As we all know, as soon as a railroad employee is injured, the railroad starts plotting how it will defeat any potential work injury claim.
Immediately, the railroad claim agent, law department, police department and supervisors go into action. Some railroad officers are assigned to follow the ambulance to the hospital where they will interrogate the injured employee even as he is being wheeled in for emergency surgery!! Other officials converge on the scene deciding what evidence to keep and what evidence should be allowed to drift away like the sands of time.
For example, Hoey & Farina has handled numerous coupling injury cases. Sometimes no inspection of the equipment is performed, other times a visual inspection is done, still in other cases an abbreviated inspection will determine only if the coupler will open and close and sometimes, rarely, the couplers will be broken down for a complete internal inspection. In some cases the railroad takes extensive photographs of the scene, in other cases nothing is photographed. Sometimes the railroad takes statements of everyone involved, other times selected employees are deposed, and often the railroad claims it never interviewed anyone.
Hoey & Farina regularly receives calls at all hours of the day and night reporting a serious injury on the railroad. We immediately launch our own investigation in an attempt to protect the injured employee from the railroad “stacking the deck” against him.
CO-WORKERS RELIABLE SOURCE OF INFORMATION
One of the best and most reliable sources of information is from co-workers of the injured employee. If there are eyewitnesses to the accident, pre-injury or post-injury witnesses to a defective or dangerous condition, or post-injury witnesses to the railroad’s selective investigative techniques, we will attempt to obtain written statements documenting those facts. The human memory is a very fragile thing. Unless impressions are immediately committed to paper, they are prone to fade into oblivion.
Recognizing the need to protect injured railroaders, Congress passed § 60 of the FELA. Section 60 makes it a federal criminal offense for a railroad officer “by threat, intimidation, order, rule, contract, regulation or device whatsoever” to attempt to prevent any employee from furnishing voluntarily information about an injury to the injured employee, his family or his attorney. The maximum penalty for conviction of a violation of § 60 is one year in jail and a $1,000.00 fine.
Some Courts have interpreted § 60 to permit an injured employee’s counsel to communicate with any railroad employee, even the railroad’s president during an investigation into the facts of an injury. Although we have never called a railroad’s president seeking a statement, we have gone to great lengths to protect an injured employee’s right to investigate under § 60.
SKETCHY RAILROAD SAFETY RULES
Notwithstanding the clear mandate of § 60 of the FELA, many railroad safety rules still contain sketchy restrictions on giving information after an accident. Often this rule is craftily worded so as to barely recognize the requirements of § 60, but still can be cited by a supervisor to intimidate an employee from helping an injured co-worker.
In the event a railroad official attempts to prevent an employee from voluntarily providing information to an interested party after an injury to a railroad employee, a full record should be made, including the name of the official, the date, time and location of the incident and the names of any witnesses. Most railroad officers are trained in the prohibitions of § 60. If asked, point blank, if they are ordering an employee not to voluntarily furnish information to an interested party, the officer usually will back down.
Nevertheless, § 60 is an important right granted by the United States Congress to all railroad employees in the event they are injured. Any action by the railroad to encroach on § 60 rights must be firmly and immediately called to the attention of the FRA, your union officer and the injured employee’s designated counsel.