FELA and workers compensation

Trains Magazine General Discussion
1

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.

First of all, let me say I hope the employee gets better and I wish him nothing but good.

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.

This recent jury award really makes me wonder how much we are hamstringing the rail industry by our insistence with sticking with FELA.

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?

For all of the railroaders out there who are saying wait a minute!: I am not suggesting that you should be entitled to any less recovery–although you can rationally argue that the Workers Compensation Act does that.

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.

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.

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.

If the Worke

2

Just wondering…
When wasn the last time a employee, injured and covered under workmans comp, had a trainmaster and claim agent threaten their job if they( the injured employee) wanted a ambulance.
When did a employee covered under workers comp have their co-workers job threatened along with their own?
How often do a WC covered employee have a trainmaster accompany them to the hospital, (of the trainmasters choice) to be treated by a doctor of the employers choice, follow them into the emergency room, recomend treatment, and advise the attending doctor how to word the emergency room report so as to indicate the treated employees injury was either self inflicted, or the result of the employees own negligence?

How often, under the workers comp system, are the employers allowed to conduct their own internal investigation, alter or remove evidence, exclude law enforcment officers from the scene, deny the injuried employee’s attorney access to the same scene, all under the guise and protection of federal regulations?

Switching Operations Fatality Analysis…(SOFA) reports that in 1992, 14 of us died.
'93-15.

Between 1992 and today, in switching operations alone, 129 of us have been killed.

This year has been pretty good, so far, only 5 of us died in switching operations.

By the way, these figures include only switching fatalities, not total railroads deaths.

Between 1992 and today, how many welders have been killed because of their work enviroment and badly maintained equipment, not to mention the number of hours they are required to work?

Dont know of any pool service for welders, no forced double outs.

Cant remember when any construction worker was required to ride the end of , say, a construction crane, in the rain or snow, for several miles.

Dont know how many iron workers work 12 hours straight, then have to be back to work in 12 hours.

FELA exsist because rail

3

I am not disagreeing with Ed, however I would like to see something else a little more equitable (Worker’s Comp ain’t the ticket either)…

Have seen in my career more than one employee get screwed by FELA’s adversarial system while a set of lawyers made money hand over fist. (Folks that really needed the help got little or none because of the vagarities of the TORT System)

Also have seen multiple cases of faked injuries with sham doctors, chiropractors and lawyers involved.

There has to be a better system in play somewhere than the jaded, antagonistic one in play now with FELA.

[banghead][banghead][banghead]

4

I’m not too sure why the American people haven’t advocated for the WCB. In Ontario anyways, the WCB was introduced by a conservative right-winged government as a way to save employers a lot of money. I figured since the U.S in general is more capitalist oriented than Canada, why wouldn’t employers be more in favour of having a WCB even if it would be a state by state thing and not a national federal legislated program. For an employer it would be cheaper than being sued for millions and cheaper for the taxpayer that would have to spend the taxes on court proceedings of limitless litigation.

5

Not totally disagreeing with Gabe…

Just making a example of how some of it works.

And no, Workers Comp will not work, in Texas, which, by the way, now allows employers to opt out of workers comp.

They now can ask new employees to sign a waiver, agreeing not to sue the employeer, in lieu of wage maintaince and some(not all) medical expenses.
Insurance rates and current workers comp fraud has forced some companys to relocate outside of the state.

Currently, FELA is just about the only way the carriers can suffer punitive damages for allowing some of the work practices to continue.

Fact is, I cant sue Trinity Rail car, or AFC, if the hand rail fails and I get hurt.

Cant sue the maker of the rail, ties, or joint bars when the track fails, nor the maker of turnouts and switches.

Cant sue Union Switch and Signal if the signal fails and I get rear ended.

Cant sue Mudchicken, if he does his job badly and the alignment is wrong, (sorry MC) and we derail, and I lose a leg.

So where does that leave me?

What happens if I am injured to the point I can’t resume my duties?

I can apply to the Railroad retirement board, but my benifits would be denied, because I dont qualify yet, dont have the years of service in.
And if I did qualify, the amount would be less than minimum wage…

And no matter what they say publicly, the carriers like it being kept in house, with out the oversight of John Q Public.

Which allows them the ability to apply the tremendous amount of pressure on the injured employee that they do.

Its a business decision, just like grade crossing safety, or the lack of.

For the carriers, its cheaper to play the odds that they can force a settlement, instead of addressing the root of the problem.

So…?

Anybody got a workable solution?

6

I don’t really see one. No options really with the current system at least not one that benefits the worker.

7

[quote]
QUOTE: Originally posted by gabe

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.

First of all, let me say I hope the employee gets better and I wish him nothing but good.

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.

