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Straight
Track #237
Please note: This article contains a
description of legal concepts that is NOT recommended to be used under
any circumstances when an employee is injured on the railroad. It is
meant only as an example of legal remedy under unique and extreme
circumstances.
A Release Can Be Voided
There are limited circumstances under FELA law that permits an injured
railroad employee to take a second bite from the settlement apple. That
is, there are circumstances where an injured employee signs a release
with the railroad for an on the job injury where the release can be
voided and additional compensation is available for the injured
employee. However, the better path for an injured employee to take is
not to settle a claim with out discussing it first with legal counsel at
Hoey and Farina.
Before And After Signing a Release
The typical fact pattern goes something like this. A railroad employee
injures his knee. He is treated by the company doctor and is diagnosed
with a strained knee. The employee misses one month of work, maybe
$5,000 in wage loss. Soon after he returns to work, the railroad claim
agent appears and offers the employee $10,000 to settle up. The
employee, thinking he is healed, signs a release and settles the case
for the $10,000.
After settling, the knee begins to bother the employee. He goes to his
family doctor who refers the employee to an orthopedic surgeon. The
surgeon diagnoses internal damage to the knee and recommends surgery.
The employee begins to miss work again, and after surgery, he is not
physically able to return to railroad work. At this point the employee
returns to the claim agent and the claim agent waives the signed release
in the employee’s face and shows him out of his office. The employee
then calls an attorney.
Mutual Mistakes
There are two avenues to take in a lawsuit to seek additional
compensation. One, the railroad knew the injury was more serious and
committed fraud in procuring the release from the employee. This tact is
seldom successful.
The more common argument involves mutual mistake of fact. A release is a
contract. Under basic contract law, a contract may be invalidated if the
parties entered into the contract under a mutual mistake of fact. In
order for the court to decide if the release/contract should be
invalidate under the doctrine of mutual mistake of fact, the court will
look at several factors.
One factor the court will look at the amount of compensation given in
exchange for the release in comparison to the amount of wage loss at the
time of signing the release versus the amount of wage loss as a result
of the injury after it fully manifests itself. In the above example, the
amount of compensation was only slightly more than the wage loss,
($5,000 wage loss-$10,000compensation); if the injury prevents the
employee from returning to work his wage loss may be in the hundreds of
thousands of dollars. This is an important factor in favor of the
employee when the difference in wage loss is significant.
Another factor is the amount of time elapsed between the injury and the
settlement. The shorter the time, the more likely the release can be
broken. Also, the court will look at whether the injured employee was
represented by legal counsel. If the employee had a lawyer, a court will
seldom break the release.
Finally, the most important factor is a mistake regarding the nature and
extent of the injury. If both the employee and the claim agent labored
under the belief that the injury was only a strain at the time of
settlement, and the injury was later diagnosed as a very serious injury
and surgery is performed, the court may be persuaded to set aside the
release. However, if the injury as originally diagnosed is one that may
progress to surgery, no mistake is present as to the nature and extent
of injury, the only mistake is to the long term course the injury takes
and the release can not be broken.
The ultimate determination of whether a second bite of the apple will be
permitted by the court, however, is a fact intensive inquiry and each
case will be decided on its own merits. Even where the court permits a
case to proceed after a release is signed, the court usually will allow
the railroad to argue to the jury that a release was signed and no
mistake was present. This can be devastating testimony for a jury to
hear.
Before Signing on the Dotted Line
The bottom line is not to be put in this situation. Do not sign a
release for an injury, no matter how slight, without consulting with a
lawyer at Hoey & Farina. We can be reached 24 hours a day at
888.425.1212.
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