Some railroaders who are injured at work will return to their former occupation after medical treatment and a full recovery.
Unfortunately, a number of railroaders will never recover enough to go back to their former occupations.
In interpreting the FELA - Federal Employers’ Liability Act, courts have included the requirement that a jury be instructed that “an injured party is under an obligation to return to gainful employment that he is reasonable capable of performing as soon as reasonably possible. Failure to resume gainful employment does not preclude an award for future lost wages, but you are to reduce any future lost wages by the amount that the injured party could have earned by resuming such employment. What is reasonable under the circumstances is for you to decide.”
What does this mean? If you are a 40 year old railroader making $50,000 per year and intending to work to age 65 and can no longer return to work after your on-the-job injury, your gross lost wages would be $1,250,000 (25 years x $50,000 per year). However, based upon the above legal requirement, if you can reasonably resume some type of gainful employment, given physical restrictions, then the jury will reduce that amount by what you could earn. Determining the amount of money an injured railroader can earn in a different job after the accident gets a lot of attention because it can seriously reduce your award for lost wages.
Obviously, the injured railroad worker, once it is realized he cannot go back to his old job, will want to do something for the rest of his life after recovering as much as he can from the injury. Frequently, a railroader has done nothing but work for the railroad since getting out of school. Therefore, there are two options that this railroader faces. The first is getting some type of employment with his same railroad in another craft or in management or, second, getting retraining for employment outside the railroad. Both of these situations are subject to tragic manipulation by the railroad to greatly and incorrectly inflate a railroader’s earning potential or to show that railroad jobs are available which are not, in fact, legitimate.
After a railroader has recovered from his work injury and it is determined that he cannot go back to work, this railroader will be faced with something he has probably never encountered before – a smiling, friendly railroad which appears to be going out of its way to “help” the railroader by offers of retraining and possible job opportunities. Is this too good to be true? You bet! This is the same employer that has been dealing with you for the last 20 years or so in the usual not-too-friendly manner. Many railroaders feel, justly, that the railroad has never gone out of their way to see their point or extend them any favors or even meet them half way. Why the change? Because the railroad is not doing it to help the injured railroader, but to help itself. If a railroad can show that an injured railroad worker’s post-accident earning potential will be the same as before the accident, the railroad will not have to pay any part of the $1,250,000.
The more that the railroad can fool a jury into thinking that you will make after the accident, the less you get.
Therefore, the railroad has something far different than a humanitarian motive to proceed with vocational rehabilitation.
A look at several examples of this manipulation can show what your new “friend” is up to. Let’s say that you are a brakeman and cannot return to work after your recovery from your accident. The railroad comes to you and says “How about retraining? Would you like to be a locomotive engineer?” This sounds good at first blush and, in fact, that is precisely why the railroad is doing it – it is a sound bite meant to be played for a jury. If you are physically capable of going through engineer school, you start over on a new roster at the bottom of the list. You may not be able to hold a job as an engineer and, since you cannot work as a brakeman, this “wonderful job” turns out to be nothing at all. However, in the meantime, the jury has heard testimony about your retraining and full earning potential as a locomotive engineer and has chosen not to give you any future lost wages. If you turn the offer down, the railroad will argue you are not interested in working at all.
Another favorite “no job” job offer railroads like to use is the yardmaster position.
Often, a number of railroaders have gone through training and are qualified to be yardmasters. Due to there being no openings, they work as relief yardmasters while waiting to have a slot to fill as a yardmaster full time. Thus, a “yardmaster job offer” is nothing more than another deception.
Other favorite railroad “job offers” include various instructors, crew callers, dispatchers, and certain officer jobs. Again, these look good on paper, and it is not done to help you, but to help mislead a jury into thinking it is a realistic job offer. Ironically, the railroads doing this the most are the ones that have announced thousands of job reductions after mergers and consolidations. Additionally, if the job is not union, how long do you think this job will be there after your case is over?
In another twist, the railroad will often offer the opportunity to apply for a position not in the same geographical location. They will then argue to the jury that it is reasonable for you to leave your family and home where you live to move across the country to save the railroad money. Since you have refused, it is obviously evidence of your laziness they argue.
Non-railroad employment is often a preferable way to go, as the chances of legitimate long term employment are real and not controlled by the railroad. However, this must be undertaken carefully, as it often involves a multi-year retraining period and then a job search. Railroaders who have been involved in this process often report that the prospective employers are less than enthusiastic about hiring a 40 year old person who has done nothing for the last 20 years except work on the railroad and who has severe enough injuries that require special attention.
It is imperative that experienced the FELA lawyers / designated legal counsel of Hoey & Farina be on your side to work for you and coordinate whatever legitimate assistance can be obtained from the railroad. There are potential benefits to be had in utilizing the railroad’s resources, but there are very real dangers. It is beneficial to utilize your own private vocational counselor. This is a person who is actually working for you, not the railroad, in attempting to find a rewarding and, more importantly, legitimate occupation for you to embark on after you have been forced to leave your old occupation.