Next to “How much is my case worth?” questions about the timing and duration of lawsuits are the ones I hear most often from railroad workers.
Timing is critical to lawsuits. If they’re going to protect their rights, workers need to know the window in which they have to report an injury, file an FELA suit or file a whistleblower claim.
This blog will answer those questions along with tougher, more, it-depends-on-your-situation queries like, “When will I get paid?” and “How long will my trial last?”
Read on for 10 answers to the most often asked timing-related questions about FELA injury and whistleblower claims.
1. How long do I have to report an injury?
There is no legal requirement. I know your company rules say to report it immediately or possibly by the end of your shift. But I am here to tell you that with the whistleblower amendments to the Federal Railroad Safety Act, you cannot (validly) be brought up on any kind of discipline charges for late report of injury. That is, so long as the delay was in good faith. In other words, report the injury when you know you have one. If that is two days later because the pain and soreness is not going away, then so be it.
2. How long will the railroad pay for my accident related medical expenses?
Again, there is no legal requirement here. However, the railroad will almost always pay for your accident related medical expenses as long as you have a claim or lawsuit pending. They do this not out of some altruistic desire to help you, but because they want to keep their finger on the pulse of the severity of your injuries. Some collective-bargaining agreements also require that these expenses be paid. Once your case is concluded, whether by settlement or verdict, the railroad will stop paying for your medical treatment. Click here to learn more about why you aren't covered by worker's comp.
3. How long should I wait to make a settlement demand?
As I have written about on this blog before, when you make a settlement demand it’s not based on some arbitrary line in the sand, but on what makes sense for your injury. In other words, have you finished treatment? Have you returned to work? Are you going to miss any more time from work? If you’ve finished treatment and are ready to return to work then you know what to demand in terms of lost wages, treatment expenses, etc. Click here to calculate your lost wages.
4. How long does the railroad have to respond to a demand?
The sky is the limit on this one. I usually give the company at least two weeks to respond. However, I also usually put some sort of stick out there so they know what happens if they don't give a response at all. It also depends on the severity of the injury. A more severe injury will require getting approval from people further up the food chain. On the other hand, a small injury may well be within the settlement authority of the claim agent. If you’ve put in a demand and haven’t heard anything in two weeks then you should be ready to pull the trigger on the next step, either getting an attorney or making sure your attorney is filing suit.
5. How long do I have to file a FELA lawsuit?
The absolute outside limit, called the statue limitations, is three years from the date of injury. However, you should never wait this long. You never know what problems you will encounter in getting the case filed or, assuming you go the attorney route, finding an attorney who is willing to take your case on short notice. Here's an example of a successful FELA lawsuit.
6. How long should I wait to file a Whistleblower claim?
180 days is all you have to file a claim with the department of labor. As of 181 days, you are too late and forever prevented from making a claim. Not sure if you have a whistleblower claim? Click here.
7. How long will my case take from filing to verdict?The answer to this question depends largely on whether you are in the federal court or in the state court. Further, it depends on what state court you are in. I can say with 90% certainty that if you file your lawsuit in federal court, it will be one year or less from the time you file your case until you have a verdict or settlement. Of course, the nature of your injuries and delays that pop up during the case, like the responsibility of some other non-railroad company, can also affect the resolution time.
8. How long will it take to get paid if I agree to settle?
Typically, the amount of time it will take to get paid is calculated from when you return the signed settlement papers. There is always an initial period where you, or your lawyer on your behalf, will negotiate the terms of the settlement papers themselves. For example, will there be a confidentiality agreement? Is there an agreement on how much money you owe back to other people? I include in my settlement agreements a specific time within which the company will issue a check upon receipt of the signed papers. Then if it does not occur, I can go to the court to force the railroad’s hand. Click here to read about how long it can take to get paid after a verdict.
9. How long does a trial last?
This one depends largely upon the complexity of the case. Is it a simple accident which requires one or two witnesses to explain? Is it a simple injury like a broken bone? Remember, a longer trial does not necessarily mean more money. My best verdicts have come following two day trials. However, sometimes a catastrophic injury requires life care planners, an economist and three or more doctors to explain everything to the jury. You should always plan on having to attend court for at least one week for your trial. And, no, the railroad does not pay you while you're attending the trial, unless you were using personal days.
10. How long does the railroad have to appeal my case?
As a general rule, the railroad has 30 days to appeal to the next higher court following a jury verdict. However, if the company first files a motion for new trial, that stops the clock on the right to file for an appeal. In other words, the time doesn’t start ticking on the appeal until the court resolves any post-trial motions. Yet another reason why settlements can make sense, which we’ll discuss in the next post.