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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).

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.

A decision by the U.S. Supreme Court found that the portion of a damages award attributable to lost wages for a workplace injury is considered to be taxable compensation under the Railroad Retirement Tax Act (RRTA). The decision in BNSF Railway Co. v. Loos (No. 17-1042) was released March 4.
Michael Loos pursued a claim against his then-employer, BNSF, for a workplace injury under the Federal Employers’ Liability Act (FELA), a law allowing railroad workers to file suit against their employers for on-the-job injuries. Loos was awarded damages of $126,212, of which $30,000 was attributable to lost wages from BNSF. BNSF indicated that it would withhold railroad retirement taxes from the lost wages portion of the award. Loos disagreed with this theory of withholding, arguing that, consistent with the RRTA’s definition of compensation, the payment must be “for services rendered” in order to be taxable and instead of compensation for services rendered the payment at issue compensated for an injury.
The issue worked its way from the lower courts to the Supreme Court. Oral arguments took place on November 6, 2018, and the court reached its decision on a 7-2 vote. In reversing the decision of the Circuit Court of Appeals for the Eighth Circuit, the Supreme Court held that the RRTA’s definition of compensation includes not simply pay for active service, but also “pay for periods of absence from active service provided there is an employer-employee relationship.” Whether the employer chooses to make the payment through a voluntary settlement or is involuntarily made to do so through an award of damages is immaterial so long as the payment for lost wages is provided based on the recipient’s status as a service-rendering employee.
The Internal Revenue Service administers the RRTA and, therefore, is the official source for Railroad Retirement tax information.
However, for purposes only of illustrating the court’s decision, the following example is provided.
In 2019, railroad employers and employees are subject to a Railroad Retirement tier I payroll tax of 7.65 percent (6.20 percent on earnings up to $132,900 for retirement, and 1.45 percent on all earnings for Medicare hospital insurance) and a tier II tax of 13.1 percent and 4.9 percent, respectively, on earnings up to $98,700. (An additional 0.9 percent in hospital insurance taxes, 2.35 percent in total, applies to an individual’s income exceeding $200,000, or $250,000 for a married couple filing a joint tax return).
If a railroad employee with no other earnings in 2019 is awarded $550,000 due to an on-the-job injury, of which $200,000 is attributable to lost wages (both past and future), the employer and employee would be required to pay $11,139.80 in tier I taxes ($8,239.80 retirement and $2,900 Medicare) and $12,929.70 and $4,836.30, respectively, in tier II taxes. (The additional Medicare tax would not apply as the award for lost wages did not exceed $200,000).

Larry Mann, rail safety coordinator to SMART TD’s Designated Legal Counsel.
“What Every Railroader Should Know,” written by Lawrence Mann, rail safety coordinator to SMART Transportation Division’s Designated Legal Counsel (DLC), is an extensive and comprehensive survey of federal railroad safety law as it pertains to rail workers and is essential reading for TD members concerned about how the law protects them.
Mann, who has served as rail safety coordinator for the DLC since the position was created in 2008, has been recognized by peers as the “nation’s foremost authority on railroad safety legislation and regulation.”
He has given SMART Transportation Division permission to distribute his 700-plus page book via PDF on the TD website.

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.

scales_gavelIn cases brought by the law firm of Schlichter, Bogard & Denton, LLP of St. Louis on behalf of injured railroad workers, two courts have ruled favorably to workers that FELA judgments are not subject to tax withholding under the Railroad Retirement Tax Act (RRTA).

The Missouri Supreme Court in Mickey v. BNSF Railway Co., No. SC93591 (July 8, 2014), available here, stopped a trend of state supreme court rulings that had held FELA judgments for injured railroad workers received less than the full amount the jury awarded them.

In a detailed opinion, the Missouri Supreme Court explained that the contrary decisions of the Nebraska and Iowa courts were based on an incomplete analysis of the law, and that under a proper analysis of the law FELA judgments are not subject to tax withholding, but must be paid in full.

This decision comes one day after the United States District Court for the Eastern District of Missouri also ruled that FELA judgments are not subject to RRTA taxes (Cowden v. BNSF Railway Co., No. 08-1534, Doc. 289 (E.D.Mo. July 7, 2014)).

