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This article was contributed by Robert Harrington of Dunn Harrington LLC. Follow this link for information about the SMART-TD Designated Counsel.

The railroad personal injury report is generally the first exhibit used at any Federal Employers’ Liability Act trial in the country. If completed correctly, accurately, and not under duress, it can be the most-useful tool to guarantee a fair and reasonable recovery in a FELA case. It is the functional equivalent of a police report in a criminal matter. If completed incorrectly, it will be the railroad’s most-effective sword to deny employee recovery.

Negligence is the most hotly contested issue in any FELA case. This is because proof of negligence is required before an employee can trigger a recovery against their railroad employer. And, even if negligence is proven, “contributory negligence” on the part of the employee can serve as a damage reducer. For example, if a jury finds the railroad 50% at fault and the employee 50% at fault and awards $100,000.00 in damages, the court reduces those damages in accordance with the employee’s own fault (in this scenario the damages will be cut in half).

Information Requested in Railroad Personal Injury Reports

Railroad personal injury reports vary. Generally all ask for the same information. The basic template for all railroad personal injury reports includes:

  • Background information (i.e., name, address, date of injury, location of injury, etc.)
  • Description of injury.
  • How did the injury occur?
  • Who is at fault?
  • Were they any witnesses to your injury? Who were you working with?
  • Will you seek medical treatment?

The personal injury report is both the employee and the employer’s first opportunity to document information quickly after the incident when it is often most fresh. Juries often consider the injury report the most-accurate reflection of what occurred related to the incident and resulting injury.

Steps to Take Following an Injury

For this reason, the report needs to be completed in an accurate, timely and truthful manner. The following critical steps need to be followed after you are injured and before you complete your personal injury report:

  • Notify a crewmember or someone you are working around that you have sustained an injury, thus corroborating the incident;
  • If possible, show the crewmember or nearby fellow employee the condition that caused your injury (i.e., debris in the walkway, etc.);
  • Notify your immediate supervisor that you are hurt and can no longer continue working;
  • Advise your supervisor that you need medical attention;
  • Contact your local chairperson or another union representative to advise them you are obtaining medical treatment related to an on-duty injury;
  • Contact Designated Legal Counsel (DLC) to obtain legal advice about the specific facts of your situation;
  • Do not complete your injury report while at the hospital or under the influence of any medication;
  • Do not allow a trainmaster or any other railroad supervisor inside the hospital or doctor examining room to question you;
  • Be certain you are rested and not under the influence of any medication prior to sitting down to complete your report;
  • Make sure to follow-up with YOUR own doctor. (If you don’t have a relationship with a family or primary care doctor – establish one now).

Many of us think of the SMART-TD’s Designated Legal Counsel as “The FELA guys” who come to our Local meetings.  Members in Minnesota learned DLC does a lot more for our organization.

The recent two-person crew victory in the state didn’t magically happen. It took many people and many years to pull, push, and drag it over the finish line, says SMART-TD Minnesota State Legislative Director Nick Katich.

And Designated Legal Counsel law firm Hunegs, LeNeave, and Kvas played a major part by stepping up and making a major contribution, he said.

“We got our bills through House and Senate Transportation committees and the next stops were in Judiciary,” Katich said. “While railroaders can speak to why a two-person crew is necessary, it takes a lawyer to testify before Judiciary and be able to cite case law off the cuff.”

HLK had a representative who, in two separate hearings, volunteered his time, talent and vocation to the betterment of rail labor and a successful outcome for the bill.

“I fear we would not have made it out of committee,” said Katich.  “We all owe a debt of gratitude.”

Please thank your DLC for all they do to support our Union, workplace safety, and worker rights.

