Straight Track #8: Must I Give A Statement To The Railroad About My Injury?

"Must I Give A Statement To The Railroad About My Injury?"

Frank Van Bree
Hoey & Farina Of Counsel
1-888-425-1212

Railroad Claim/Risk Management Departments have become much more aggressive in defending and investigating employee injury claims.

The primary function of these departments, whatever name they go by, is to settle FELA claims as quickly and cheaply as possible.

Tactics vary from railroad to railroad, but their activities focus on two areas: establishing that there was no negligence on the part of the railroad which caused or contributed to the injury, and establishing that the injured party's own actions caused or contributed to the injury.

To this end, many railroads have begun to utilize management personnel from other than the Claim Department to conduct what can only be described as informal investigations. Much of this activity is aimed at taking statements from the injured party right after the occurrence when he is vulnerable and least able to give thoughtful, reasoned answers.

These statements taken by departmental supervisors are not usually the written or recorded type that the claim agent will take. Rather, they appear to be couched in terms of informal conversation or necessary information gathering. These interviewers/supervisor then make detailed memoranda which become a part of the Claim/Law Department file which will be used in defending the claim/suit. The more of these statements which are obtained by this method, the greater becomes the possibility of confused, inconsistent and incomplete accounts by the injured party as to what happened. This is precisely what the Claim/Law Department wants, because it allows them to attack the credibility and reliability of the injured party at settlement negotiations and in front of a jury.

To be sure, the railroad has the right to know what happened. For this reason every railroad has an injury/accident/incident report which must be filled out by the injured party before he leaves the property/within 24 hours/when he realizes that he is injured or whenever the particular railroad's rule requires.

The informal statement referred to above is in addition to this report. No one specific procedure for dealing with these so-called informal inquiries can be suggested. It is recommended, however, that the injured party refrain from giving these informal statements if at all possible.

Here is what we suggest you do if you are injured. Tell your fellow crewmember or other employee with whom you are working or who is nearby that you have been hurt. If defective equipment is involved, have him look at it if possible. Report the injury to whomever, and by whatever means your rules require. If you are physically and emotionally able, fill out the injury report being sure to describe the unsafe condition which caused you to be injured (defective switch, unstable ballast, defective handbrake, etc.) and list every part of your body which has been injured. The pain in your knee, which is slight now compared to the pain in your back, may turn out to be the more serious injury.

Tell the supervisor you want to go the hospital Emergency Room immediately. You can do this even before completing the injury report if you are seriously hurt. Remember, you, not the railroad management have the right to decide if you should have medical attention. If the supervisor obstructs this right in any way or refuses your request, report this to a union officer ASAP, because the supervisor has probably violated a Federal Regulation and this should be reported to the Federal Railroad Administration by your union.

When the supervisor asks you what happened-the first informal statement-keep your answer as short and specific as what you said or would say on the injury report, such as defective handbrake on car XYZ 1233456, defective switch at the crossover from the east to west main, loose/unstable/no ballast about a car length north of the defect detector, etc. Do not engage in conversation which speculates as to what might be wrong with the handbrake/switch, etc or what you might/could/should have done to avoid being injured.

When you are on your way to the hospital you are probably in so much pain that your powers of concentration and recall are seriously impaired. When the railroad manager asks you what happened-the second informal statement-refer him to your injury report or the supervisor who received your initial account of what happened. You are not thinking clearly enough to discuss the facts surrounding your injury at this time.

At the hospital you may be required to produce a urine sample for controlled substance testing. There are specific FRA regulations governing this with which you should be familiar. There is really not much you can do about this, as it is a federal not railroad requirement.

At the hospital someone on the staff will ask you what happened. This becomes part of your permanent medical record which will be used at settlement conferences and at a trial, so be consistent with what you put on the injury report or what you said to the supervisor. Keep the answer brief and to the point. "I hurt my back throwing a defective switch." "I turned my knee on unstable ballast, etc." Don't ramble on "talking railroad." The hospital staff won't understand what you are talking about and may write down a short version of what they think you said with the result that they get it all wrong. You can't refuse to tell the hospital staff and doctor what happened, but you can and should keep the explanation simple.

On the way back from the hospital the railroad manager may again try to talk to you about how you got hurt-the third informal statement. By now you are either so exhausted from what you have been through and/or have received pain medication, all of which impair your ability to think clearly. At this point the tendency to blame yourself for the injury becomes very strong, no matter what the facts are. Therefore, and particularly, if you have been given medication you should not talk about how you were injured.

At this point, if they haven't already tried to do this before you went to the Emergency Room, the railroad may want you to reenact the injury. This is just another strategy the railroad uses to try to show that you caused your own injury. You should not engage in any reenactment (unless the FRA or the NTSB schedules it-this usually is several days after the injury and usually only when a death or other catastrophe is involved).

You should decline because, obviously, the conditions are now different: you may injure yourself further, you are under medication and are still in pain and probably cannot concentrate sufficiently to perform a reenactment. Simply state firmly that you are upset/fuzzy minded/emotionally drained and want to go home now so that you can go to bed and get some rest.

Within a day or two you can expect to be contacted by some senior manager or official-the fourth informal interview-who will ask how you are doing. Be sure to tell him that you are still taking medication/have a doctor's appointment, etc., and be sure to list all your aches and pains. By this time you should have chosen the doctor who will treat you. See him ASAP and follow his recommendations to the letter with respect to medication and activity. Tell the manager or whatever railroad official calls you that this is what you are doing.

You can expect follow-up calls on a daily or weekly basis, depending on the railroad, seeking the same information and probably trying to find out more about the circumstances of your injury-the fifth informal interview. All of the foregoing advice still stands i.e. refer the manager to your injury report and don't go beyond that.

As soon as you are able you should talk to a lawyer. Please note, I said talk to a lawyer-not necessarily hire one. In this conversation you will be advised as to the legal issues surrounding your injury, your rights, and how best to proceed and protect your interests.

Railroad managers have highly skilled and trained Law Departments to advise them as to how to protect the railroad's interests. You are no match for them on your own. To protect yourself, get the professional advice you need to level the playing field. Our lawyers are available on 24-hour call at (888) 425-1212 to assist you at no charge, and with no obligation to retain us. Your union has arranged for this service, so take advantage of it and be protected.