Straight Track #227: PI Report As Dangerous Weapon

The Personal Injury Report: A Deadly Weapon In The Railroad's Arsenal

Craig W. Church, Attorney
Hoey & Farina, P.C.
cchurch@hoeyfarina.com
888-425-1212

The railroad's Personal Injury Report is the first document in the litigation paper trail. For this reason, it assumes greater reliability in the eyes of the railroad, and juries that consider liability in Federal Employers' Liability Act ("FELA") cases.

The carrier requires that the injured railroader complete a Personal Injury Report as soon as possible after an injury. Failure to file a timely report may result in disciplinary action. Moreover, an untimely report allows the railroad to argue that the incident never happened, or if it did happen, it must not have been that serious. Since the report asks the railroader to identify the location and equipment involved, the failure to file the report timely, or to identify the exact location, equipment or unsafe condition, provides the railroad an excuse that it could not investigate the incident. Frequently, it is the railroad's incident investigation that establishes the railroad's negligence. Therefore, prompt and accurate reporting of incidents is crucial.

The Personal Injury Report form will ask you to provide answers to some of the following questions:

It is important to remember that these questions are designed by the railroad to trigger responses that the company can use against the injured railroader in his FELA case. The facts will determine the answers to these questions. However, you have to be prepared to recognize and describe these facts.

In filling out their Personal Injury Report, keep in mind the basis for liability in an FELA case. There is no liability against the railroad, and you cannot recover money damages unless your injuries are due to the railroad's failure to provide you with a reasonably safe place to work.

The railroad has an obligation under the FELA to provide reasonably safe track conditions, machinery, equipment, premises, walkways, adequate rules, procedures and work methods. The carrier is also responsible for providing adequate training, supervision and instruction. In addition, under the Safety Appliance Act, the company must provide non-defective handbrakes, ladders, handholds, grab irons and couplers. The Boiler Inspection Act requires the carrier to furnish locomotives that are in proper condition and safe to operate. The negligence of fellow employees offers an additional basis for liability under the Act.

Before filling out the Personal Injury Report consider the broad obligations that the railroad has to provide you with a reasonably safe work environment. If your injury is the result of any unsafe work conditions, you must identify those unsafe conditions and how they caused your injury in your Personal Injury Report. If you fail to do so, your Personal Injury Report may be used by the railroad's attorneys as Exhibit "A" throughout the trial of your FELA case.

Clients have told me that they did not identify an unsafe condition in their Personal Injury Report because they did not think it was important to do so at the time. The railroader may think that he will be back to work in a few days. There have been too many occasions, however, when a Personal Injury Report was hastily prepared, and the injury was much more serious than originally thought. I have counseled many clients who were not able to return to work for a significant period of time, and some who never did return to work. Unfortunately, some of these clients did not take the time to specify on their report how the railroad failed to provide a reasonably safe work environment. You can avoid this problem if you take every incident seriously and identify the unsafe conditions that caused your injury.

For example, if you are a conductor dismounting from a car and rolled your ankle, identify the ballast conditions that caused your ankle to roll (i.e., uneven ballast, no shoulder, extreme slope or large rocks). Remember, liability under the FELA is based on the railroad's fault. Anticipate the question: "Did the employee have a safe place to work?" Be prepared to respond concerning why the work place was unsafe. When the railroad asks you whether the incident was caused by the conduct of another person, be prepared to respond concerning the manner in which other railroad employees may have contributed to your injury. Describe the negligence of fellow employees, which may include lack of inspection, poor maintenance, failure to provide adequate personnel, failure to provide adequate equipment, lack of supervision, inadequate training, or instruction, or appliance or locomotive defects that should have been detected during inspection by other company employees.

Under the FELA, the railroad's negligence must play a part in causing your injury Even if your injury is an aggravation of a pre-existing medical condition you are still entitled to recovery if the injury was caused by the railroad's negligence. Consequently, you need to consider what was wrong with the work area, equipment or tools that caused or contributed to your injury.

The FELA allows for contributory negligence. This means that the jury may reduce the amount of money that you are awarded, in proportion to your own negligence in causing the incident. Therefore, if you state in your Personal Injury Report that you could have exercised more care, the jury will take this into consideration in reducing your money damages.

Rather than focusing on what you failed to do, focus on what the railroad failed to do to act responsibly for your safety. If you tripped and fell in a yard, what were the light conditions? If artificial lighting was a factor, you need to identify poor lighting in the report. Were there other factors that may explain why you failed to observe the condition you tripped on? Were you rushed to get your train out? Were you distracted by someone, or other job activities? Was the tripping hazard difficult to see because it blended in with ground conditions? If so, you need to detail these facts in your report.

The Personal Injury Report is a tool that the railroad will use against you in your FELA case. In completing the report, don't make the mistake of assuming that your injury isn't significant; the claim agent will deal with you reasonably; you will never wind up filing a lawsuit; or the case will never go to trial.

Don't let the company use the Personal Injury Report as a weapon to blow your FELA case out of the water. If you don't identify an unsafe condition that played a part in causing your incident, the defense attorney for the railroad will remind the jury of this fact in opening statement, throughout the trial and in closing argument. The defense attorney will display your Personal Injury Report to the jury on a 3' x 4' poster board constantly as a reminder that you thought there was nothing unsafe about the work environment. In closing argument, the defense attorney will emphasize the applicable jury instruction that states there is liability against the railroad only if the railroad fails to provide you with a reasonably safe workplace, and that you stated there was nothing unsafe when you filled out your report.

The bottom line is don't let the railroad's attorney argue that you aren't entitled to money damages because you did not specify anything wrong with work conditions in your Personal Injury Report. Instead of allowing the company to use the personal injury against you, use the report to your advantage by documenting the railroad's negligence.

If you have any questions, please contact Hoey & Farina at (888) 425-1212 or via email at info@hoeyfarina.com.