Over the past few years, some law firms who handle mass torts and advertise on a national scale through television and social media have focused their mass marketing on active and retired railroaders who have been afflicted with various forms of cancer and repetitive trauma orthopedic injuries. These firms represent to the public that they are “FELA specialists” with years of experience litigating against the rail industry and, not surprisingly, have generated a substantial client base. Numerous claims have been filed in various courts around the country with an underlying strategy of trying to overwhelm various railroads to the point of forcing settlement of all claims.
But, in reality, the attorneys handling these claims are neither members of ARLA nor railroad union Designated Legal Counsel. A path of destruction has ensued as the railroads have chosen fight over flight in addressing this onslaught of FELA claims. Just a few case examples include:
Holmes v. Union Pacific Railroad, Case No. SC98673 (Mo. 2021) – The Missouri Supreme Court affirmed dismissal of wrongful death FELA cancer case for counsel’s “carelessness, inattention, and deliberate disregard” in failing to timely appoint a personal representative of decedent’s estate as required under the FELA.
Wilant v. BNSF Ry. Co., Case No. N17C-10-365 (Del. Super. 2020) – FELA bladder cancer case dismissed on summary judgment following Daubert ruling striking plaintiff’s general medical causation expert.
Harder v. Union Pacific Railroad, Case No. 8:18-cv-58 (D. Neb. 2020) – Machinist diagnosed with NHL, FELA case dismissed on summary judgment following Daubert ruling striking plaintiff’s medical causation expert.
Kosin v. Union Pacific Railroad, Case No. 4:17-cv-2435 (E.D. Mo. 2019) – FELA bladder, lung and prostate cancer case dismissed on summary judgment as time-barred under FELA 3-year statute of limitations following decision by counsel to withdraw allegations that death was caused by exposures at the railroad.
Collins v. BNSF Ry. Co., Case No. 4:17-cv-3572 (S.D. Tx. 2019) – TY&E employee diagnosed with colon cancer, FELA case dismissed on summary judgment following Daubert ruling striking plaintiff’s industrial hygienist and medical causation experts.
York v. BNSF Ry. Co., Case No. 1:17-cv-1088 (D. Colo. 2019) – TY&E employee diagnosed with bladder cancer, FELA case dismissed on summary judgment following Daubert ruling striking plaintiff’s medical causation expert.
These cases all resulted in court losses for the plaintiffs, families not being made whole and moreover established negative precedents for future cases. The clients in the end sadly paid the price of these so-called FELA “experts” whose advertising presence dwarfed than experience in handling railroad-related cases.
If bringing a case against a carrier, the best and most effective choice is to engage a member of the Academy of Rail Labor Attorneys or a union-endorsed Designated Legal Counsel. They have been vetted by rail labor organizations, have proven experience, follow strict codes of conduct and will commit to giving each and every FELA case the precise focus it deserves while fighting for the best outcome for clients.
A list of SMART-TD Designated Legal Counsel can be found here.
More information about the Academy of Rail Labor Attorneys.

Willard James Moody, Sr., a well-regarded attorney and former state legislator who served as a longtime Designated Legal Counsel (DLC) for the United Transportation Union (UTU) and advocated on behalf of railroad workers in the court of law throughout his life, passed away March 27. He was 94.
“Willard devoted his professional life to securing and strengthening the FELA (and) seeking justice for thousands of injured railroad workers over a career that spanned seven decades,” said James A. Stem, retired SMART Transportation Division/UTU national legislative director and executive director of the Academy of Rail Labor Attorneys. “We all stand on his shoulders.”

Moody Sr.

Born June 16, 1924, Moody was a U.S. Army veteran and served in World War II in Europe. Upon his return home, he attended college, then law school, before founding what is now the Moody Law Firm in Portsmouth, Virginia.
Moody turned his attention to politics after establishing his practice and was elected to the Virginia House of Delegates, serving there from 1956 to 1967, then in the Virginia Senate from 1968 until 1984. He never lost an election.
In addition to serving as a DLC, Moody donated to the UTU’s political action committee and later founded the Railroad Museum of Virginia in Portsmouth. His legal career culminated with his induction into the National Trial Lawyers Hall of Fame in April 2014.
Moody is survived by his wife of 71 years, Betty Covert Moody; daughter, Sharon Edwards, and her husband, Stephen; two sons, Willard “Will” Moody, Jr., who continues his father’s legacy as a current SMART TD DLC, and his wife, Courtney; and Paul Moody and his wife, Sarah; three sisters, Bertha Foster, Sue Bell and Mary Ellen Romanczyk; six grandchildren; six great-grandchildren; and a host of extended family and friends.
Visitation will be 3 to 5:30 p.m. March 31 at Sturtevant Funeral Home, Portsmouth Boulevard Chapel, 5201 Portsmouth Blvd., Portsmouth, VA 23701. A funeral service will be 11 a.m. Monday, April 1, 2019, at Green Acres Presbyterian Church, 3135 Hanley Ave., Portsmouth, VA 23703, by the Rev. Elizabeth Hilkerbaumer. Burial will follow in Greenlawn Memorial Gardens. Following the burial, a reception will take place at the home of Will and Courtney Moody, 4201 Manchester Road, Portsmouth, Virginia.
In lieu of flowers, memorial donations may be made to the Railroad Museum of Virginia.
Read the complete obituary or leave condolences at the funeral home’s website.