This recent jury award really makes me wonder how much we are hamstringing the rail industry by our insistence with sticking with FELA.

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?

For all of the railroaders out there who are saying wait a minute!: I am not suggesting that you should be entitled to any less recovery–although you can rationally argue that the Workers Compensation Act does that.

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.

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.

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 w

8

“No political will”-why do I here that a lot? What are thease politicians good for anymore?

9

Most politicians are worthless, they are more worried whether they can keep their job than serving the people.

WE have workmans comp here in Louisiana. I have never made an employee claiming injury go to a certain doctor or hospital. The only time a supervisor may accompany the employee is when the employee requests that the supervisor either go with him or drive him. If I find a supervisor harassing an employee over this, well, let us say it will be along and loud on sided converstion between me and that supervisor.

Though like any business, you do have your “problem child.” Yet, any injury claimed by them MUST be treated the same as any other injury. Our policy here is to let the Workers Comp carrier handle it. That is why we pay the premiums.

10

Isn’t it easier and cheaper for the company to do that?

11

Ed,

Once again, I am not asserting that railroading is not a dangerous occupation. I am just saying that there are a lot of dangerous occupations. Significantly more highway construction workers are killed every year than cops. My only argument is that if railroading—as a dangerous occupation–needs the protection of FELA, why doesn’t other dangerous occupations. Or, if dangerous occupations are adequately covered by workers compensation acts why are Railroads not given the benefit of these acts.

Also, I am emphatically not suggesting that employee recovery be limited in any way. I am, however, suggesting that the transaction costs thoroughly referred to by Limitedclear are making a lot of people rich who probably never stepped on a train. The fact that the case I was referencing came out of St. Louis says it all. I am suggesting that attorney’s access to FELA’s slush fund should be limited, not employee’s recovery.

I have not been a lawyer long enough to speak to the effectiveness of either FELA or the various workers compensation acts. But I do know that the workers compensation acts are designed to shelter business from all of those transaction costs referred to be Limitedclear and having employers have to worry about forum shopping.

Gabe

12

Gabe-

I think as you continue in the legal profession you will find that indeed there are special laws for many exceptionally dangerous occupations. For example, the Jones Act which is similar to FELA and covers merchant seamen. Remember too, that both railroads and merchant shipping are Federal in nature as they deal with Interstate Commerce (and International for that matter). At the State level there are often other laws protecting particularly dangerous occupations. For example, I recall reading a New York statute in law school designed to protect workers in construction accidents. I understand that law was origin

13

Gabe,
I agree with quite a lot you said…

And, as LC pointed out, we are Federal in nature.

As a suggestion, go the web page for the Southern Distric of the US Attorney Generals office, and read their slant on the UTU scandal.
Employees steered to DLCs, Designated Legal Counsel,
lawyers who, in some instances, paid bribes and contributed lagre amounts of money to former UTU President Boyd, to be included on the DLC list.

Horrible abuse of FELA, and the union members trust.

But I know you could cite examples of Workers Comp bribery and fraud also.

Just because we are all lumped together as blue collar workers dosn’t necessary mean we all work under the same conditions, or under the same rules.

All of us know, railroader and others, of a Sunday afternoon football accident that is turned into a monday afternoon work related injury…
it happens, no matter if its under FELA, or workers comp.

For the most part, workers comp functions like kevarc said, if a guys is hurt, he is packed off to the hospital, and everyone at work sends him get well cards.

It dont work that way on a railroad.

Yes, trainmasters, superintendents and claims agents(really loss prevention and liablity limiting agents) do bully the employee, do follow them in to the emergency ward rooms, do harrass the attending doctors and nurses, do threaten to fire the employee and his or her co-workers if they want a ambulance to transport them, or try to get them removed from the hospital room once there.

I have yet to see a ambulance on property, and the last injury we had, the employee was struck by a moving train, and when he awoke, complained of numbness and loss of feeling in his arms.

The trainmaster on duty wanted to know if he could drive himself to the company doctors office!

He refused, and demanded a ambulance.

The trainmaster threatened him with removal fr

14

Ed,

I don’t disagree with anything you say. Nor do I disagree with Limitedclear’s statement.

However, dispite my inexperience, I clerked at a rather large law firm in Michigan during the summer of my second year of law school. I was truly amazed by how many defense lawyers (billing at $250+ an hour) were dedicated to just FELA work–and that was just one firm in a State that is not known for big jury awards.

When you consider that, the plaintiffs’ lawyers, the payment for court time, the amount that is paid to expert witness, etc., talk about a cottage industry!

Workers comp work did not receive nearly the same amount of attention (two or three over worked defense lawyers billing at $110 an hour)–that seemed to indicate to me the difference of transaction costs that FELA was placing on the rail industry.

