Straight Track #15

Recently, a commuter carrier employee was injured on the job and was being transported downtown to see the company doctor.  He had a cell phone and called us. He didn’t know how badly he was hurt, but he said he didn’t want to take any chances.

During the phone conversation, we went over the accident form he was going to be asked to fill out.  We have a copy of the commuter carrier’s accident report form in the office (we have copies of all major railroad accident report forms).  The injured railroader was told that he must prove negligence on the part of the railroad in order to recover under the F.E.L.A.  He was surprised.  He thought he only had to be working and under pay when the accident happened in order to be paid.  We asked him what the railroad had done that had created an unsafe place for him to work, and whether that unsafe place to work caused his injury.

The injured employee thought about it for awhile and then told us very specific examples of unsafe conditions that had caused his injury.  We suggested that he use those same answers for the general questions on the commuter carrier’s accident form.  It was also pointed out to him that by being specific about the unsafe conditions and thus establishing the absolute liability of the carrier, the claims agent would be much more likely to give him advances, which he would need to make up the difference between the railroad benefits and what he was making each half (every two weeks).  The injured employee said he didn’t have any supplemental benefits available to him and that he would need the advances.

We also suggested to him that he allow the company doctor to only initially examine him and to tell the company doctor that he wanted to be treated by his family physician, and that if he needed a specialist, his family physician would refer him.  The injured employee was surprised to find out that he had an absolute right to see a physician of his own choice.  He then said the train was pulling into the station and he had better get back to his seat.  He said he would call us back tomorrow.

The next day he called back and said he had followed our advice.  He said he hurt all over and that he was going to see his family doctor.  As soon as the claims man saw his accident report, he asked him if he needed any advances and even offered to bring them out to his house, the injured railroader added.

A couple of days later the injured employee called for the third time.  He said he had seen his family doctor who gave him muscle relaxers and referred him to an orthopedic specialist who he could not get in to see for a couple of weeks.  He did say he was feeling better.  He also said he had received his first advance but the claims man had insisted that he needed a detailed recorded statement if he was going to keep on giving him advances.  It was suggested to him that he tell the claims man that if he had to give a signed-recorded statement he would have to hire a lawyer.

About eight weeks later we heard from the injured railroader again.  He said he was feeling much better and the MRI and X-rays were negative.  The specialist had called it a back sprain.  The orthopedic specialist suggested taking another two weeks off before attempting to return to work.  The injured railroader also said that when he told the claims man about hiring a lawyer, the claims man never mentioned the signed statement again and that he had been paid advances every half.  It was suggested to him that he follow his doctor’s advice, but that he hold off talking about settling the case until he had given his back a real test by working the rest of the winter, between 60 to 90 days.

Three months to the day, the injured railroader called back.  He said the claims man had approached him right after he went back to work and wanted to settle his claim. The injured employee told him he wanted to work the rest of the winter to make sure he was alright.  He said he felt fine, but asked us what he should he do next.  We discussed how much time he had lost from work, what his wage rate was, what type jobs he was working before the accident, and what type of job he was working now.  We talked about his injury, and the injured employee expressed the fact that he felt he was completely recovered.

It was suggested to him that he call the claims man and set up an appointment to see him.  We also told him to tell the claims man that he was the expert and that, as such, the claims man should make him an offer and explain to him how he reached that number.  If the claims man wanted him to give a number, we suggested to answer that he would have to hire a lawyer.

A few days later the injured railroader called and said everything had gone just as we said, and the claims man had made an offer.  Hearing what the claims man offered, we laughed and said that the offer was ridiculous.  We told him to go back to the claims man, tell him he had talked to us, and we said to him his claim was worth X amount of dollars.

He did exactly that and the claims man doubled his offer.  We told the injured railroader that the offer was low but wasn’t completely out of the ballpark.  We said we could call the claims man to see if we couldn't get the case settled without having to get formally involved.  The injured railroader agreed.  We called the claims man and he came up with another 30%, which ultimately settled the case.  But before doing so, the carrier faxed us the release and we reviewed the document. The employee, only then, went in to sign the release and pick up his check.

After he received his check, he brought it over to our office and asked us how much he owed us.  We told him he could buy us a beer and we’d call it even.

That’s what we mean when we say that every case doesn’t need a lawyer but anyone who gets hurt does need good advice. In this particular instance, the injured railroader had no idea how badly hurt he was when he called.  He just wanted to be careful and as he said, “You only have one back.”  With our advice, he did everything right: he filled out an accident report so that it established liability on the part of the railroad; he did not give a signed or recorded statement that could create conflicts with the accident report that could cost him his job and destroy his FELA claim; he saw his own physicians; and he received solid advice about the value of his claim so that he didn’t take the first offer made.  Indeed, he had all the information to know what the claim was really worth.

You might ask why would we, the law firm of Hoey, Farina & Downes, do something like this.  We spent some time on this claim and we didn’t make any money.  We did make a good friend, however, and believe me, if he gets hurt again, or anyone he knows gets hurt, they’ll call us.

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