Articles Posted in Federal Employers Liability Act

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Railroad workers are constantly in hazardous places and situation when dealing with various types of high powered machinery on a daily basis. These dangers were found to be true earlier this summer when two young railroad workers, 20 and 25 years old respectively, were fatally struck by a train while they were inspecting their own freight train.

To combat the dangerous daily situations that railroad workers must face there have been established safety procedures in place. Although this month CSX CEO Hunter Harrison has taken away some of these safety procedures, leading to an increase in the number of risky situations that current railroad workers may now find themselves in. These changes in safety policies are now instituted company-wide in efforts to speed up productivity, but may leave railroad workers vulnerable to injury.

One of the safety procedure to be thrown out is the longstanding “Three Step Protections.” The CSX online railroad dictionary defines this as, “Additional protection that is provided prior to employees fouling equipment. This procedure will require the locomotive engineer to apply the train brakes, place the reverser in neutral position, and open generator field switch.” Early reactions to this abrupt change in policy explain that without the “Three Step Protections” in place the hazard of more serious or life-threatening injuries are now present.

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In the early weeks of October, passengers riding the Long Island Rail Road (L.I.R.R.) commuter train began to hear loud sounds, feel robust vibrations and see wild sparks while glancing outside their train’s window. Then an abrupt impact occurred. As a result, the passengers were confined in the blackened trains while waiting for rescue for an hour after two L.I.R.R. trains collided.

The collision resulted in injuries to at least thirty-three passengers, seriously injuring four. Of those injured, 26 were passengers and seven were employees. Additionally, close to 100 passengers were treated for minor injuries at the scene.

One of the trains involved was a single-car maintenance car and the other was a 12-car L.I.R.R. commuter train traveling eastward. The commuter train was occupied with about 600 people total at the time of the impact with the maintenance car.

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A New Jersey Transit commuter rail train plowed through Hoboken Station during rush hour on September 29, 2016, killing one person and injured hundreds, some critically. While the investigation into the trains’ derailment is ongoing, the National Transportation Safety Board (NTSB) has identified speed and human error as the most probable causes. According to the NTSB, data recorders and video cameras indicate that the train was traveling at twice the 10 mile per hour speed limit just before impact. Their findings also indicated that he engineer applied the hand brake on the train less than a second before impact sending the train airborne.

At approximately 8:45 A.M. the NJ Transit Train crashed into Hoboken Station crushing a structural support beam causing part of the station’s roof to collapse onto the train. The train ultimately came to rest inside part of the station’s waiting area and platform. Witness reported twisted metal, debris, broken glass, concrete and hundreds of frantic and injured commuters trying to escape the wreckage.

Hoboken Staten is the fifth busiest station in the NJ Transit System, servicing more than 15,000 commuters per day. Situated on the Hudson River across from New York City, Hoboken is the final stop multiple train lines and a transfer point for commuters boarding ferries or PATH trains into the city.

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When a train accident occurs the damage can be devastating and have a lasting impact on all those involved. Many times the victims are left with overwhelming medical expenses and other expenditures related to the accident as a result. After an accident the sufferers must be made whole again, but due to the regulated maximum amount in which Amtrak is allowed to compensate the collective victims of a single train accident it may leave victims in need of more.

In 1997, the Amtrak Reform and Accountability Act (“the Act”) was passed by legislation to control the amount that Amtrak could be found liable in a single train accident lawsuit. According to the Act, legislation capped the “aggregate allowable awards to all rail passengers, against all defendants, for all claims, including claims for punitive damages, arising from a single accident or incident, shall not exceed $200,000,000.” This tort reform is attached collectively to all victims of single railroad accidents, regardless of the total number of suffering parties seeking damages in the given lawsuit. When the Act was established, the aim of the provision was to ensure that railroad processes would be able to maintain operations during periods of substantial lawsuits against their company.

Unfortunately, the capped amount is not allowing for adequate compensation to all victims of railroad accidents. The federal limit cap does not account for inflation, dating from approximately two decades ago as it was enacted by Bill Clinton while in office. Also, because of the pre-established amount of $200 million the victims and their families are not afforded the opportunity to use the judicial system and its procedures to determine the appropriate amount for their total suffering. Families are finding out that the 1997 provision is not allowing for enough reparation to ensure the expenses produced by the train accident can be paid in full, such as medical expenses and lost wages, because the statute sets the firm limit at $200 million.

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In 2007, the Federal Railroad Safety Act (FRSA), 49 U.S.C. §20109, was amended so there was a shift of authority for railroad worker whistleblower protections from the Federal Railroad Administration (FRA) to the Occupational Safety and Health Administration (OSHA). Also, the amended code included new rights, remedies and procedures in regards to the whistleblower protections.

In 2008, the Rail Safety Improvement Act again amended FRSA to explicitly prohibit disciplinary actions or threats of disciplinary actions of employees for requesting medical treatment or for following medical treatment orders, first-aid treatment, or for following orders or treatment plan of a treating physician.

The employer is in violation of the FRSA if they take adverse actions against an employee for filing an accident report or unsafe condition. These adverse actions include the following types of practices: firing; laying off; blacklisting; demoting; denying overtime; denying promotion; disciplining; denying benefits; failing to hire or rehire; intimidation; making threats; reassignment affecting promotion; reducing pay; reducing hours; discipline an employee for requesting medical or first-aid treatment; discipline an employee for following orders or treatment plan of a treating physician or forcing an employee to work against medical advice.

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Last night, Amtrak Northeast Regional train 188 derailed in Philadelphia, killing 6 and injuring hundreds. The train, operating from Washington to New York, overturned and crashed at approximately 9:45 p.m. It was carrying 238 passengers and a crew of 5 at the time of the accident.

Emergency crews worked thru the night to rescue passengers from the wreck. Firefighters needed hydraulic tools to cut the twisted steel and free trapped passengers and crew members. 6 cars in the train derailed, one of which struck a steel utility pole.

The accident occurred near Frankford Ave in northeast Philadelphia while rounding a sharp curve. This area was also the scene of a 1943 train accident in which 79 people were killed. The 1943 accident was caused by equipment failure. Continue reading

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In a recent case (Bala v. PATH) the United States Court of Appeals for the 3rd Circuit ruled that railroad workers are subject to discipline for “excessive absenteeism” for non-work related injuries despite getting a note from their treating physician. This decision narrows the scope of the Federal Rail Safety Act Subsection c (2) as it pertains to non-work related absences.

Prior to this ruling, the Department of Labor prohibited railroads from disciplining employees for staying out of work, if they were following their treating physician’s treatment plan. The Court of Appeals has now limited this FRSA protection to work related injuries.

This ruling could have serious implications for Rail Safety, if sick workers continue to work to avoid being disciplined. A seriously ill worker creates a potential safety hazard for himself, fellow employees and the public by coming to work against the advice of his doctor. Safety, not the cause of the impairment should be the focus of the FRSA.

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