One of the most important damage items of any FELA case is the economic loss (lost wages) suffered when a railroader can no longer do his railroad job.
Often the gross lost wages figures are astronomical. Even jurors who don't believe in awards for non-economic loss such as pain and suffering will award lost wages.
Railroads are savvy to huge wage loss cases that result in big verdicts. Long ago, railroads fought for and won legal loopholes to avoid paying for the wage loss sustained after negligently crippling an employee. This loophole is called “the duty to mitigate damages.”
Basically, the duty to mitigate damages loophole allows a railroad to reduce the amount of damages it owes an injured employee for lost wages after a work injury. The railroad is permitted to offer evidence and argue that the employee must return to some job, any job, after he is injured and no longer physically able to do railroad work.
Most railroads have in-house vocational officers whose only job is to offer employees bogus jobs. Usually the claim agent is secretly in charge of what job is offered to which employee. It is common for the railroad to offer the same job to many employees off due to a work injury.
HOW THE DUTY TO MITIGATE DAMAGES AFFECTS YOUR FELA CLAIM
If you are hurt on the job, it is important to understand how the duty to mitigate damages affects your case. One of the most important things you can do is undergo an independent vocational rehabilitation evaluation of your own. Vocational rehabilitation is a science that recognizes to make a successful transition from your old railroad job to a new job.
A new position must match an injured employee's interests, physical abilities and cognitive capacity. Too often, the railroad will ignore these basic tenets. For example, the railroad will try to force an injured employee who worked outside all his life into an office cubicle doing computer work. When the injured employee cannot work under those conditions and quits, the railroad cries that the employee failed to mitigate his damages.
Under such circumstances, it is important that an independent vocational rehabilitation witness testify that the placement was doomed to failure and just a ruse on the part of the claim department. Most jurors understand vocational rehabilitation principles when they are properly explained and will see through the railroad's fake claim of failure to mitigate.
There are often limits on a railroad's right to raise a mitigation of damages defense. For instance, under some circumstances you may not be required to move to a new city to take a job offered by the railroad. In other cases, you may not be required to accept demeaning employments.
RETURN TO WORK RELEASE
Railroads, in serious cases, attack an injured employee's wage loss claim almost as soon as an employee is injured. Railroads employ rehabilitation nurses who pressure doctors to release injured employees to work, any work, as soon as possible after a work injury. Once the return to work release is secured, the case is transferred to the railroad vocational rehabilitation officer and the job offers begin.
An injured railroader must bear in mind it is his or her legal duty to return to gainful employment as soon as practicable after a work injury. Hoey & Farina firmly believes that if suitable employment is available, that is if a job that fairly matches an employee's interests, physical abilities and cognitive capacity exists, it is in the employee's best interest to be gainfully employed as opposed to not. Hoey & Farina, through referrals to independent vocational rehabilitation professionals, has helped many injured railroaders return to work in jobs that are appropriate for the injured employee.
Most railroaders are not familiar with concepts of duty to mitigate and vocational rehabilitation principles. It is crucial to obtain advice from an experienced FELA railroad accident lawyer at Hoey & Farina about this process early in the case.