Login
or
Register
Home
»
Trains Magazine
»
Forums
»
General Discussion
»
FELA and workers compensation
Edit post
Edit your reply below.
Post Body
Enter your post below.
[quote]QUOTE: <i>Originally posted by gabe</i> <br /><br />I was just reading the 4.1 million dollar jury award regarding the Union Pacific engineer--in a St. Louis court, even though the injury occurred in Iowa. <br /> <br />First of all, let me say I hope the employee gets better and I wish him nothing but good. <br /> <br />But, this brings me to something about which I have always wondered. FELA allows various transportation employees to sue their employer in Tort rather than requiring the employees to use the workers compensation board like normal non-railroad employees. <br /> <br />This recent jury award really makes me wonder how much we are hamstringing the rail industry by our insistence with sticking with FELA. <br /> <br />Why are railway workers any different than highway construction workers, equipment operators, welders, etc.? Presumably, the Workers Compensation Act was passed to lower the transaction costs for American businesses when dealing with injured employees. Why don't railroads receive that benefit when other dangerous occupations do? <br /> <br />For all of the railroaders out there who are saying wait a minute!: I am not suggesting that you should be entitled to <b>any less </b>recovery--although you can rationally argue that the Workers Compensation Act does that. <br /> <br />However, what the Workers Compensation Act also does is lower the amount of money that lawyers get paid, precludes lawyers from forum shoping--like bringing a lawsuit to St. Louis when the accident happened in Iowa because lawyers know St. Louis juries award bigger verdicts. <br /> <br />I am not asserting that railroaders should receive less injury recovery. I am just saying that I don't see the difference between railroad workers and other workers. <br /> <br />If the workers compensation act does not provide adequate recovery for railroaders, then it doesn't provide adequate recovery for other workers either and the government should allow all workers to sue in tort like railway workers and do away with the Workers Compensation Act. <br /> <br />If the Workers Compensation Act does provide adequate benefits to injured workers but allows companies to escape excessive transactions costs for attorneys, why shouldn't railroads have the same benefits that other industries have? <br /> <br />I guess what I am asking is why are railroads treated differently now? <br /> <br />When FELA was passed there certainly was a need for it. Railroading was one of the most dangerous industries and various states would pass virtually non-existent worker recovery laws to entice railroads to build in their state. Now, railroading is no more dangerous than many other industries that are not covered by FELA, and I don't think we are going to see too much more track construction. <br /> <br />Gabe <br /> <br />P.S. Once again, I am not saying that rail workers should be deprived of injury compensation benefits, I am wondering what makes them different. <br />[/quote] <br /> <br />Gabe- <br /> <br />Obviously you are aware of the issue of compensation of injured railroad employees. I am of two minds on the subject. As you know I am an attorney who has served in several rail related capacities both labor and management. I have also represented a railroad in an FELA matter. Lastly, as an employee I suffered a serious injury in the line of duty and sued my employer under FELA. <br /> <br />FELA is an old law that was made when there were essentially no other laws to protect workers. Choices were made creating a framework that allowed compensation of employees through the existing judicial system. Obviously, issues have developed over time with this process. As society has canged and litigation has become more of a lottery to many and attorneys, particularly plaintiffs attorneys have amassed large fortunes handling FELA cases, various special interest groups have been created that rely upon the continued existence of this system to the detriment of the injured employee and the railroad. <br /> <br />Who are these folks? Insurance companies who make money on increased FELA premiums and restrictive rules, certain labor unions who have made it a practice to illegally and unethically "refer" (steer) employees to certain "Approved" attorneys. Plaintiff attorneys who charge high contingency fees on FELA cases despite the fact that in FELA cases including those under the Boiler Inspection Act are among the easiest to prove negligence of any legal theory, defense attorneys who charge insurers high fees as a specialty area, and of course the legions of expert witnesses who often go to the highest bidder. In case you are wondering, all these folks plus the employees and companies themselves lobby politicians heavily to preserve the status quo. <br /> <br />Is railroading a dangerous occupation. It sure is. I'll be happy to show you the scars. I was one of the lucky ones who made it back. About two months before my injury I remember being called to work on my pager by the crew dispatcher. It wasn't a special call, just a regular train. I had just finished shaking the hand of the President of the Class 1 Railroad I worked for. The occasion? A funeral for a colleague killed in the line of duty when a loaded grain hopper rolled off an icy crossing and landed on him crushing him to death. He had been a promoted Engineer for three weeks. I was a newly promoted conductor at the time. He couldn't yet hold the Engineer's Extra Board and took a call as a conductor. His brakeman that night had 35 years on the railroad and jumped free of the other side of the same car. He retired on a permanent disability . He couldn't come back to work. He suffered no physical injury beyond some bumps and bruises. <br /> <br />Are there abuses of the system? You bet. Like the Superintendent who followed me to the hospital and argued that the RR wasn't responsible for my injury with hospital staff. Or how about the Claim Agent who came to see me the next day after I spent 4 hours in joint surgery and was hooked to a powerful morphine drip wanting a written statement. Luckily, I still had enough on the ball to refer him to my wife, the other lawyer in the family. She told him if he showed his face again he would face criminal charges. He didn't return. <br /> <br />How about a MOW employee I knew who broke his leg in a weekend game and came to work monday for two hours and then fell and claimed the injury. Or in one FELA case, the conductor from a different railroad who was leaving interchange cars and claimed to have tripped and fallen suffering a broken leg. Problem was his fracture didn't match the mechanism of injury. His spiral fracture demonstrated he had in fact stepped off moving equipment in violation of safety rules causing his own injury. There are no sacred cows in the FELA game, just many who have violated the old maxim of equity that if one seeks equity he must come with clean hands. <br /> <br />There isn't any easy answer to fix FELA. Too many entrenched interests. Worker's Compensation systems are no better. In some cases, particularly California and other high cost states Comp can actually be more expensive than FELA. Remember too that unemployment insurance and disability (sickness) insurance is not handled through the States on the railroad it is under the jurisdiction of the U.S. Railroad Retirement Board, a Federal Agency that also handles railroad employees retirement instead of the Social Security Administration. As interrelated as the railroad system is, it is difficult to change any one component without other more broad and less predictable effects. <br /> <br />Reform is needed. The problem is that there is no real political will to accomplish it. Unions that supported railroad retirement reform a few years ago that was also supported by railroads as it saved money won't support FELA reform for some of the reasons above. Accordingly, any changes are unlikely in the near term. <br /> <br />LC
Tags (Optional)
Tags are keywords that get attached to your post. They are used to categorize your submission and make it easier to search for. To add tags to your post type a tag into the box below and click the "Add Tag" button.
Add Tag
Update Reply
Join our Community!
Our community is
FREE
to join. To participate you must either login or register for an account.
Login »
Register »
Search the Community
Newsletter Sign-Up
By signing up you may also receive occasional reader surveys and special offers from Trains magazine.Please view our
privacy policy
More great sites from Kalmbach Media
Terms Of Use
|
Privacy Policy
|
Copyright Policy