“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).
Thankfully, my only injury is a bruised bone in my elbow and bursitis in my shoulder. I have been off a week and expect to be off another. The claim agent did call me. I told him I suspected I would be back in a week or so and he told me to call him when I return and we can discuss my claim. What can I expect? I don't think I need an attorney as it is a relatively minor injury; but I don't want to shoot myself in the foot either.” – Dispatcher, name withheld
This week on the blog I’m answering a reader question. In this case a railroad worker injured his arm on the job, but the answer applies to most on the job injury claims.
If your injury is no worse than the bruise and bursitis, then I agree with you, your injury appears to be minor and you can probably file a claim yourself, without a lawyer.
My hesitation is that you don’t know just yet whether there will be any flare ups. Take a look at what I had to say on the issue of settling too quick here.
Here’s what to expect when you speak to the carrier claim agent and the steps you should take to defend your claim:
Expect a lowball offer.
Start your numbers higher than you expect to settle and leave yourself room to make at least three downward moves. For example, if you wanted to settle at $12,000, you should start at $22,500, to give yourself moves to $20,000 and $15,000 before going to your final number.
Expect an argument against the railroad’s liability.
You should also expect him to say that you were on the way to work, so they are doing you a favor since you weren’t technically on duty. That is potentially true, but you have the better argument, because you were on a company provided walkway coming from the company designated parking area. Here are the top five FELA injury liability defenses I hear from carriers.
Expect you won’t get your gross lost wages.
The agent will tell you that you are only entitled to your net (i.e. after-tax) wage loss, and that is true. But you can figure out exactly the wages you’re owed yourself by using a wage loss calculator I created. Here is a blog post on the subject, but you can jump directly to the calculator here. Make sure to use your tax rate if it is lower than 25%.
Expect some future work repercussions from your injury.
My recommendation is that you actually work a few weeks before settling your claim to make sure you don’t sell yourself short. Your age and outside activities also play a role in determining if there will be a recurring problem. Literally today I had to tell a track inspector that he couldn’t seek any award from the railroad for his back surgery and the lost time from it because he had settled for his lost wages immediately upon returning to work. It took nine months for his surgery to take place, but it knocked him out of work for 8 months after that. If he hadn’t settled after his return to work he would have had the leverage he needed to claim that more than half year long period of lost work.
Expect you’ll be hit with decisions you aren’t prepared for.
Before you file your claim get informed and armed for the process. Find people who have similar injuries. Gather evidence and witnesses to support your injury claim. Talk to a railroad attorney and get some free advice. FELA attorneys (those are railroad lawyers) represent workers and passengers in whistleblower and injury cases. Only FELA attorneys have the skills to represent you whether you were hurt on the job, were penalized on the job for something protected, or are a passenger who got hurt on or around a train.
The fact is, lawyers have become as specialized as a coffee order. A railroad lawyer can handle a car accident case, but not vice versa. FELA lawyers know the FELA law that uniquely protects you. There are so many details, special traps, special rules that can be used to your benefit. The right lawyer will even tell you when you don’t need their help.