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Straight
Track #32
| Working For The Railroad Off The Property Robert
Drummond
Hoey, Farina Attorney
1-888-425-1212 If you are an
injured railroader, the furthest thing from your mind when you sustain an
injury on the job are past accidents, injuries, or medical conditions. |
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In most instances, these events or conditions will have nothing to
do with your claim. However, your failure to disclose these events or conditions
at the appropriate time may impact your ability to receive fair
compensation.
The first
time the railroad asked you about past accidents, injuries, or medical
conditions was on your employment application.
From that point forward, the railroad has required that you
document any on the job injury on an accident report.
If due to a non-job related accident or illness you took off time,
this, too, could be documented in your personnel file.
When you make
a claim for injury, your prior medical history has already been compiled
to a large extent by the railroad and the claims agent. Under the FELA and your collective bargaining agreement, you
have an obligation to be forthright about these events. Most railroads have a code of conduct, which requires honesty
in dealing with the employer. Dishonesty
can result in you being fired. The
rules of the Court require disclosure of relevant medical information.
Dishonesty in the litigation can result in dismissal of your claim.
These are the worst scenarios.
Other problems short of these can arise.
Let’s take
a simple illustration. You
began your railroad career when you were 20 years old.
Fortunately, you had not had any prior accidents or medical
conditions that should have been referenced on your application for
employment. Five years into
your career you strain your back and lose time.
You return to work without restrictions.
Ten years later you have an off duty auto accident and sustain an
injury to a different part of your back.
Once again, you return to work without continuing problems or
restrictions. Six years later, you sustain an injury on the job to the same
part of your back as your first on duty injury. This time, however, your injury is significant.
It is now uncertain whether you will return to work.
As with all
injuries on the job, you will make out your accident/injury report to the
railroad. You probably
won’t be asked about prior injuries to your back in this document.
If you choose to make a statement to the claims agent, he/she will
likely ask you about prior injuries.
The claims agent will have a file listing your on duty injury
history. The claims agent may
also know of your auto accident. There
is certainly no harm in disclosing that you have had prior injuries from
which you have completely recovered.
In other words, there is no penalty for being honest.
Using the
same example, you are not fortunate enough to recover from your injury and
you do not return to work. The
railroad forces you to file litigation to seek fair compensation. You will now be asked again about prior accidents, injuries,
or medical conditions. These
questions will now come in the form of written interrogatories and oral
deposition questions. The
railroad, the Judge and ultimately a Jury will then evaluate the responses
you have provided under oath. Your
attorney can assist you in determining what information the Court rules
require you to disclose. However,
you must provide your attorney with all
the information in order for this process to work.
Once your
case is in litigation, the railroad might subpoena your records from your
medical insurance carrier. Your
complete medical history may then become available.
In addition, the railroad might consult the Injuries Index, a list
of claimants and their claims compiled by liability insurers.
This could reveal any other off duty claims you may have made.
The Court will decide the legal issue of whether this information
is relevant to your case, after your attorneys make the appropriate
arguments. If your attorney finds out for the first time from the
railroad about information which you should have supplied, you will now be
at a severe disadvantage.
Several cases
in our office, very good cases against the railroad, have suffered greatly
due to the client’s failure to disclose to us information about prior
injuries, accidents or medical conditions.
If you improperly deny the existence of a prior injury or condition
in the same part of your body, your credibility on the damage issue of
your case could be severely impaired.
If your claim involves an unwitnessed accident, your liability case
may also fall due to your lack of credibility.
It is difficult to convince a jury that you forgot, after an off
duty injury, that you underwent an MRI and your doctor informed you of a
herniated disc one year before your railroad injury.
It is also difficult to explain to a jury that your prior visits to
a chiropractor for back pain are unrelated to your present claim of
disability, unless you were the first person to disclose this information.
The legal
issues related to relevance and admissibility of evidence can only be
addressed by your attorneys after full disclosure by you.
Generally speaking, you could have an auto accident in which you do
not sustain injury. This is
commonly referred to by the insurance industry as the “no bender-fender
bender.” You could also
have an accident in which you sustain injury to, or a medical condition
involving, a totally separate part of your body.
Unless this injury or condition affects your work-life/life
expectancy, it is not likely to come in evidence.
The foregoing may require disclosure, but they may be irrelevant at
trial.
The more complex issue
is when you have a prior injury or medical condition involving the same
part of your body for which you now claim additional injury or disability.
The simple fact that you had a prior accident, injury, or medical
condition involving the same part of your body will not defeat your right
to recover compensation. The FELA recognizes and allows recovery for the aggravation
of a pre-existing condition. This
topic will be addressed in next week’s article.
However, in order for your attorneys to establish this claim, you
must fully advise them of prior injuries or medical conditions to the same
part of your body. The
failure to disclose this information may impair your ability to recover
fair compensation. Give your
attorneys a fighting chance to fight for you by fully disclosing this
information to them.
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