When you read Straight Track, we are generally talking about how a work injury occurred and how to protect yourself and the claim before it is settled.
In response to inquiries we receive from railroaders who have already settled claims without any legal advice and then want to know what rights they have, we thought it would be a good idea to review with you the effect of a release. The railroad may call this document a settlement agreement, or another name, but it is a Release just the same, as you are giving up or releasing a right you had before you signed it.
A release is a contract between you and the railroad setting forth all of the rights and obligations each of you have now and in the future. It is much more than just an agreement by which the railroad pays you money in return for you ending a claim for damages arising out of your on-the-job injury.
When you sign a release, you waive your right to recover any future damages you may suffer because of a recurrence of your pain related to this on-duty injury. It's important, therefore, that you are back to your original good health or as well as you will ever be, before you even consider making a settlement and signing a release.
If there are any "understandings" you had with the claim agent when you settled the claim that are not specifically mentioned in the release, those "understandings" are not binding on the railroad and you have no legal right to enforce these understandings. What you thought you agreed to doesn't count; only the provisions written into release mean anything.
Examples of common misconceptions might better illustrate this point. Let's say that a year or two after you made a settlement with the railroad you have a flair up of the same pain you had after the work injury and you see your doctor who recommends time off work or surgery. Even if you and the claim agent had a gentlemen's understanding that you would be paid for future time off and any medical bills would be covered, in all probability, if the release doesn't mention that specifically, you have no enforceable right to the lost wages or medical cost reimbursement your insurance doesn't pay.
Perhaps the railroad arranged a job assignment when you settled the case and said you'll only work the yard switch engine and not be required to work road jobs. Five years later, however, you are told to mark up on the road or now work with the rest of your gang. What can you do? Nothing, unless the agreement restricting you to yard service is written into the release. Oral promises, even made in good faith, are not enforceable.
It is important, too, to read the fine print. It is quite common for the railroad to write into the release that "this release is applicable to any an all injuries sustained to and including the date of the release." This is enforceable by the railroad and only a problem if you have sustained more than one injury before the date of the release. For example: you sprain your ankle and are off for six weeks. After you return to work you line a defective switch and feel pain in you back, but you believe it's not serious and you lose no time from work and don't see a doctor. A few weeks later you and the claim agent, settle the ankle injury claim and the "any and all injuries to and including the date of this release" is written into the release. (Most railroads have this language printed into their standard release form). A month after the settlement you begin to feel pain radiating down your leg and return to the doctor. He tells you that when you lined that defective switch you ruptured a disc and that is the cause of your leg pain. He may recommend surgery. What can you do? Nothing, in all probability, because you released the back injury claim at the same time you settled for the ankle injury.
Another thing the railroad may try to do is put in provisions releasing the railroad from liability for occupational illness, repetitive trauma, hearing loss, carpal tunnel syndrome and the like, even though you are not claiming damages for these conditions. If later on you do have a claim for one of these conditions the railroad will contend that the "any and all injuries to and including the date of this release" applies and that you have released this claim years before you even knew you had it. Will the railroad get away with this, too? Maybe not, but you will surely have to retain a personal injury lawyer to attempt to set the release aside before you can begin to prosecute your claim for the occupational illness.
You may have noticed that in a couple of the examples I cited above I said that there was "probably" nothing you could do to make a new claim. That is the general rule. Of course every case depends on its own facts so it is possible that the release could be set aside on other grounds in those cases as well, but don't count on it.
By now you should be getting the idea that you may be no match for the railroad's law and claim departments. Is settling on your own a risk you are willing to take? Your safest course of action is to involve Hoey & Farina in your claim from the very beginning, even if you do not retain us. Our legal advice is free until you actually sign a contract of representation.
As we always say, "You may not need to hire a lawyer, but you do need legal advice." And, as I always add, "It's easier to keep you out of trouble than to get you out of it after you are in it."