Like I said, I am not suggesting that rail workers aren’t entitled to just or less compensation. I just see all of those transaction costs as a burden.

Gabe

15

My point too, there is a cottage industry devoted to this, and trust me, none of the players want it to change.

Has the balance changed since you clerked?
Now that attorneys are allowed to advertise, you cant watch TV with out one or more commericals airing by attorneys hunting workers comp cases.

Seems, according to the ads, no place in the world is safe…they even want to sue the materess makers for your back pain!.

I learned about two new life threatening illness, one releated to saw dust, the other to welding fumes, and discovered if I have ever coughed, I might have one of them, so I better dial 1-800-… a board certified attorney will decide right over the phone if they can take my case…

Wow, what a country!

Seems all the hogs are lined up at the trough…

In the end, of course, the cost of all of this is passed on the us, the consumer.

Now, when you have a real beef, and need access to the court system, you’r stuck i line behind theses clowns for several years.

Dont know what the solution is.

Ed

16

WCB is an answer. As long as majority of the people support it, the politician should fear election reprisal over that issue.

Maybe there should better safety standards for some of these industries. I can see certains jobs like military, emergency services and railroad jobs for example that have a degree of unavoidable danger but a lot of the employers out there either do not provide proper safety standards to the worker or don’t make sure that the worker has an exceptable amount of trainning. This is why workers get injured a lot and hence the large volume of civil trials. I know that the WCB here will fine the employer heavily when repeat problems are brought up and can even at times result in the employer’s licence to operate being suspended until safety standards are

17

Ed-

The UTU scandal is the union I was thinking of primarily as its corruption seems to be the most obvious. I am uncomfortable with both the BLET and BMWE as both maintain counsel lists that they “recommend” to their members. In my FELA action I was represented by an “approved” law firm and they did a good job. Interestingly enough, I refused to be represented by a different “approved” firm in another city and this seemed to cause quite a bit of consternation in the union higherarchy. It showed me the extent of the steering and associated politics.

As to your cottage industry comment, that was a point of my earlier post. There is an entrenched and well financed cottage industry that means FELA will be with us for a long time.

Andrew-

I hate to break it to you, but further empowering the Worker’s Compensation Board is not the answer. It really doesn’t give the worker adequate compensation and drastically increases coasts and the opportunity for fraud. Also, many small businesses cannot afford private coverage, throwing them into government sponsored pools (for example the State Compensation Fund in CA). How long will this continue before there is a need for a governement bailout of these funds? It is easy to wave the government checkbook at a problem, but this is a BIG one and it isn’t likely to go away easily.

LC

18

I don’t know why it works so well here than. I don’t hear too many people complain (including small businesses) about it. I think I need to do some research on it and see if they address your concerns including fraud. I am almost certain that they have. The governments often introduces and passes a lot of what I call “complementary legislation”. They introduce a bill and then introduce a bunch more as amendments to fix any problem that might be brought up.

19

Andrew-

At the risk of offending you (again), Canada has and will cointinue to have a much higher tax rate than the U.S. I have little doubt that the solution in Canada is related to having both more money to throw at the issue and a national health care system that I suspect absorbs more cost than our private system which must at least try to operate at a profit…

LC

20

I did ask my grandmother who was a VP of a CUPE local. She said that everybody is entitled to workers compensation and that all the business pay into it. The amount that is payed depends on the size of the business and how many workers so a small corners store with 3 workers pays nowhere near the amount of say what CN would pay.

To prevent fraud, the WCB requires doctor’s reports as well as a report from work. I am assuming that anytime there is an injury on the job the inspector from the Ministry of Labour files a report accessable to the WCB. For example, in a kitchen, if someone get cut on a meat cutting machine and it’s because the employer has not provided the training or the mesh glove, the employer will be fined. If the worker however, had recieved the necessary training and the glove was available, than the employer will not be fined. It isn’t as easy to commit fraud here because of the amount of paper work involved and we take WC fraud very seriously.

As far as funding is concerned, the government pays partial for it. The bulk of the funding comes from the employer who has payed into it to protect himself from litigation. Yes it is a double edged sword but it keeps the taxpayers money away from the civil court cost as much as possible which saves the people a lot more money in the long run. Like I said, it wasn’t a Liberal or NDP government that came up with it, it was a conservative government. It obviously isn’t just a Canadian thing either.

As far as the healthcare is concerned, that is where we differ in ideals. We don’t try to operate healthcare for profit. We don’t think that way because we believe that everybody from the very rich to the very poor should be entitled to the same kind of healthcare. That is why we hate two-tier health systems because it means that the rich have theirs and the less fortunate people do generally will not get the same kind of care.

To stay on the topic of WCB. It was lobbied by the large businesses beca