Straight Track #25 - HOW MUCH IS MY CASE WORTH?

How Much Is My Case Worth?

Gary Babiarz
Hoey & Farina Chief Investigator
1-888-425-1212

At some point during the initial interview with a new or potential client, I am almost always asked, "How much is my case worth?"

I�ve learned from experience that most clients have already formed an opinion before he/she has asked the question. They have usually been advised by their co-workers, friends, family and the claim agent as to the value of their case. When I�m asked the question I know I�m expected to give a dollar amount. However, a case is only worth what a jury would award or what you can make a claim agent believe a jury would award. Therefore, I'm hard pressed to give a dollar amount. There is no magical chart or table for anyone to calculate a monetary figure. The fact is, on certain cases lost wages would be a gift and on other cases ten times lost wages would never be enough.

So, "How much is it worth?" First, unless you can prove under the Federal Employers� Liability Act (FELA) that the railroad did or did not do something that caused your injury, in whole or in part, the railroad owes you nothing � zip � zero � nada � the big goose egg. Just because you were on duty and getting paid when you were injured does not mean that the railroad must compensate you for your injury. That�s why it is so important that you include on your injury report the defect or unsafe condition that caused your injury. The more fault placed on the railroad the more value you can place on your case. Conversely, the more blame the railroad places on you, the less your case is worth.

Second, the type of injury you sustained and how clearly the doctor ties the injury to circumstances surrounding your accident affects the value of your case. The more serious your injury, the greater the case value. The clearer the doctor relates your injury to the accident, the harder it is for the railroad to diminish the value of your case. A railroad doctor may have a tendency, through reports and testimony, to cloud the issues with statements of pre-existing conditions, degenerative diseases, and the likelihood of a full recovery. Therefore, understand the importance of treating with a doctor of your choice instead of the doctor whom the railroad wants you to see. Remember it�s your insurance that pays the bills, not the railroad, so you can choose your treating doctor. No matter how severe your injury, no matter how much pain and suffering you went through, or what kind of permanent disability and disfigurement you're left with, the value of your case will be affected by how your doctor fills out his medical reports and what he will testify to. As we�ve stressed in previous editions of Straight Track, make sure you have a doctor that has your interests at heart and not the future business he hopes the railroad will refer him.

Third, your past and future lost wages are a very important part of determining the value of your case. Under the FELA your net lost wages are recoverable. If you are on light duty or wage continuation the entire time you are off there may be no lost wages. (When figuring lost wages, your earning history is much more important, or relevant, than other jobs that your seniority would have let you hold.) Avoid light duty like the plague and take wage continuation or advances only if you have to. Disability insurance and Railroad Retirement Sickness Benefits are the way to go.

Fourth, the most devastating factor that affects the value of your claim is surveillance. The railroads spend a tremendous amount of time and money following and videotaping their injured employees. Railroads have found surveillance tapes to be a very effective tool in reducing the amount of money they have to pay to an injured railroad worker. No matter how seriously a person is hurt, there remains that underlying desire to be a productive part of the family and society. Don�t, however, let those emotions guide your physical activities; let your injury and your doctor guide them! Before you do any kind of yard-work, sports or recreational activity, clear it with your doctor and make sure it�s part of your therapy and rehabilitation. The railroad�s videotape will show you looking like superman, not like the beaten down underdog you feel like hours later when you�re paying the price for your earlier activities. The jury will only see what you did, not how you suffered for it later. The railroad will only show the videotapes of you lifting and bending on Monday and not the tapes of you on Tuesday and Wednesday lying in bed, popping down your pain pills. Because there are no tapes of that, the jury will never see that. You need to take surveillance seriously because the railroads and juries do!

So, how much is your case worth? Your case is worth zero unless you can prove that the railroad did something that caused your injury. The value of your pain, suffering and disability is worth basically zero unless your treating doctor ties in your medical condition to the incident at work. If you can prove negligence by the railroad, your doctor can tie in your condition to the incident, and you have provable loss of earnings, your case has value. My own general formula, taking the above issues into consideration, is: Value = [(past and future medical expenses) + (lost wages) + (pain and suffering) + (permanent disability) + (emotional distress)] - [(any contributory negligence on your part) + (any damaging videotapes)]. Remember, your case is worth what a jury would award or what you could make a claim agent believe a jury would award.