The subject of this article deals with settling a claim too quickly rather than waiting too long. If you wait too long to pursue your claim, you may lose your claim.
The law holds specific rules regarding the different time limits you have to file a claim under different circumstances and against different defendants. (For more on statute of limitations, see my article Straight Track - Statute of Limitations).
But like waiting too long, settling a claim too soon can be very harmful to you and your family. Railroads today are aggressively trying to take control of personal injuries claims. Usually after a railroader suffers a work injury, a railroad management official is right there in the emergency room trying to get control over the injured employee by controlling his medical care and by controlling HIM.
After the ER, the injured employee is handed off to the claim agent and the claim agent takes control. Control methods used by the railroads include the offering of wage continuation or loans and the payment of medical bills. As you may know, under the FELA - Federal Employers’ Liability Act, the railroad has NO obligation to continue salary when an employee is off work due to an on-duty injury. The offering of wage continuation or loans, in this way, becomes a powerful tool to lure the injured employee into the claim agent’s web.
After the employee’s medical care progresses, but still early on in the process, the claim agent usually starts to talk settlement. A typical scenario has the injured employee back at work for a few weeks when the claim agent starts contacting the employee. The claim agent says he is just checking up on how the employee is doing, but he is really trying to keep control over the claim. Railroads know that injury claims where the employee is not represented by an attorney typically settle for about 10% of the amount of the same claim of an injured employee who is represented by FELA Designated Legal Counsel.
As soon as the employee is back to work, the claim agent presses settlement. Some astute claim agents, using reverse psychology, will keep calling the employee after he is back to work and tell the employee that he does NOT want to settle. Amazingly, the reverse psychology can work, and the more the claim agent calls to say he does not want to settle, the more some employees begin to want to settle their claim.
WHERE PROBLEMS ARISE
The most problems arise when an employee settles a claim after he is back to work, but before the employee knows whether he is really able to do his job under all conditions. As a rule of thumb, an employee who misses significant time from work or has an invasive medical procedure should wait six months to one year after he is back at work before even thinking about closing out a claim.
Other problems arise when the claim agent convinces the employee to settle too soon after he is back at work. To settle the claim, the claim agent forces the employee to sign a “Release of All Claims” in exchange for what is usually a modest payment. The release is similar to a Statute of Limitations in that it can work as a bar to a claim.
The problem case arises when the employee is back at work for a few days or weeks and settles with the claim agent, who says the injury is just a sprain or strain to get the railroader to settle cheap. After the release is signed, and after the employee is working for a few weeks, the injured body part starts acting up again. The injured employee will go back to the doctors. After more medical care, it is discovered that the strain or sprain is in actuality a serious injury, for example, a disc injury or torn cartilage or torn ligaments. The real tragedy is that often times, after an injury and up to the point of signing a release, all of the medical care the injured employee has received has been provided by company-selected doctors. Post-signing the release, and after the injury acts up, the injured employee typical will go see his own doctor. His own doctor will complete full diagnostic testing – often for the first time -- which reveals the more serious injury.
To make matters worse is what typically comes next. The railroad tells the employee that because he signed a release, he is on his own. The railroad will refuse to process medical bills after the release is signed and if the employee starts missing time because of the injury, wage continuation is out of the question.
BREAKING THE RELEASE
There are a number of court cases that have had to deal with this very same situation. Unfortunately, I suspect that this happens more often than one would like to think, but many injured employees never do anything after signing releases to pursue their rights under the law.
In those cases where the railroad and the employee are mutually mistaken about the injury, or where the railroad obtains the release by fraud, the courts sometimes will allow the injured employee to reopen the case. The important factors to look at are:
- The time between the injury, return to work and settlement (a shorter time is better to break the release).
- Whether the employee was represented by counsel.
- What the medical evidence was at the time the release was signed and what the medical evidence is after the injury manifests itself (for example, is the injury the same with only healing not as expected, or is a previously diagnosed back strain really a herniated disc?)
- Did the employee seek his own medical care or was he treated by company doctors up to the time of the release?
- How much money was paid for the release? (for example, was the payment close to what the employee lost in wages or much more?)
These are some of the factors a court will look at in deciding whether to break a release. But remember, you don’t want to be in this position.
THE BEST WAY TO AVOID TRYING TO BREAK A RELEASE IS NOT TO SIGN A RELEASE UNTIL AFTER:
(1) you are back to work for at least six months or more,
(2) you have seen your own doctor to diagnose your injury, and
(3) you have had an opportunity to talk to designated legal counsel.
Many times, we offer advice to injured employees on how to settle a case without getting officially involved. At Hoey & Farina, we considered this part of our duty as FELA Designated Legal Counsel. Make use of your designated counsel before you sign a release with the claim agent.