Employee Injuries, Amtrak and Host Railroads

Gilbert B Norman wrote: ↑Sun Dec 19, 2021 9:28 am

photobug56 wrote: ↑Sat Dec 18, 2021 9:39 pm I can't imagine getting hurt on the job, going to an ER, telling them it's a workplace injury but that I don't have WC, and that my employer based health insurance doesn't cover workplace injuries. That's insane.

Straight on, Mr. Photobug.

I've learned of FELA cases where the attorneys will "enhance" an employee's injury simply to make the case more "graphic" to a jury. I know of another that with proper physical therapy, the outcome of recovery from an injury would have been more favorable. Only problem, the injured employee did not have the funds to get this therapy.

Are their injustices under the various state Worker's Comp Acts? Of course. But they pale when compared with those suffered by those under FELA.

Guarantee you though, many a lawyer gets a payday. Just ask Mr. Google to ring you up a selection of those for whom FELA is their specialty.

And to you youngsters around here who seek to "hire on", including with commuter agencies, all I can say is "JUST DON'T GET HURT".

One would think that with commuter railroads with 'strong' unions there would be some form of coverage or alternative. Like with LIRR, MNCR, and also NYCTA. But isn't Amtrak mostly unionized? Why would its unions tolerate a lack of protection from workplace injuries?

justalurker66 wrote: ↑Mon Dec 20, 2021 12:09 am I am not seeing that exclusion in my plan documents. Perhaps since you know my coverage so well you can tell me the section and paragraph number where I should look?

Seriously, your statement is overly broad. Are you claiming NO health insurance plan covers any injury that might also be covered by WC/FELA? Absolutely none?

When I went through the process 15 years ago for a workplace injury my company had a high deductible group plan. I claimed through workman's comp which had no deductible or out of pocket expenses. The cost of the emergency room visit and post injury physical therapy were less than the deductible so it would have been 100% out of pocket if I would have used the group plan whether the claim was approved or not. I have a better job with better insurance now.

I was injured at work for a now nearly gone department store chain - poor lighting and sloppy storage in back rooms. Fortunately, 911 was called right away, and management, albeit a bit unhappily, promptly filled out the WC paperwork.

Many years earlier, in a very odd case, I was a volunteer for a major NorthEast city and got hurt. 100% covered by WC because, more or less, I was considered an unpaid employee with only one major benefit other than a small uniform allowance - WC. Years before the city had tried to fight such a case, but lost, so when I needed, it wasn't a big deal. Though us volunteers were not supposed to know that we had coverage.

Interesting to learn that nowadays private insurers can assume the medical costs of injured employees who are not covered by the various state WC Acts.

Also interesting that the insurer waives rights to subrogate against the railroad on which the employee was injured. While such provision raises the premium costs, it does hold down legal fees (also read premiums) in seeking remedies from the employing road.

Therefore, the FELA law practice is now limited to employees who feel aggrieved and want to be "paid for the injury".

"Wasn't that way back in my day".

There are times where an injury SHOULD be paid for through FELA or WC. But people buying private or group health insurance should have the assurance of coverage without worrying about fighting over who will pay. That assurance comes with a higher premium to cover the times where the private/group insurer can't subrogate. Too many issues (mental, carpal tunnel, cancer, heart problems, pulmonary problems) could be blamed on "work" but unless there is an explicit event it could be hard to define whether the issue was work related or life related. And without a specific event will FELA or WC pay a claim for an injury/illness?

In this case the Amtrak employee was definitely injured at work. Call that fella who works with FELA.

The response from the railroad Brotherhoods when a railroad tries to get Congress to put railroad workers under Workers Comp is that they like the present Federal Employees' Liability Act since it can pay the employee whatever a jury might award, or what the railroad might pay to avoid a jury award. Workers Comp only pays medical bills, it doesn't pay cash to the employee.

TAN: About not for profit, all volunteer operations:
In the State of Pennsylvania, Workers' Comp premiums are usually a percentage of the wages, sometimes with an additional service charge, and/or a minimum premium if the percentage of wages produces too low a charge.
Penn's Landing Trolley wondered why the State required them to pay a minimum premium for Workers' Comp insurance when they were all volunteer and were prohibited from paying anything to the members. The State's answer was that the officers of the "trolley car club" were still considered to be employees and covered for injuries during the performance of their duties. Also, if an outside worker or contractor was ever hired, they might claim to be an employee, and the insurance company would be required to defend or pay.

Gil, I do enjoy your informative posts about how it was on the Milwaukee Road.
As for insurance, if you have a good agent, you can usually get what you are willing to pay a high price for. There are sales people who push those no subrogation policies to railroads. Since the sales people exist, there must still be roads that haven't bought such policies.