The office of Designated Legal Counsel Willard J. Moody, Esq., based in Portsmouth, Va., has extended an offer of service to SMART Transportation Division members who may have been unjustly fired for alleged Family Medical Leave Act (FMLA) violations.
Television station WNYT NewsChannel 13 out of Albany, N.Y., reported in early January that CSX was investigating more than 30 SMART TD members after they took FMLA days over the Christmas holiday.
FMLA, passed in 1993, protects workers’ jobs and allows for unpaid leave from work for medical or family reasons.
Moody said in an email that about 150 CSX employees were taken out of service and targeted for investigation for the alleged violations. Pending the results of the investigation, those workers could lose their jobs.
“We believe that CSX’s handling of these employees may violate federal law. Accordingly, we are contemplating legal action on behalf of these individuals,” Moody said.
Moody said his office is available for a free consultation for workers who have been pulled out of service and are being subjected to adverse action by CSX for alleged abuse of FMLA leave.
“There are limitations on how railroads may treat employees who they believe may have misused FMLA leave, and we believe CSX may have overstepped its legal rights in doing what it has done to employees who are currently out of service,” Moody said.
To contact Moody or Nick Thompson, an attorney with Moody’s firm with experience in FELA and FMLA cases, call 800-368-1033.

Kiker

Retired UTU Designated Legal Counsel (DLC) David B. Kiker, 70, died Saturday, Sept. 2. An attorney for the law firm Rossi, Cox, Kiker & Inderwish in Aurora, Colo., Kiker served as DLC until his retirement in 2003.
Kiker is survived by his wife of 45 years, Pamela Seale; three natural children, John (Jennifer) Kiker, Chris (Kate) Kiker and Polly (Spencer) Gilligan; embraced children, Ashley (Roy) Sakker and Turner (Angela) Lang; mother, Dorothy Kiker; sister, Kelly (Keith) Beitler; sister, Emily Kiker; 11 grandchildren and many other family and friends. He was preceded in death by his father, George Kiker; birth mother, Shirley Kiker; grandmother, Alma Webb; and his aunt, Jane Webb.
Funeral services will be held Friday, Sept. 8, at 11 a.m. at the Littleton Church of Christ, 6495 South Colorado Blvd., Centennial, CO 80121.
In lieu of flowers, memorial contributions may be made to The Adoption Exchange, 14232 East Evans Ave., Aurora, CO 80014; The Barbara Davis Center for Childhood Diabetes, 1775 Aurora Ct., Aurora, CO 80045; or to any animal cause of your choice.
Click here to read Kiker’s full obituary or to leave condolences for the family.

If you are injured on the job, you have powerful rights under the Federal Employers’ Liability Act (FELA). All of SMART TD’s Designated Legal Counsel (DLC) are chosen because they specialize in handling FELA claims and are experienced in dealing with railroad claim agents and railroad lawyers.
A SMART TD DLC is your agent, and their job is to represent you. They are on your side.
SMART Transportation Division has added two lawyers to our DLC teams: Michael C. Terranova and Andrew J. Thompson.

