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Straight
Track #45 Is This The Same Railroad
I Have Been Working For?
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Vocational Rehabilitation
&
Those "Too Good To Be True"
Offers Which Really Are
"Too Good To Be True”"
J.
Dillon Hoey
Hoey & Farina Partner
Tel Toll Free: 1-888-425-1212
Some
railroaders who are injured at work will return to their former occupation
after medical treatment and a full recovery.
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Unfortunately, a number of
railroaders will never recover enough to go back to their former
occupations.
In
interpreting the Federal Employers’ Liability Act, courts have included
the requirement that a jury be instructed that “an injured party is
under an obligation to return to gainful employment that he is reasonable
capable of performing as soon as reasonably possible. Failure to resume
gainful employment does not preclude an award for future lost wages, but
you are to reduce any future lost wages by the amount that the injured
party could have earned by resuming such employment. What is reasonable
under the circumstances is for you to decide.”
What
does this mean? If you are a 40 year old railroader making $50,000 per
year and intending to work to age 65 and can no longer return to work
after your injury, your gross lost wages would be $1,250,000 (25 years x
$50,000 per year). However, based upon the above legal requirement, if you
can reasonably resume some type of gainful employment, given physical
restrictions, then the jury will reduce that amount by what you could
earn. Determining the amount of money an injured railroader can earn in a
different job after the accident gets a lot of attention because it can
seriously reduce your award for lost wages.
Obviously,
the injured railroad worker, once it is realized he cannot go back to his
old job, will want to do something for the rest of his life after
recovering as much as he can from the injury. Frequently, a railroader
has done nothing but work for the railroad since getting out of school.
Therefore, there are two options that this railroader faces. The first is
getting some type of employment with his same railroad in another craft
or in management or, second, getting retraining for employment outside
the railroad. Both of these situations are subject to tragic manipulation
by the railroad to greatly and incorrectly inflate a railroader’s
earning potential or to show that railroad jobs are available which are
not, in fact, legitimate.
After
a railroader has recovered from his injuries and it is determined that he
cannot go back to work, this railroader will be faced with something he
has probably never encountered before – a smiling, friendly railroad
which appears to be going out of its way to “help” the railroader by
offers of retraining and possible job opportunities. Is this too good to
be true? You bet! This is the same employer that has been dealing with
you for the last 20 years or so in the usual not-too-friendly manner.
Many railroaders feel, justly, that the railroad has never gone out of
their way to see their point or extend them any favors or even meet them
half way. Why the change? Because the railroad is not doing it to help
the injured railroader, but to help itself. If a railroad can show that
an injured railroad worker’s post-accident earning potential will be
the same as before the accident, the railroad will not have to pay any
part of the $1,250,000. The more that the railroad can fool a jury into
thinking that you will make after the accident, the less you get.
Therefore, the railroad has something far different than a humanitarian
motive to proceed with vocational rehabilitation.
A
look at several examples of this manipulation can show what your new
“friend” is up to. Let’s say that you are a brakeman and cannot
return to work after your recovery from your accident. The railroad comes
to you and says “How about retraining? Would you like to be a
locomotive engineer?” This sounds good at first blush and, in fact,
that is precisely why the railroad is doing it – it is a sound bite
meant to be played for a jury. If you are physically capable of going
through engineer school, you start over on a new roster at the bottom of
the list. You may not be able to hold a job as an engineer and, since you
cannot work as a brakeman, this “wonderful job” turns out to be
nothing at all. However, in the meantime, the jury has heard testimony
about your retraining and full earning potential as a locomotive engineer
and has chosen not to give you any future lost wages. If you turn the
offer down, the railroad will argue you are not interested in working at
all.
Another favorite “no job” job offer railroads
like to use is the yardmaster position. Often, a number of railroaders
have gone through training and are qualified to be yardmasters. Due to
there being no openings, they work as relief yardmasters while waiting to
have a slot to fill as a yardmaster full time. Thus, a “yardmaster job
offer” is nothing more than another deception.
Other
favorite railroad “job offers” include various instructors, crew
callers, dispatchers, and certain officer jobs. Again, these look good on
paper, and it is not done to help you, but to help mislead a jury into
thinking it is a realistic job offer. Ironically, the railroads doing
this the most are the ones that have announced thousands of job
reductions after mergers and consolidations. Additionally, if the job is
not union, how long do you think this job will be there after your case
is over?
In
another twist, the railroad will often offer the opportunity to apply for
a position not in the same geographical location. They will then argue to
the jury that it is reasonable for you to leave your family and home
where you live to move across the country to save the railroad money.
Since you have refused, it is obviously evidence of your laziness they
argue.
Non-railroad
employment is often a preferable way to go, as the chances of legitimate
long term employment are real and not controlled by the railroad.
However, this must be undertaken carefully, as it often involves a
multi-year retraining period and then a job search. Railroaders who have
been involved in this process often report that the prospective employers
are less than enthusiastic about hiring a 40 year old person who has done
nothing for the last 20 years except work on the railroad and who has
severe enough injuries that require special attention.
It is imperative that experienced legal counsel
be on your side to work for you and coordinate whatever legitimate
assistance can be obtained from the railroad. There are potential
benefits to be had in utilizing the railroad’s resources, but there are
very real dangers. It is beneficial to utilize your own private
vocational counselor. This is a person who is actually working for you,
not the railroad, in attempting to find a rewarding and, more
importantly, legitimate occupation for you to embark on after you have
been forced to leave your old occupation.
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