Straight Track #264: Third Time's A Charm

Third Time's The Charm

Gary Babiarz, Chief Investigator
Hoey & Farina, P.C.
babiarz@hoeyfarina.com

Emergency! Emergency! Emergency! is what the train crew is supposed to yell over the radio when there is a wreck or a major incident on the railroad. With boats and planes, it's Mayday! Mayday! Mayday! And when space aliens are invading the planet, Will Robinson's robot yelled, "Warning! Warning! Warning!" It appears with things that are supposed to protect you they're said in 3's.

So here it goes.

REPORT THE INJURY!
REPORT THE INJURY!
REPORT THE INJURY!

I just spoke with another injured railroader who needed some help. He informed me that he was injured last month and now his doctor says he needs surgery. He wanted to know what to do. The first thing I asked him was how his injury happened, and he told me. Then I asked him to read me a copy of his accident report, but there was silence and more silence. Finally, he said, "I didn't report it" and went on to explain why.

Under the Federal Employers' Liability Act (FELA), the burden of proof is on you, the injured railroad worker, and not the railroad. You have to know your rights and you have to protect them. The accident report is your first piece of evidence in doing just that. If you do not fill out an injury report the railroad will use that against you in any number of possible ways. The railroad will suggest your injury could have happened somewhere other than at work. It could bring you up on an investigation for failing to comply with the rule to immediately report an injury (yes, even if they suggested to you to wait to report it). Reporting your injury is the first step in protecting your FELA claim.

To help you correctly complete a personal injury report, please read the following Straight Track articles:

YOU DO NOT HAVE TO GIVE A
STATEMENT TO THE CLAIM AGENT!

Three times probably isn't enough for this one! Once again, you do not have to give a statement to the claim agent! By the time the claim agent is asking you for your statement, he has already examined all the evidence, pictures, and has taken statements from everyone he could. The claim agent knows what happened and has already developed a defense theory. He is just trying to lock you into a story that fits with his facts and diminishes the value of your case. Remember, the claim agent is not there to help you! The claim agent is the front man for the railroads legal department. He understands from day one that your case may be litigated and is working to protect the railroad's interest. The claim agent earns his keep by saving the railroad money. Before you talk to the claim agent, call Hoey and Farina. Let us help you sort out the facts and point out how the facts can either help or hurt your claim.

To better understand the claim agent's role, please read the following Straight Track articles:

STRAIGHT TRACK #13
What's The Claim Agent's Job?

STRAIGHT TRACK #194
When Is It Advantageous To Deal With A Claim Agent?

STRAIGHT TRACK #216
"Don't Worry": Words of Comfort or Deception?

STRAIGHT TRACK #243
Deal or No Deal: The Railroad's Game

TREAT WITH YOUR OWN DOCTOR!
TREAT WITH YOUR OWN DOCTOR!
TREAT WITH YOUR OWN DOCTOR!

The claim agent or case manager often tells the injured employee to treat with the company doctor. On most railroads, your insurance allows you to pick from any number of doctors you want. You should get the best medical care you can find. The company doctors only have the right to examine you. They don't have the right to treat you. The company doctor is on the railroads payroll and often ends up testifying in court on behalf of the company and against you. Company doctors often testify on how well you recovered, even if you haven't. And, if you really haven't recovered, they'll suggest it's because of preexisting conditions or some degenerative disease.

To better understand how to manage your medical treatment, please read the following Straight Track articles:

STRAIGHT TRACK #23
Your Doctor Must Be Your Best Friend;
What The Doctor Doesn't Know Can Hurt You

STRAIGHT TRACK #183
Protecting Your Rights At The ER

STRAIGHT TRACK#189
The Railroad In The Exam Room

STRAIGHT TRACK #197
Talking To Your Doctor

STRAIGHT TRACK #226
Railroad Employees Medical Treatment Act

STRAIGHT TRACK #236
Defense Medical Exams

BEWARE OF SURVEILLANCE!
BEWARE OF SURVEILLANCE!
BEWARE OF SURVEILLANCE!

If you are injured, it's not a matter of whether or not they are going to put you under surveillance it's a matter of when and where they are going to do it. Even if you haven't retained an attorney and are dealing directly with the claim agent, the railroad will be watching you. Never attempt to do anything exceeding your medical restrictions, unless it is under the advice of your doctor.

Professionals hired by the railroad to take surveillance of you have been known to set injured railroad workers up by flattening tires, loosening lug nuts and even planting damsels in distress. They have the latest and greatest surveillance technology available – equipment so small you won't have the slightest inclination you're being watched. Go ahead and Google surveillance equipment on the internet and see what you're up against. We have tapes after tapes after tapes of clients who didn't know they were being watched. It isn't Candid Camera. It's no joke. Don't end up being an unknowing "movie star."

To be prepared for surveillance, please read the following Straight Track articles:

STRAIGHT TRACK #235
And The Oscar Goes To... H&F's Video Recommendations

STRAIGHT TRACK #3
If Injured, Be Aware: Rail Road Surveillance Can Ruin Your Case

STRAIGHT TRACK#124 & #125
Smile! You're On Candid Camera Part I | Part II

Finally, and most importantly, if you are injured, call Hoey & Farina for free advice. We are experienced FELA attorneys and Designated Legal Counsel. We are available 24 hours a day, 7 days a week at 888-425-1212.