Terranova

Michael C. Terranova is the grandson of a Union City laborer and the son of a union sheet metal worker. He went to law school at the Chicago Kent College of Law where he focused on labor and employment law. While in law school, Terranova learned the ins and outs of the Railway Labor Act, National Labor Relations Act and FELA. He also worked for a law firm that was involved with collective bargaining agreements and helped injured union workers. Since being admitted to practice law, Terranova has focused his practice on representing injured union workers. He is a member of the Academy of Rail Labor Attorneys (ARLA) and currently works for the Cogan & Power, P.C. law firm in Chicago.
Members can contact Terranova by calling 312-477-2500 or via email at mterranova@coganpower.com.
To learn more about Terranova, visit www.coganpower.com.

Thompson

Andrew J. Thompson’s inspiration for advocating on behalf of railroad workers began generations ago, as his great-grandparents, grandparents and many extended family members worked on the railroad and were active in rail unions. He obtained a political science degree, followed by a law degree from Case Western Reserve University. He began working at the Chattman, Gaines & Stern, L.P.A., law firm where he learned the nuances of railroad law and sharpened his skills as a trial attorney. Thompson has successfully handled railroad cases in state and federal courts in Ohio, New Jersey, Pennsylvania, West Virginia, Florida and Illinois. He has experience handling union labor matters under FELA, the Federal Rail Safety Act (FRSA), Railway Labor Act and the National Labor Relations Act. Thompson also has experience with negotiating collective bargaining agreements, handling grievances before a Public Law Board, and arguing cases in arbitration.
Thompson regularly takes time to attend union meetings and other functions to speak to railroad employees about their legal rights. He is a member of the ARLA and practices law with the Shapero & Roloff Co., L.P.A. in Cleveland.
Members can contact Thompson by calling 216-781-1700, toll-free 800-321-9199; or via email at athompson@shaperoroloff.com.
To learn more about Thompson, visit www.shaperoroloff.com.

Petru, AnthonyDLC
Petru

Designated Legal Counsel (DLC) Anthony Petru has been chosen as coordinator of the DLC Program. Petru replaces long-time DLC member and Coordinator Steve Young, who retired earlier this autumn.

Petru is a long-time DLC with years of experience in the rail industry. He graduated from University of California, Berkeley, and attended law school at the University of San Francisco. He joined the law firm of Hildebrand, McLeod & Nelson in 1980. Petru is a member of the American Trial Lawyers Association and the Academy of Rail Labor Attorneys.

“We appreciate Anthony’s willingness to serve as coordinator and look forward to working with him in his new position,” said Transportation Division President John Previsich.

Young, Steve
Young

Meanwhile, Previsich lauded Young’s service to our membership. “Steve’s contribution to the DLC program while serving as coordinator cannot be overstated, nor can his many other contributions to the union overall. Steve has been of great service to this union for over 40 years, beginning with holding office at the local and general committee level through his continued affiliation during his professional career. His contribution to the education and training of our members through his presentations at our regional meetings is legendary. Steve’s presence and leadership will be missed.”

Members can reach Petru by calling (800) 447-7500, visiting his website www.hmnlaw.com or by visiting our Designated Legal Counsel pages.

John J. Naughton, former associate designated legal counsel of the Brotherhood of Railroad Trainmen and United Transportation Union, died Oct. 29, 2015.

Naughton fought for the rights of railroad and other transportation workers as an employee of the former firm of Henslee, Monek & Henslee. As a part of the firm, Naughton argued before the U.S. Supreme Court several times to secure the right of rail labor organizations to have DLC programs and inform the members of their rights under the various laws affecting rail labor.

Naughton is survived by daughter Nora Naughton; son Thomas (Tracey) Naughton; grandchildren Kevin, Margaret and John; sisters Mary Naughton and Dorothy Naughton and many others. He was preceded in death by his wife Vivian T. Moore and by his brother Tom Naughton.

Click here  to view Naughton’s obituary or to leave condolences.

For too many years, many railroads have tied managerial bonuses to low reportable injury rates among employees, creating a culture of fear through harassment and intimidation – a culture that discourages the reporting by workers of on-duty injuries and allows railroads to claim an industry safety award accompanied by glowing press releases as to its low employee-injury rate.

After collecting file drawers full of verified complaints from members of carrier harassment and intimidation following an on-duty injury, the UTU’s National Legislative Office was successful in shepherding through Congress the Federal Rail Safety Act of 2007.

