Railroad friends and clients, 

     Over the past 5 years, I have noticed an alarming trend among injured railroad workers.  On an increasingly frequent basis, injured  workers are making serious and damaging mistakes handling their on the job injury claims.  These mistakes are most frequent among new hires. Put simply, most of the mistakes are made because the employee simply doesn't know better.  A lack of information is a dangerous thing.

      As UTU Legal Counsel, I have tried to remedy this problem by speaking at union meetings and sponsoring seminars. Unfortunately, with union meeting attendance at an all time low, it has been difficult to reach most railroad workers.  And while our seminars have been well attended, the railroad's new "attendance" policies make it harder and harder for railroad employees to find time to attend such functions.

        This newsletter, I hope, can be part of the solution.  Over the next few months I will to send out newsletters highlighting the right and wrong things to do if you are injured on the job. I hope that future mistakes by injured workers can be prevented.

        Please feel free to forward this e-mail to your friends and fellow union members.  Working together, we can make a difference.

Sincerely,

James Wettermark 

Top 5 Mistakes Injured Workers Make

     The following are the top 5 mistakes injured railroad workers make in dealing with on the job injuries.  Making any of these mistakes can cost the injured worker significant amounts of money.

MISTAKE # 1:  Not Reporting the Injury Immediately.

        Incredibly, this is one of the most common mistakes.  And it can be the most expensive.  Typically, a worker will experience a pain while performing their job, and tell themselves - "It will be alright".  A classic example is when a conductor throws a poorly maintained switch and feels pain in the back.  He doesn't want to deal with officials.  It might just be a simple pulled muscle.  So he doesn't report it.  Then, when he wakes up the next morning and can't get out of bed, he has to report it.  And all hell breaks loose.  He most certainly will be fired or disciplined for failing to report the injury.  The railroad will claim it never happened. What should have been a simple and straightforward claim is now in jeopardy.

         If you don't want to put you and your family at serious financial risk, always report an injury.

MISTAKE #2:  Don't Worry about Fault

         Under the FELA, the injured employee must prove that the railroad was negligent (at fault) in order to recover for his injury. Yet, many railroad employees, usually because they don't know any better, will ignore this responsibility by saying "Well, it happened on the job".  Put bluntly, that ain't good enough.  As soon as an accident happens, the injured employee should immediately think about what just happened and figure out why it was the railroad's fault.  This is something we all instinctively do in a car accident.  We are quick to blame the other driver, because we know it is important to prove it was his fault.  The same rule applies to railroad injuries.  Was the switch hard to throw?  Was the walkway in bad shape?  Were you being rushed? Did you have enough help?  Did your crew member screw up?  By the time the first official arrives at the scene, the injured person should have a pretty good idea in his head of why the railroad is at fault.  And remember this.  The railroad is going to try to blame you.  Keep them on the defensive.  From the outset, point the finger of blame at the railroad.  It will not only help your injury case, but it will probably deter the railroad from convening an "investigation" to charge you with responsibility.

MISTAKE #3:  Give a Statement to the Claim Agent

        Shortly after an employee is injured, the local claim agent is sure to come calling.  He wants a recorded statement. And he is going to use it against you.  The old maxim that "anything you say can and will be used against you" is true of statements given to claim agents.

          Many injured employees will try to justify speaking with the claim agent by saying " I just told him the truth".  With all due respect, this is childishly naive.  The claim agents are trained to ask questions in ways that will make it likely that the injured employee will make a mistake.  For example, when confronted with a question like "Are you saying the railroad was negligent?", many injured workers will reflexly say "Well no".  And money flies out the window.  Most workers are reluctant to put the blame on a fellow crewmember.  They understandably don't want to cause their co- worker trouble.  The claim agents will feed on this sentiment by asking "Are you blaming your engineer?' or "Did your engineer break any rules?".  If you say "no", and it really was his fault, you have done serious if not fatal damage to your case.  The claim agent will almost always ask open ended questions like "Tell me everything that you think the railroad did wrong?".  If the injured worker  hasn't thought this out and planned for it in advance, he is likely to say "No, I can't think of anything".  And more money flies out the window.

       A statement to the claim agent can NEVER help your case.  The Rules of Evidence allow the railroad to use your statement against you, but those same rules say you can't introduce your statement to support your case.

        If you were to take a poll of FELA lawyers, they would tell you that more money is thrown away by giving statements to claim agents than any other mistake an injured employee makes.  Don't do it!

MISTAKE #4:  Use the Railroad's Doctors

         Often, the railroad will try to steer injured employees to "their" doctors.  Usually, when an injured employee is transported for medical care by a company offical, they will be taken to "industrial medicine" or "occupational medicine" facilities that specialize in on the job injuries.  These doctors, more often than not, are not the friend of the injured man.  Most railroads have nurse consultants who will recommend specialists.  I can assure you that these specialists are loyal to the company, not the employee.  When the time comes, they will testify against you.

        Always choose you own doctor.  Pick one who cares about you, not the railroad.  Most FELA lawyers can advise you who the "good" doctors are in any city.  Your medical care will be better. And when it comes time to testify, they will be on your side, not the railroad's.

MISTAKE #5:  Be your Own Lawyer

       As a lawyer, I am obvously biased on this issue.  But that bias has a rock solid foundation in fact.  Injured workers who hire lawyers get more money.  It's that simple.  A study several years ago suggested that injured workers who were represented by lawyers got 84% of the total claims dollars, while employees who handled their own claims only got 14%.  But in addition to maximizing an injured man's recovery, lawyers do other very important things.  They keep the injured employee from screwing up his case.  Or throwing away valuable benefits.  Or signing away valuable future rights.  Or getting fired. Or missing important benefits.

      An experienced FELA lawyer acts as a buffer between his client and the railroad.  He protects his client against the tactics railroads use against injured employees.  When the railroad shuts off the employee's health insurance prematurely, the lawyer can get it reactivated.  When the medical department is dragging its feet getting an employee back to work, the lawyer can apply pressure.  Claim agents aren't allowed to talk with an injured employee represented by counsel.  So they have to use their bag of tricks on the poor guy who isn't represented.

         The bottom line is that good lawyers can put a lot more money in their clients pockets, even after attorney fees, than the client could ever hope to do on his own.

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