Hoey & Farina received several emails from railroaders around the country in response to last week’s article on the duty to mitigate damages. The email below was typical:
From: [Straight Track Subscriber]
Subject: your article…
Your right, we don't know or understand "the duty to mitigate damages.” By reading your article, it seems to me that you all think everyone should just get another job, after getting injured. Even a lesser paying job.
I believe this kind of thinking is why some of our members seek other lawyers to handle their cases. Other lawyers don't come up with this kind of thinking or ideas.
If you can't do the job you get hurt at, then the railroad should settle with the thought of you not working and pay for what you should of made at your job with them, plus hurt and suffering. I believe in using union lawyers, but its hard to sell them sometimes.
/s/ [Straight Track Subscriber]
Because this issue is so important to protect an injured railroad employee’s rights, we wanted to answer the concerns raised in the emails because many readers could have similar misunderstandings of the law and the duty to mitigate.
DUTY APPLIES TO EVERY FELA CASE
In every FELA case tried to a jury, the judge will instruct the jury prior to deliberations that the injured employee has a duty to mitigate his damages by returning to gainful employment as soon as possible.
Attorneys who are Designated Legal Counsel have the experience and expertise to address this duty head on to make sure injured railroaders cannot be accused of failing to mitigate their damages. For example, our firm hires the best and most experienced vocational rehabilitation experts to explain to the jury why in many cases an injured railroad employee cannot return to any job, and therefore the railroad is liable for all of his lost damages.
On the other hand, there are cases where returning to work is possible, for example a relatively young injured employee who may have a college degree or another transferable skill. If these employees cannot return to their former railroad job, the law will not make the railroad pay for all of the future lost wages. The law states that damages for this particular employee would be railroad wages minus what the employee can earn in a job which he can still perform based on a cognitive, medical and interest analysis (See the original article for more on this subject.)
Because every case is different, an injured railroader should have a personal injury lawyer who understands the FELA law on the mitigation of damages, and who can prevent the railroad from unfairly using the duty to mitigate to its advantage.
The concern raised in the email that the duty to mitigate means "everyone should just get another job" is exactly what the railroad argues. Hoey & Farina's position is that an employee is only legally required to get a job that matches his education, abilities and interests.
If no such jobs exist in the employee's hometown, then the railroad is liable for all of his future lost wages.
If some lawyer's thinking is that an employee does not have to mitigate his damages in an FELA case, he is either just telling people what they want to hear, or he is in for a big surprise when he gets to trial.
An injured employee is much better off having a lawyer who knows the FELA law and who is well prepared at trial for the railroad's arguments on the duty to mitigate.
Hoey & Farina always welcome feedback on any of our Straight Track articles. As always, you can call us, your Designated Legal Counsel, for advice on this or any other FELA issue any time.