JimBoylan wrote: ↑Tue Dec 21, 2021 1:32 pm TAN: About not for profit, all volunteer operations:
In the State of Pennsylvania, Workers' Comp premiums are usually a percentage of the wages, sometimes with an additional service charge, and/or a minimum premium if the percentage of wages produces too low a charge.
Penn's Landing Trolley wondered why the State required them to pay a minimum premium for Workers' Comp insurance when they were all volunteer and were prohibited from paying anything to the members. The State's answer was that the officers of the "trolley car club" were still considered to be employees and covered for injuries during the performance of their duties. Also, if an outside worker or contractor was ever hired, they might claim to be an employee, and the insurance company would be required to defend or pay.

In New York, official volunteers of New York City NYPD, namely Auxiliary Police Officers, are covered (albeit reluctantly by the city) by WC, and if they lose time off their regular work because of a line of duty injury, they make get compensated for that at the rate their normal job pays. Also, if they suffer a permanent injury, that may get them additional compensation. In the meantime, their medical bills are covered. I would note that some cases go to a judge and it is a good idea to have a proper WC trained attorney with you.

I just wanted to bring up in this thread of the idea of grandfathering. US Labor laws, including workers compensation, were passed by Congress after railroad workers earned theirs via their unions. Hence, railroad workers compensation existed long before other workers or unions. I have no idea which would be best for railroad employees today, what the union has won through over 100 years of contract negotiations or what the Federal funded program provides today. But what is important to this discussion is that the railroad union compensation is grandfathered into being the law of the land for them.

As is the underlying labor law. Railway Labor Act dates to 1926, while the larger Taft Hartley is from 1947.

Railroads and airline unions have a love-hate with RLA in that their ability to strike is limited and an emergency board can impose a contract on them, but labor doesn't want to give up the closed shop provisions that make union membership compulsory.

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Allow me to amplify upon Mr. Olesen's immediate.

The Taft-Hartley Act of 1947 was actually the "middle piece" of a trilogy that has provided the foundation of labor law through Today.

The first was the 1936 Wagner Act which set forth worker's rights to Unionize and set forth the procedures for representation elections.

The Taft Hartley Act main provision was the power to seek an injunction ordering striking employees to return to work. Coming to my mimd is the injunction obtained during 1959 to put steelworkers back to work after 116 days. The RLA also has provisions to force rail (and air transport) workers back, but those provisions are limited when compared with the TH.

The final piece of the trilogy is the Landrum Griffin Act which was enacted during 1956. The principal provision of such was to curb union abuses against their own members. From my first hand experience during my three years working in Labor Relations was the fear that General Chairmen had for its Failure to Represent provisions. This results in "fighting tooth and nail" for the "bad apples" lest they turn around and seek redress.

The RLA remains in force so long as its provisions do not conflict with the Trilogy. On railroad and airline properties, the Act's provisions otherwise govern.

Finally, how this topic moved into the discussion of, first, employee redress for injuries and now into Labor Relations escapes me. Bets, anyone, how long these posts remain standing.

Ahhh, its great to live in a country with free universal accident compensation for all.

But in this case , just because Amtrak / the railroad doesn't have to help the employee , isn't it in their interest to do so anyway? Say it cost them a million , but will probably save them $ 10 million in Layers fees and payout anyway .

Gilbert B Norman wrote: ↑Tue Dec 21, 2021 8:45 pmFinally, how this topic moved into the discussion of, first, employee redress for injuries and now into Labor Relations escapes me. Bets, anyone, how long these posts remain standing.

It's a tangent indeed, but railroads do have unique constraints compared to other businesses, so sometimes you have to dip into the rabbit holes on why they're different...

electricron wrote: ↑Tue Dec 21, 2021 4:40 pm I just wanted to bring up in this thread of the idea of grandfathering. US Labor laws, including workers compensation, were passed by Congress after railroad workers earned theirs via their unions. Hence, railroad workers compensation existed long before other workers or unions. I have no idea which would be best for railroad employees today, what the union has won through over 100 years of contract negotiations or what the Federal funded program provides today. But what is important to this discussion is that the railroad union compensation is grandfathered into being the law of the land for them.

State Workers Compensation laws are typically supported by employers since such laws substantially limit employer liability for on the job injuries. The reason is that WC laws generally deny the injured workers the right to sue their employers, and limit the employer's liability to medical costs and some relatively small amounts for permanent injuries. By way of example, an on the job injury compensation amount is usually many times less than the amount that would be awarded for a similar injury in a negligence case by an injured visitor to that employer, or in the typical automobile crash with a similar injury and so forth. WC is a mixed bag.

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