Straight Track #223: Do You Copy?

Do You Copy?

On the importance of getting a copy of an injury report

Frank Van Bree, Of Counsel
Hoey & Farina
vanbree@hoeyfarina.com
888-425-1212

Within the past couple of weeks we've had several railroaders call to say they had been injured on the job and needed some advice on what to do. To answer their questions, we needed to know exactly what happened that caused their injuries, so we asked what they had written down on their injury reports. Most of the railroaders couldn't remember exactly what they had written down. So we asked if they had copies of their injury reports. The majority didn't have copies!

SO MUCH TO THINK ABOUT

When you're first injured you have many immediate concerns to think about: getting medical treatment, notifying your family, how to answer the half dozen questions your supervisors are throwing you, whether or not you're physically up to going back to the scene to show the railroad where and how the injury happened, etc. In the midst of all of that someone shoves an accident report in front of you and tells you to fill it out, "now."

Likely, what you'll write down will be incomplete, only part of the story and lacking in specific details. You won't be at your best and certainly not able to concentrate completely on what you are writing. You may forget to include important facts. It's not surprising when asked later what you wrote, that you can't remember or aren't sure of exact details.

The accident report, or incident report as some railroads call them, is the most important account of your injury that you will give. It could become the basis of a disciplinary investigation. It will become critical in any settlement discussions with the Claim Agent or Risk Manager (as they like to be called now). If your claim is put into suit, you would be cross examined on it at your deposition and again at trial. Anything else you ever say about how your injury occurred would be compared with what you wrote on that report. The railroad is just waiting to catch you in any inconsistency - no matter how small and seemingly insignificant. The railroad will attempt to turn any inconsistency into the biggest lie ever told.

So how do you avoid becoming the victim of a poorly completed or forgotten injury report? First, be sure you are mentally able to properly complete the report. Perhaps you are in too much pain or preoccupied with getting medical attention. Perhaps you have been given medication and are drowsy and not clear headed enough to complete the report. If any of this is the case, say so. Ask for the report and say you will fill it out just as soon as you are able. If you are forced to immediately complete the report under threat of being charged with insubordination and loosing your job, note that above your signature. If you are in severe pain and the supervisors won't take you to the hospital until you fill out the report, write that down as well. If you complete the report after having been given pain medication, note that. If there is any reason why you may not be able to properly complete the report at the time you are filling it out, note it on the report before signing it. Then, and most importantly, obtain a copy for yourself (for future reference).

Aside from all of the above reasons which would keep you from making an informed and thoughtful report, the railroads have developed a few more of their own. The railroad will tell you to make out an "incident" report. The idea behind the "incident" report is to provide a means for a worker who had sustained what they believed is a minor injury, to report it as an incident and not an injury. If it turns out to be minor, as originally believed, nothing further would need to be done and after thirty days, the "incident" report would be destroyed. If it did develop into something more serious, the injured railroader could, within thirty days, fill out a formal accident / injury report without the threat of being charged with late filing.

It sounds pretty good, doesn't it? Well, that was how the railroad's system was at first intended to work, but here's the twist. The injured railroader fills out the "incident" report. Later he says he wants to go to the doctor and is taken by the Trainmaster. Now the Trainmaster fills out another report, supposedly for the FRA, describing the injury and relevant facts. He then gives it to the injured railroader, tells him to fill in the personal information (name, address etc.) and to sign it. Of course where he is asked to sign just happens to be right below a medical information release. By signing the report on the signature line, it looks like the whole form was approved by the injured railroader - when in reality it was filled in by the Trainmaster allegedly based on what the railroader told him. And if the injured railroader wants to make additions or changes before he signs the "incident" report, he is told he can't.

TWO SIDES TO EVERY STORY

Afterwards the injured railroader, believing not all the relevant facts may have been included on the "incident" report he hastily signed to protect himself, goes to the office and asks for a blank "accident" report. When the injured railroader tries to tell the complete version of how and why he was injured, there will then be two reports with his signature on them. The railroad can now use this in its attempt to show the railroader changed his story.

If at all possible, get legal advice or talk to one of your union officers before you fill out any reports relating to an injury. You may not realize the legal significance of some of the conditions which were present when you sustained the injury. We can explain these to you so you can be sure to include them on the report.

No matter what the railroad calls the reports you must fill out when injured, consider all reports like unsafe condition reports (see Straight Track #161). Use words like "defective" and "unsafe" or "not maintained" when describing what caused you to be injured because it's up to you to point out what the railroad did wrong and how their negligence caused your injury.

And finally, don't forget to get a copy of any and all reports you sign. The report is a blueprint for your injury claim. It simply can't be stressed enough. Do you copy!