It purpose is to protect rail workers from retaliation and threats of retaliation when they report injuries, report that a carrier violated safety laws or regulations, or if the employee refuses to work under certain unsafe conditions or refuses to authorize the use of any safety related equipment.

An employer also is prohibited from disciplining an employee for requesting medical or first-aid treatment, or for following a physician’s orders, a physician’s treatment plan, or medical advice.

Retaliation, including threats of retaliation, is defined as firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to rehire, intimidation, reassignment affecting promotion prospects, or reducing pay or hours.

What was missing was tough enforcement of the law – but no more.

For the seventh time in recent months, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has taken strong action against a railroad for violating the law – and fully protecting the whistle-blowing employees who suffered harassment and intimidation by the offending carrier.

In the latest OSHA action, Union Pacific was ordered in August to pay more than $600,000 in back wages, punitive damages, compensatory damages and legal fees to three employees for improper termination and suspension – all in retaliation for reporting workplace injuries, said OSHA.

Said OSHA: “Union Pacific Railroad has created a climate of fear instead of a climate of safety. The company must take immediate steps to change this unacceptable pattern of retaliation.”

One UP conductor working out of Kansas City, Mo., was terminated after making repeated complaints to the railroad’s hotline about fall and trip hazards, missing roadway signs, other safety issues and reporting that a supervisor had violated safety procedures during a field test, said OSHA. The conductor was also cited for having a tattoo the railroad deemed as creating a hostile work environment – a tattoo OSHA said commemorated his prior military service.

A second conductor, working out of Kansas City, was suspended without pay after making several complains about “rough spots on the track,” said OSHA.

And a UP engineer, working out of Tucson, Ariz., was improperly terminated after reporting a workplace injury, said OSHA in imposing the awards and fines.

Separately in August, OSHA ordered BNSF to pay a conductor $300,000 to cover back wages, attorney’s fees and damages for improperly suspending her after she reported an injury. According to OSHA, the conductor twisted a knee in a BNSF yard in Seattle.

Although BNSF officials followed her to the emergency room, according to OSHA, the railroad later accused her of failing to report the injury in a timely manner and suspended her for 30 days without pay. BNSF also assessed her points, alleging she needed additional knowledge, training or behavior focus, said OSHA, which called that action “disciplining an employee who reports a work-related personal injury.”

In other recent OSHA actions:

* Norfolk Southern was ordered to pay a former employee more than $122,000 in compensatory and punitive damages, plus attorney fees, for improper termination after the employee reported an on-duty injury. OSHA also issued a startling statement validating what many UTU members have long suspected – that Norfolk Southern’s culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record and continue its 22-consecutive-year record as recipient of the E.H.Harriman Gold Medal Rail Safety Award.”

According to OSHA, the injury occurred in a NS yard in Jamestown, N.C., while the worker was removing spikes. Fearing loss of employment, the worker did not report the injury until a re-injury occurred. The employee was subsequently terminated.

* Metro North Commuter Railroad was ordered to promote a worker and pay him more than $130,000 in compensatory and punitive damages, plus legal fees, for improperly discriminating against him by classifying the injury as not work-related and denying him a promotion.

* A Wisconsin Central conductor was awarded more than $125,000 in compensatory and punitive damages, plus legal fees, following unlawful harassment and intimidation as the result of reporting an injury.

* Union Pacific was ordered to rehire a machinist it had fired following the reporting of a work-related injury.

* BNSF was ordered to rehire a conductor after being found guilty of improper retaliation after the conductor filed an injury report.

In all cases, OSHA ordered the railroads to provide training on whistle-blower rights to its managers, supervisors and employees, and to notify employees of their rights to be able to file complains without fear of retaliation under the Federal Rail Safety Act.

A rail employee may file a whistle-blower complaint directly with OSHA, or may contact a UTU designated legal counsel, general chairperson or state legislative director for assistance.

A listing of UTU designated legal counsel is available at http://www.utu.org/, or may be obtained from local or general committee officers or state legislative directors.

To view a more detailed OSHA fact sheet, click on the following link:

http://www.osha.gov/Publications/OSHA-factsheet-whistleblower-railroad.pdf