Railroad FELA Defense Tactics
Soon after an injury is reported railroads routinely use the following tactics in order to prepare their defense with the goal of minimizing or even negating the injured employee’s potential financial recovery under the FELA.
Railroad Claim Agents/Recorded Statements
The railroad claims department has one primary objective when an employee is injured – to save the railroad money. The railroad claims agent may represent that he/she is your friend and will take care of you during this difficult time following an injury. However, never lose sight of the fact that railroad claims agents want to obtain information to use against the injured employee to minimize financial recovery under the FELA. The claims agent will usually request a recorded statement and is trained to ask questions that will benefit the railroad’s FELA defense. Any statement given will be used by the railroad in defending the FELA claim. Thus, it is strongly recommended that no statement be voluntarily given to the railroad claims agent.
Railroads are regularly conducting video surveillance on their injured employees in an effort to “catch” the employees physically doing something that is “inconsistent” with the reported injuries and resulting physical limitations. Video surveillance can occur from outside the employee’s home, while traveling to/from medical appointments, or while engaged in normal activities of daily living such as shopping for groceries.
Once an injury occurs railroads will attempt to obtain as much information as possible to use in their defense of the FELA claim. In addition to requesting a recorded statement, it is common practice as part of the investigative process for railroad claims agents to obtain the injured employee’s medical records, take photographs and perform a reenactment, and interview co-employees and supervisors with knowledge of the incident. Armed with all of this information, the railroad will try to establish conflicting information to be used against the employee.
When an employee is injured and does not timely file a personal injury report, railroads will frequently hold investigations to question the employee as to why the injury report was not “immediately” filed, and will use this opportunity to aggressively question the injured employee concerning his/her injuries and his/her alleged fault in the incident. Railroads have asserted that an employee was injured off property when a personal injury report was filed late and have charged employees with falsifying an injury. It is very important to seek legal advice before a railroad disciplinary investigation because testimony provided will be used by the railroad against the injured employee in defending the FELA claim.
Timely medical treatment and an accurate history given to all medical providers detailing how the injury happened is critical to establish the medical connection between the incident and resulting injury. Railroads are skeptical of claims that do not require immediate medical care, and there are times when railroad officials will attempt to prevent or delay medical treatment so as not to make the injury reportable to the Federal Railroad Administration (FRA). Even if symptoms are not significant immediately following an incident, many times the symptoms will gradually worsen as the days continue to the point where extensive treatment is needed and the employee is required to miss work. A failure to seek medical treatment within days after the injury incident may be very damaging to the successful pursuit of a FELA claim.