
Lots of times, railroads will try to settle with their employees before they hire a lawyer, and they’ll dangle some amount of money that might not seem unreasonable to the employee at the time but is not at all representative as to what their damages really are or what their case is really worth, and they’ll sign releases and that will preclude them from being able to pursue a case.
If the employer is offering money early, I usually tell people, they’re doing that for a reason. It’s not because they think your case is terrible. It’s not because they think that your case has no merit whatsoever. It’s because they do think that it has merit and they’re trying to buy you off early before you have an opportunity to talk to a lawyer and find out what your real rights are.
The other problem with that is, and we’ve seen it happen a lot, and it happens, they try to do it to me when I represent somebody, is that they try to give you this release that will release them from liability for things you don’t have, for injuries that haven’t happened. So you’re pursuing a hearing loss case against the railroad, and instead of giving you a release that releases them from liability for the hearing loss, that release is also going to say, “And oh yeah, if you get mesothelioma, if you get brain damage, if you get leukemia, lung cancer, carpal tunnel, you’re going to release all of these things too.”
And we fought over the years to have releases like that declared null and void, as not being appropriate, and there’s certainly a lot of case law that protects workers, but there’s a lot of case law that doesn’t. And so yeah, $25,000 may seem like a wonderful thing, but is $25,000 worth it to sign away your rights for a cancer claim that’s going to inevitably cause your death? Nobody would make that bargain.
John: Or even just an injury that makes you not be able to work for 10 years or more.
Paul: Absolutely. So railroads I think do try to take advantage of their employees a little bit and they’ll get somebody trusted involved to make the first contact, and then before you know it, a lawyer’s involved, and before you know it, a seven-page release that releases the world is put in front of them and with a check right there ready to hand to them, and they sign it away and before you know it, they’ve signed away or potentially signed away a lot of rights.
And it may end up being that there are reasons to go ahead and take that money, but the release can always be tweaked. Nobody can make you sign away your rights to something that hasn’t happened yet, and if they are making a settlement for hearing loss contingent upon you signing away your rights for lung cancer, mesothelioma, brain damage or some other catastrophic injury, well, don’t make that settlement. We’ll beat them.
But it’s absolutely critical to reach out to an attorney to find out what your rights are, reach out to someone who’s had a history of litigating cases. That release issue, it’s a big issue, and I see it from clients that walk in my door, and about six months later after I filed the case, the railroad company will drop this release on me. And every time, I’m like, “Why did somebody let them sign this release? This is absolutely outrageous. What happened here?
And so unfortunately, the world was different 20, 30 years ago and a lot of releases like those were signed, and hence, a lot of future claims were resolved just like that, so that’s tough. But the only way that you can really figure out what the full range of rights you have is to talk to a lawyer, and it could very well be that you don’t have a lot to worry about and take whatever money the railroad’s offering and be done, or it could be that you’ve got a massive case that could result in millions of dollars of damages and you’re giving them up by either not contacting an attorney or not contacting the right attorneys.
John: All right. Well that’s really great information, Paul. Thanks again for speaking with me today.
Paul: Thanks, John, I appreciate it.
John: And for more information about personal injury and wrongful death cases, visit the law firm of Satterley & Kelley at satterleylaw.com, or call (855) 385-9532.