A Second Bite of The Apple

Hoey Farina Team
  • Hoey & Farina, P.C.
  • FELA Lawyers / Railroad Injury Attorneys
  • 1-888-425-1212
  • info@hoeyfarina.com


Note: This article contains a description of legal concepts that is NOT recommended to be used under any circumstances when an employee is injured on the railroad. It is meant only as an example of legal remedy under unique and extreme circumstances.


There are limited circumstances under FELA law that permits an injured railroad worker to take a second bite from the settlement apple. That is, there are circumstances where an injured employee signs a release with the railroad for an on the job injury where the release can be voided and additional compensation is available for the injured employee. However, the better path for an injured worker to take is not to settle a claim with out discussing it first with experienced FELA lawyers at Hoey & Farina.


The typical fact pattern goes something like this. A railroad employee injures his knee. He is treated by the company doctor and is diagnosed with a strained knee. The employee misses one month of work, maybe $5,000 in lost wages. Soon after he returns to work, the railroad claim agent appears and offers the employee $10,000 to settle up. The railroader, thinking he is healed, signs a release and settles the case for the $10,000.

After settling, the knee begins to bother the employee. He goes to his family doctor who refers the employee to an orthopedic surgeon. The surgeon diagnoses internal damage to the knee and recommends surgery. The employee begins to miss work again, and after surgery, he is not physically able to return to railroad work. At this point the railroader returns to the claim agent and the claim agent waives the signed release in the employee’s face and shows him out of his office. The employee then calls a FELA lawyer.


There are two avenues to take in a lawsuit to seek additional compensation. One, the railroad knew the injury was more serious and committed fraud in procuring the release from the employee. This tact is seldom successful.

The more common argument involves mutual mistake of fact. A release is a contract. Under basic contract law, a contract may be invalidated if the parties entered into the contract under a mutual mistake of fact. In order for the court to decide if the release / contract should be invalidate under the doctrine of mutual mistake of fact, the court will look at several factors. One factor the court will look at the amount of compensation given in exchange for the release in comparison to the amount of lost wages at the time of signing the release versus the amount of lost wages as a result of the work injury after it fully manifests itself. In the above example, the amount of compensation was only slightly more than the lost wages, ($5,000 lost wages - $10,000 compensation); if the injury prevents the employee from returning to work his lost wages may be in the hundreds of thousands of dollars. This is an important factor in favor of the employee when the difference in lost wages is significant.

Another factor is the amount of time elapsed between the work injury and the settlement. The shorter the time, the more likely the release can be broken. Also, the court will look at whether the injured employee was represented by legal counsel. If the employee had a FELA lawyer, a court will seldom break the release.

Finally, the most important factor is a mistake regarding the nature and extent of the work injury. If both the railroad worker and the claim agent labored under the belief that the injury was only a strain at the time of settlement, and the injury was later diagnosed as a very serious work injury and surgery is performed, the court may be persuaded to set aside the release. However, if the injury as originally diagnosed is one that may progress to surgery, no mistake is present as to the nature and extent of injury, the only mistake is to the long term course the work injury takes and the release can not be broken.

The ultimate determination of whether a second bite of the apple will be permitted by the court, however, is a fact intensive inquiry and each case will be decided on its own merits. Even where the court permits a case to proceed after a release is signed, the court usually will allow the railroad to argue to the jury that a release was signed and no mistake was present. This can be devastating testimony for a jury to hear.


The bottom line is not to be put in this situation. Do not sign a release for a work injury, no matter how slight, without consulting with a FELA lawyer at Hoey & Farina. We can be reached 24 hours a day at 1-888-425-1212 or info@hoeyfarina.com.

If you or a loved one have suffered a work injury or wrongful death on the railroad, call an experienced FELA lawyer / railroad injury attorney at Hoey & Farina, P.C. at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.


542 South Dearborn Street
Suite 200
Chicago, Illinois 60605
Main: (312) 939-1212
Toll Free: (888) 425-1212
Fax: (312) 939-7842
Email: info@hoeyfarina.com
Representing clients throughout the United States.


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