Straight Track #174: Railroads and Riverboats

Railroads & Riverboats

Alan J. Fisher
Hoey & Farina Attorney
1-888-425-1212

What does a riverboat blackjack dealer at a floating casino and car-knocker have in common? Well, apart from several wise-acre answers I heard when I asked this question at a recent union meeting, the answer is a lot.

When the dealer at a riverboat casino falls and injuries himself at work, he is not entitled to Workers' Compensation benefits. However, he may be able to recover under the Jones Act, which is a federal law that provides special protection to workers on river barges, Great Lakes and ocean-going freighters, and certain river gambling boats.

"So what does this have to do with railroading?"

The federal law that covers railroad workers and the federal law that covers individuals working on boats have a great deal in common. If the injured boat worker can prove that his employer was negligent (that is, provided an unsafe place to work) then the injured boat worker can recover for pain and suffering and disability and can recover full compensation. If you are familiar with Straight Track, and the many articles we have written detailing the rights under the Federal Employers� Liability Act (FELA), you may very well recognize this legal standard. It is the same standard that railroad workers must meet in order to recover against the railroad.

The primary benefits to railroaders and boat workers in having a federal law protect their employment rights is that work-related injuries are usually worth much more than a Workers Compensation Act case because work comp cases have strict statutory settlement limits. Further, under the Jones Act and the FELA, an injured worker can have his case decided by a jury, which gives the injured worker greater leverage when negotiating with the defendant employer.

There are some important difference between Jones Act cases and FELA railroad injury cases. Under the Jones Act, if the injury to the employee was not caused by the employer's negligence, then there can be no recovery for pain and suffering and disability. However, unlike the FELA, the employer is still responsible for paying the employee's medical bills and a percentage of his lost wages. This is called "maintenance and cure."

A negative aspect to a Jones Act case is if the injured worker reaches maximum cure, or maximum medical improvement, the employer does not have to pay for his medical bills. In other words, if medical bills are purely for treatment of pain and not to provide functional improvement, the employer can cut off benefits. Obviously, this is not the best outcome for the injured worker. For example, if there is no cure for a worker's back pain and he has reached his "maximum medical improvement", the injured worker will have to pay the costs of any long-term pain prescriptions out of his own pocket.

The only way the employer can be forced to pay for "palliative" treatment is if it can be established that the employer was negligent or did not provide a safe place to work. If there is a dispute regarding whether treatment is palliative or not, your treating physician's expert opinion becomes critical to deciding the issue.

Regardless of whether you work on the railroad, or your brother works at the casino, it is important to know your rights. If you are injured at work, obtain immediate treatment, provide specific explanations to the doctor about how your accident happened, explain that it happened at work, and be accurate in your descriptions of pain problems to your doctor or the company doctor. Get the names of witnesses and their phone numbers if possible and consult a lawyer immediately. To be sure, the railroad and the riverboat employ high paid attorneys to try to stop you from receiving just compensation.

Like the FELA, the Jones Act is not perfect and not detrimental to the injured worker. The good news is that the Supreme Court has continued to uphold the intent of Congress in 1908 and allows a very tolerant test to determine whether railroads and riverboat employers are negligent in an injury situation. The test "is simply whether the proofs justify with reason the conclusion that employer�s negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pacific R. Company.

Hoey & Farina, your designated legal counsel, can answer any questions you -- or your casino blackjack dealer cousin -- may have about your rights under the law. Do not hesitate to contact us if you have any questions about the Jones Act or rights under the Federal Employers' Liability Act.