Drawing on my 30 years of railroading, 28 years of holding union office, and my experience of working for an FELA firm, my response -- railroader to railroader -- to a question about when to deal directly with a claim agent would be simply -- NEVER!
But after some thought and consideration, I believe I can change my answer under certain conditions. If you have been reading Straight Track for any length of time, you probably have a layman’s understanding of the federal law that protects injured railroaders, the FELA - Federal Employers’ Liability Act. If you have concluded anything from Straight Track articles, you should know the following three things to be absolutely true.
IF YOU ARE INJURED ON THE RAILROAD, THE BURDEN OF PROOF IS ON YOU
The railroad must only defend itself in an FELA case. They are held harmless under the law. You must prove (document) the railroad’s negligence otherwise they owe you nothing for your work injury under the law. (No matter how seriously you are injured on the job, in order receive fair compensation you must be able to prove that the railroad was negligent.)
IF YOU ARE INJURED ON THE RAILROAD, YOU MUST PROVE (DOCUMENT) THAT YOUR MEDICAL CONDITION IS A RESULT OF THE ACCIDENT
Your medical records and doctor’s notes should indicate that your medical condition is a direct result of the accident.
THE RAILROADS HAVE BEEN DEFENDING THEMSELVES UNDER THIS LAW SINCE 1908, AND THEY ARE EXPERTS AT IT
Claim agents work in conjunction with the railroad’s legal, medical, and operating departments. Through the claim agent, the railroads coordinate their efforts to weaken your claim against the railroad. So, the question remains: Can it ever be advantageous to deal directly with the claim agent? Well instead of answering the question, let me tell you under what conditions I would give the railroad’s claim agent a shot:
The claim agent would have to agree in writing to give me advances against my claim for a definite amount of money and determined length of time.
The claim agent would have to agree in writing to give me any and all statements, pictures, work reports, measurements, recordings and surveillance tapes that they have access to now and in the future.
- The claim agent would have to agree in writing to let me treat with a doctor of my choice until I have reached maximum medical improvement.
In absence of any of these conditions, I would have to stick to my original answer to the question of when is it best to deal directly with a claim agent: NEVER!
Remember, you always have the right to deal directly with the claim agent, but before you go single-handedly against the coordinated efforts of the railroad's legal, operating, and medical departments, call Hoey & Farina and discuss the facts of your case with one of our railraod accident attorneys. Remember you don’t always need an attorney, but you do need legal advice.