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).

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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.

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Sara Youngdahl, managing partner of The Youngdahl Law Firm, P.C. in Houston, Texas, has been appointed by SMART-TD President Jeremy Ferguson to serve as Coordinator of SMART’s Designated Legal Counsel. Ms. Youngdahl is the only woman in the United States designated as legal counsel for a rail union. Ms. Youngdahl also serves on the Academy of Rail Labor Attorneys (ARLA) Board of Managers.

Ms. Youngdahl has been representing railroad workers in Federal Employers’ Liability Act (FELA) and Federal Rail Safety Act (FRSA)(OSHA Whistleblower) cases for nearly 25 years. Ms. Youngdahl has handled hundreds of cases on behalf of railroad workers and their families who were injured or tragically suffered death on the job. She has also fought for railroaders who have been retaliated against for reporting railroad safety violations, personal injuries, and those who have been denied medical treatment.    

Ms. Youngdahl comes from a family of union organizers and lawyers representing working people all over the country. Dedication to values such as fair wages, the right to organize, equal access to justice, and the notion that railroads must honor their legal and ethical obligations has been the cornerstone of Ms. Youngdahl’s practice.

Ms. Youngdahl has been designated counsel for SMART for nearly 20 years, and looks forward to serving as SMART DLC coordinator.

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The SMART Transportation Division (SMART-TD), Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Academy of Rail Labor Attorneys (ARLA) have filed a joint motion and brief urging the United States Supreme Court to prevent railroads from seeking property damages from their employees who are involved in railroad accidents.
The joint amicus curiae brief was filed in the case of Melvin Ammons and Darrin Riley v. Wisconsin Central, Ltd. Following a 2014 derailment, Conductor Ammons and engineer Riley filed suit under the Federal Employers’ Liability Act (FELA), claiming the carrier had failed to provide a safe place to work resulting in injuries to them. In its counter claim, Wisconsin Central blamed Ammons and Riley for causing the accident. The carrier further argued that the crew acted in a negligent manner and sought damages from the employees in excess of $1 million for damage to railroad property.
In their brief, SMART-TD, BLET and ARLA argue that to allow a railroad to recover property damages from employees following an accident is an unlawful device that permits the railroad to evade its own legal liability, and will create a potential catastrophe in the railroad industry because the safety-reinforcing purpose of FELA will be destroyed.
“No tactic by the railroads has more potential for destroying employees’ rights — the exclusive remedial recourse available to railroad employees — under the Federal Employers’ Liability Act (‘FELA’ or the ‘Act’) than allowing a railroad to seek property damages from an employee arising out of an accident,” the group wrote in its amicus brief.
Congress created the FELA in 1908 with the “twin objectives of providing effective relief to railroad workers injured or killed because of their employer’s negligence and giving railroads an economic incentive to improve the safety of this nation’s railroads.” This remedial purpose was underscored by amendments to the Act in 1908 and numerous times thereafter.
The FELA prohibits a railroad from utilizing “any device whatsoever” to exempt itself from liability. SMART-TD, BLET and ARLA contend that seeking property damage from employees in the event of accidents is such a device, and one that would basically exempt railroads from liability.
It was explained to the Supreme Court that “[i]t was not the intention of Congress in enacting FELA, with the inclusion of ‘any device whatsoever,’ that by the device of a claim for property damages, a railroad may avoid financial liability for its negligence, collect damages from an employee or drive an employee to bankruptcy, and whether it be the collection of damages or employee bankruptcy, dissuade other employees from filing FELA claims.”
SMART-TD, BLET and ARLA also argue that allowing employees to be sued for property damages would jeopardize safety in the railroad industry and discourage future safety improvements. In its brief, the group wrote: “Congress’ purpose in enacting FELA was to shift the cost of the ‘human overhead’ of railroading from the injured employees to their railroad employers. Allowing railroads to offset their FELA liability by shifting these losses back to the employees through property damage claims frustrates that Congressional design and jeopardizes the safety of the nation’s rail system.”
A copy of the amicus brief can be found here (PDF).

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The safety coordinator to the SMART Transportation Division Designated Legal Counsel has updated a pair of publications that offer comprehensive surveys of federal laws that cover TD members who work in the rail industry and who work as bus operators.
“What Every Railroader Should Know About the Federal Railroad Safety Laws and Regulations,” by Larry Mann, has been updated with changes that have occurred since the 2014 version’s release and contains detailed information about how federal railroad safety law pertains to railroad workers.
“What Every Bus Driver Should Know,” also by Mann, does the same for bus members and is essential reading for TD members concerned about how the law protects them.
Mann, who has served as DLC rail safety coordinator since the position was created in 2008, has extensive legal experience in the transportation industry and has given SMART Transportation Division permission to distribute both the updated rail book and the updated bus book via PDF on the TD website.

What Every Bus Driver Should Know (June 2019)	What Every Railroad Worker Should Know (June 2019)

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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).

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“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.

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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.

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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.

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WASHINGTON — The U.S. Department of Labor’s Occupational Safety and Health Administration has signed an accord with BNSF Railway Co. announcing BNSF’s voluntary revision of several personnel policies that OSHA alleged violated the whistleblower provisions of the Federal Railroad Safety Act and dissuaded workers from reporting on-the-job injuries.

FRSA’s Section 20109 protects railroad workers from retaliation for, among other acts, reporting suspected violations of federal laws and regulations related to railroad safety and security, hazardous safety or security conditions, and on-the-job injuries.

“This is a tremendous victory for UTU members and all railroad workers employed by BNSF,” said UTU International President Mike Futhey. “The Obama administration’s efforts to stop the harassment and intimidation of employees concerned about safety in the workplace is a win for all workers. It is just one of the reasons why this union supported President Obama’s reelection.”

The major terms of the accord include:

•Changing BNSF’s disciplinary policy so that injuries no longer play a role in determining the length of an employee’s probation following a record suspension for a serious rule violation. As of Aug. 31, 2012, BNSF has reduced the probations of 36 employees who were serving longer probations because they had been injured on-the-job.

•Eliminating a policy that assigned points to employees who sustained on-the-job injuries.

•Revising a program that required increased safety counseling and prescribed operations testing so that work-related injuries will no longer be the basis for enrolling employees in the program. As part of the negotiations leading up to the accord, BNSF removed from the program approximately 400 workers.

•Instituting a higher level review by BNSF’s upper management and legal department for cases in which an employee who reports an on-duty personal injury is also assessed discipline related to the incident giving rise to the injury.

•Implementing a training program for BNSF’s managers and labor relations and human resources professionals to educate them about their responsibilities under the FRSA. The training will be incorporated into BNSF’s annual supervisor certification program.

•Making settlement offers in 36 cases to employees who filed whistleblower complaints with OSHA alleging they were harmed by one or more of the company’s previous policies.

“Protecting America’s railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA’s mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

“It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries.”

“Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health,” said Michaels. “If employees do not feel free to report injuries or illnesses, the employer’s entire workforce is put at risk because employers do not learn of and correct dangerous conditions that have resulted in injuries.”

To review the accord between OSHA and BNSF, click here.

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