The decisions in Mickey, which involved a BNSF railroad employee from St. Louis, Mo., and Cowden, which involved a BNSF railroad employee from Springfield, Mo., (both of which were handled by Schlichter Bogard & Denton) should end the railroads’ recent attempts to short-change employees of the personal injury damages juries have awarded them with this now twice-repudiated, tax argument.

The U.S. Justice Department is weighing in on an appeal by BNSF railroad over a $145,000 judgment to a former employee hurt on the job, saying a judge’s order to pay the full amount without deducting federal railroad retirement taxes could be “harmful to the United States because … it may interfere with federal tax collection.”

The case stems from a lawsuit filed in 2004 by Eddie Heckman, who was injured on the job a year earlier.

Read the complete Associated Press article at The Omaha World Herald.

It is no secret that railroads have tried with all their king’s horsemen and all their king’s men (and women) to send to the dust bin of history the Federal Employers’ Liability Act (FELA), considered the best friend of rail workers in forcing carriers to improve workplace safety.

That 1908 law allows railroaders to recover civil compensatory and punitive damages when railroads fail to maintain a safe workplace, resulting in injury, dismemberment or death.

The latest assault on FELA was a backdoor escape attempt by the Southeastern Pennsylvania Transportation Authority (SEPTA), which sought to declare itself an instrumentality of the State of Pennsylvania, and thus immune, under the U.S. Constitution’s 11th Amendment’s sovereign immunity clause, from such lawsuits.

The Pennsylvania Supreme Court termed the argument bogus, slamming that back door on SEPTA before it could wiggle out. Citing a history of U.S. Supreme Court decisions, Pennsylvania’s highest court ruled that SEPTA, as every other railroad operating in interstate commerce, is and remains subject to FELA.

SEPTA had sought to force its injured workers to file for workers’ compensation under the state’s federal/state workers’ compensation law, rather than bring a lawsuit under provisions of FELA.

Ruled the Pennsylvania Supreme Court:

‘We discern no threat to the dignity of the Commonwealth of Pennsylvania whenever a private individual commences a FELA suit in the courts of this Commonwealth, nor do we find the treasury of the Commonwealth to be threatened by a FELA suit in our courts. Accordingly, we conclude SEPTA is not an arm of the Commonwealth of Pennsylvania, and thus not entitled to claim immunity under the Eleventh Amendment.”

In June 2011, the U.S. Supreme Court declined a railroad attempt to weaken FELA by tightening the standards of proof injured rail workers must demonstrate to win an award under FELA. Attempts by railroads to have Congress scuttle FELA have not progressed beyond a committee hearing stage.

The UTU, Sheet Metal Workers’ International Association and other rail labor organizations joined in bringing the SEPTA case to the Pennsylvania Supreme Court for final determination.

SEPTA commuter rail service was transferred from Conrail to SEPTA, which also provides commuter bus and transit services, in 1983.

To read the court’s decision, click here.

WASHINGTON — In a 5-4 decision, the Supreme Court June 23 declined to tighten the standard of proof injured rail workers must demonstrate to win an award under the Federal Employers’ Liability Act (FELA).

The ruling is a significant victory for injured rail workers.

The FELA — a railroader’s most cherished workplace safety assurance — was passed by Congress more than a century ago to make railroads liable if an employee injury or death results “in whole or in part” from the negligence of any of its officers, agents or employees, or from any defect or insufficiency in equipment or roadbed.

At the time of the FELA’s passage in 1908, more than 4,000 railroaders were killed annually, and some 63,000 more suffered serious injuries each year.

The Supreme Court previously held that the FELA was “designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation.”

The June 23 Supreme Court decision turned on a crossover vote by conservative Justice Clarence Thomas, who joined liberals Ruth Bader Ginsburg, Sandra Sotomayor, Elena Kagan and Stephen Bryer to rule against CSX and in favor of an injured CSX locomotive engineer.

The engineer had won a monetary award from a federal district court after being injured on the job in 2004 while operating a locomotive that the engineer contended was not suited for switching operations.

CSX twice unsuccessfully appealed the trial court’s decision – the first before the 7th Circuit Court of Appeals and the second appeal before the Supreme Court. CSX contended in both unsuccessful appeals that injured rail workers should meet a more demanding standard of proof as is required in all non-FELA personal injury cases, not, as the trial court instructed the jury, that CSX was responsible for negligence if its negligence “played a part – no matter how small – in bringing about the injury.”

