Straight Track #164: Winning The Railroad Lottery

Winning The Railroad
Lottery

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

After someone is injured on the railroad, I often hear around the yard and at union meetings, "Hey, 'so and so' got hurt -- guess he is getting ready to play the railroad lottery!"

In my 26 years helping railroaders, it honestly scares me to know that a number of injured railroaders think handling an injury claim is a game of luck and chance. Yet, every week, I receive a call or an email from an injured railroader who tells me that he may have made some mistake that could seriously jeopardize his claim.

The term "railroad lottery" is misleading in many ways. The term was coined by railroad officials to imply that you want to win a huge settlement and thereby profit from your injury. In fact, you have already lost the game when you were hurt on the railroad.

For any given claim, there are dozens of things that I can tell an injured worker to do to better protect his rights. For the purposes of this article, I have listed what I think are the most common and biggest mistakes railroaders typically make in handling their injury claims by themselves. By not making these same mistakes, you stand a better chance of winning the so-called railroad lottery, but most importantly you will protect your rights and your family.

1. Not Reporting The Injury

The most common mistake that injured railroaders make is not properly reporting the injury. Follow the appropriate rule and report the injury in a timely manner and on the proper form. If you require medical attention, first get treated and then report the injury. You must truthfully state on the railroad�s form the unsafe condition or defect that caused your injury. Remember no matter how serious the injury, you must prove the railroad was at fault in whole or in part.

Under the Federal Employers� Liability Act (FELA), the law governing injured railroad workers, the burden of proof is on you. Unlike worker�s compensation laws, the railroad is not obligated to pay you a dime simply because you were hurt at work. The railroad is not obligated to prove your case. In fact, the railroad will go to extremes to prove the opposite; namely that the railroad had no part in causing your injury and to show that you did something wrong that caused your injury.

After you fill out the injury report, make sure you get a copy. This is your first piece of evidence to help prove your case.

Another costly mistake that railroaders make usually happens long before a person gets injured. Most railroad workers consider disability insurance an unnecessary expense. After all, who thinks that they will be seriously injured at work? When I raise the issue of disability insurance with my fellow railroaders, they also tell me, "My employer will take care of me." Well, here are two facts for you: 1.) One in every ten railroaders will be injured at work, and 2.) Your employer is out to protect its financial interests, not yours.

Every railroader should understand that no matter how serious their on the job injury is, the law does not require the railroad to continue your pay. The only pay a railroader is entitled to by law is $1,040.00 a month from the Railroad Retirement Board (RRB), and any other disability insurance he might have.

To avoid this mistake, you should take the RRB�s $1,040.00 as a base, add to that any other insurance you may have coming, and then subtract from this amount your monthly bills. Whatever the dollar difference is, get enough supplemental insurance to cover the gap.

Taking out enough disability insurance also will help you avoid the next most common mistake: giving a statement to the claim agent. Most injured workers do not know that they do not have to give a statement to the claim agent. The only help a claim agent can give an injured worker is an advance against the worker's own injury claim. But keep in mind that dealing with a claim agent is like playing the game with a loaded deck.

The reason the railroads employ claim agents is to get the injured worker locked into a story that damages the worker's case. Through careful and purposeful questioning, the claim agent tries to get on paper the story of the events that is most beneficial to the railroad.

If you have enough disability insurance, you can avoid giving a statement to the claim agent because you will not be in the position where you need the railroad's advances. Having disability insurance de-fangs the claim agent, and takes away the power the railroad holds over its workers to get a statement -- a statement that will invariably be used later to try to defeat the worker�s injury claim.

In you are injured and you need advances, call us at Hoey, Farina and Downes before giving a statement to the claim agent.

Another common mistake that can decrease your odds of getting a fair settlement is treating only with the company doctor. On most railroads, the injured worker has the right to treat with a doctor of their choice. If an injured worker doesn�t have his own doctor, he should look for one. Ask friends and check references. The best advice is to find a doctor that understands your job. Give your doctor a job description (see our Forms Shanty for a list). Explain to the doctor exactly how you got hurt. It is important that you receive medical treatment from a doctor that understands your needs as an injured railroad worker.

Doctors recommended by care managers or railroad claim agents understand the needs of the railroads. These doctors do not understand the needs of the injured worker. The doctors who are under contract with the railroad know who pays their bills. Even though the injured worker may never have had a physical problem prior to the accident, railroad doctors will use terms in their notes (and future courtroom testimony) like "pre-existing condition" and "degenerative joint disease." It is imperative that the doctor's medical notes substantiate the claim of the injured worker. Remember, the burden of proof is on the injured worker. The railroad only has to defend itself against these claims.

The last big mistake that injured railroaders make is underestimating the railroads' use of surveillance. The problem is not if the railroad is going to put the employee under surveillance but when.

As I sat at my computer writing this article, a railroad sent over eight video cassettes of surveillance documenting only one of our cases. Eight full cassettes on one case! Railroads are aggressive about surveillance (and spend the serious money on investigations) for the simple economic fact that they know surveillance can reduce the size of injury claims.

It is human nature to want to do the types of things you were able to do before you were injured. You want to be the same kind of guy around your family and friends. However, the reality is that injured employees should never do anything that exceeds the physical restrictions that their doctor has put them on. It doesn't matter if you were sore the day after doing something beyond your pain threshold. If it was recorded on videotape, you might pay for it forever.

Videotapes don't show that the employee may have been on heavy pain medication during the activity. They don't show the employee on the days when he's laid up and suffering for exceeding his restrictions on a good day. But the railroads know that a picture is worth a thousand words. All the medical testimony in the world oftentimes takes a back seat in the minds of jurors to your golf swing, the image of you cleaning out the gutters, or heaving that trophy deer in the back of your truck. The jury won't "feel your pain." They will think that you are a liar.

Injured workers on treatment plans should never increase their physical activity without first clearing it with their doctor and physical therapist. Remember a surveillance tape can drastically reduce a claim if it contradicts the medical documentation.

If after reading all of this, you still want to know how you can win the so-called railroad lottery, well, I have two simple words for you: Don't Play! The railroad lottery is a game designed by the railroad, and it is designed to make you lose your rights.

The last time I played the lottery and lost, it cost me only a dollar. If you play the railroad�s lottery, you could lose your job, your financial security � everything you�ve worked for. Don't gamble with your future, or jeopardize your family's future.

Protect your rights by reporting unsafe conditions and all injuries, get disability insurance, talk with Designated Legal Counsel before giving a statement to the claim agent or a railroad official, get your own doctor to treat your injuries; and, if you are injured, don't do any activity that exceeds your medical restrictions.

Lastly, the important thing is to know your rights. Help out a friend by passing this article to them as well. If you should have any questions, please call us toll-free at 1-888-425-1212.