“I’m really sorry to hear about your injury. Let’s do what we can to get things taken care of. I can get those bills taken care of and hopefully get my boss to approve cash advances while you are out. I just need to get your version of what happened recorded so I can make the case for why we need to help you out.” 

Contractors are a necessary evil on almost any railroad.  From Sperry inspections to snow plowing, tree trimming to crew transport, they’re everywhere. But with so many people doing their jobs in close quarters, especially non-railroad savvy workers, the odds of an injury go up as the contractors move in.

That was the case one rainy afternoon when my client, a longtime deputy chief, was walking in the lobby of the corporate headquarters. The facility is known for its marble floors, which while ornate, also become dangerously slick when wet. The railroad has a contractor in charge of rolling out rubber mats near the entrances and in common areas during inclement weather so visitors to the headquarters can dry their feet, maintain traction and avoid dripping their umbrellas and raincoats all over the floor.

On this particular day, the contractor didn’t do its job. The chief lost his footing and fell hard on his back, leaving him with injuries he’ll feel for the rest of his life. A surveillance camera caught the whole incident on tape. (yes, tape, the case was several years ago)

By the 1920s, the protections afforded by the Federal Employers’ Liability Act (FELA) were already well-established, but railroad work remained incredibly dangerous. Workers doing jobs in faraway locales couldn’t drive home for the night and they didn’t have money for hotels. So the railroad put them in “bunk cars” – unused rail cars sitting on track, usually in a yard.

The conditions were, no surprise, often horrendous. The bunk cars had no air conditioning and it was not uncommon for them to be rodent-infested and uncomfortable. One night, a worker couldn’t stand it, and decided it would be better to sleep on the hard ground outside. When he dozed off, a passing train in the yard kicked up sparks and set him on fire.

If you’re talking to me, they are probably already watching you.  No, I am not a conspiracy theorist.

Would a major railroad bother surveilling an ordinary worker like you over a mundane injury claim? You bet.  They start keeping a close eye on you the moment they think you’ve been out longer than they think a typical work injury requires, sometimes within just days. The odds of surveillance go up the longer you are out of work and the more severe your injury.

Surveillance is less expensive than you’d expect and it makes the claims department look like they’re doing their job. Plus, technologies have made private investigation so much easier – in fact, you may be doing a lot of the work for them yourself. Here are a few ways the railroad collects information on you and some steps you can take to counter it.

Former railroad clients should look at that bar chart and say “Marc was right.”  Because I came across the graphic above recently and thought to myself, “Finally, I am validated.”

The bar chart represents “The Forgetting Curve” developed through the groundbreaking research of a 19th Century psychologist named Hermann Ebbinghaus. It shows the dramatic rate at which our memories fade after being introduced to new information that isn’t frequently used afterward. Within an hour, you won’t remember half of what you were told. Within a day, two-thirds will have faded. After a week? Forget about it, literally.

It seemed like a straightforward claim. An on-the-job slip and fall between railroad ties that were missing 16 inches of ballast resulted in a low back injury. Five weeks of physical therapy and a prescription for anti-inflammatories and pain medication, and the employee was ready to try to work again.

“I slipped on ice on an unsalted walkway on my way into work. (The parking lot had been cleared, as had the sidewalks, but the walkway in the parking lot itself was not treated).  

How do I calculate the value of my case? How much is my back injury worth? How much can I get for my knee injury?

They're all valid questions I get from railroad workers who get hurt on the job. Unfortunately there isn't one answer. Every injury, every worker, every situation is different. From the severity of your injury to your degree of fault, there are a thousand of variables that will impact the value of your case.

Whether an injured worker suing the railroad for negligence or a whistleblower suing the company for retaliation after reporting a safety hazard, my clients always ask, “Should I settle?” There is no hard and fast formula when facing a legal battle. There’s a balance of risk and reward involved in every case. The key to any battle, of course, is knowing when to accept the other side's surrender.

In this post I’ll answer some of the commonly asked questions about settling versus holding out for a jury verdict, to help you understand the best course of action for you.