CSX sought a ruling that the employer’s action must be the “primary cause” of the injury. In fact, the “in whole or in part” language comes from the FELA itself, and that legislative language clearly impressed the Supreme Court’s majority in this case.

Writing for the majority, Justice Ginsburg said: “Juries in such cases are properly instructed that a defendant railroad ‘caused or contributed to’ a railroad worker’s injury ‘if [the railroad’s] negligence played a part – no matter how small – in bringing about the injury.’ That, indeed, is the test Congress prescribed for proximate causation in FELA cases.”

Earlier Supreme Court cases upheld the right of unions to advise injured workers to obtain expert legal advice, and the right of unions to designate legal counsel possessing specialized knowledge in railroad operations and the FELA.

A listing of UTU Designated Legal Counsel is provided at www.utu.org by moving the cursor to “About UTU” in the red horizontal bar at the top of the home page and then clicking on “Designated Legal Counsel.” A listing of Designated Legal Counsel also may be obtained from local union officers or your general chairpersons.

If you are injured on the job, the FELA and your UTU Designated Legal Counsel are the best friends you and your family have. These successful trial lawyers are specialists in handling FELA claims, and are fully experienced in dealing with railroad claim agents and railroad lawyers.

And remember: Contributory negligence is not a bar to recovering under the FELA; and the FELA prohibits railroads from retaliating against employees who provide Designated Legal Counsel with factual information on injuries to fellow employees, or who testify in support of injured workers.

Each FELA lawsuit sends to the carriers a message about improving workplace safety that they cannot ignore

To read the June 23 Supreme Court decision, CSX Transportation, Inc. v. Robert McBride, click on the following link:

www.supremecourt.gov/opinions/10pdf/10-235.pdf

Throughout America Monday, UTU members joined with brothers and sisters across craft and industrial lines in We Are One rallies reinforcing labor solidarity and raising public awareness of mean-spirited attacks on collective bargaining rights by right-wing extremists.

The word went forth that labor will not stand passive as anti-union zealots elected to state legislatures seek to dismantle public-employee unions through laws revoking collective bargaining rights, curtailing dues check-off and forcing costly annual representation elections.

There is an end-game: Reminding elected officials that organized labor remains a potent political force able to mobilize millions of voters, and to set the stage for recall elections of anti-union lawmakers and voter referendums to nullify the legislative assault on collective bargaining rights.

“The immense activity this week is a direct result of the backlash provoked by overreaching governors and legislators,” said AFL-CIO President Rich Trumka.

Labor leaders nationwide recognize that the assault on public-employee collective bargaining rights is part of a right-wing effort to extend the anti-union assault to private sector unions. Anti-union extremists already have urged an assault on Railroad Retirement Tier II and the Federal Employers Liability Act (FELA).

The UTU Collective Bargaining Defense Fund, established to help support public awareness of anti-union actions by right-wing extremists is just one example of union solidarity, being duplicated by dozens of other labor organizations in the public and private sectors.

Thousands of dollars already have been contributed to the UTU Collective Bargaining Defense Fund for this purpose, and UTU members and retirees are urged to add to the contributions already received from locals, general committees and state legislative boards.

In Ohio, where Gov. John Kasich signed into law a bill curtailing public-employee collective bargaining rights, the effort to nullify that law in a November voter referendum already has begun.

Over the next 90 days, union members and their supporters in Ohio will collect the necessary 231,000 signatures to put the Ohio legislation to a voter referendum in November.

Efforts also have begun in Wisconsin to recall legislators who voted in favor of curtailing public-employee collective bargaining rights in that state.

“If you believe in something strong enough, you fight for it,” said UTU International President Mike Futhey in urging donations to the UTU Collective Bargaining Defense Fund. “Together, in solidarity, we can and will win this fight and emerge stronger than ever.”

Checks to the UTU Collective Bargaining Defense Fund should be sent to:

UTU Collective Bargaining Defense Fund
United Transportation Union
Suite 340
24950 Country Club Blvd.
North Olmsted, OH 44070-5333