Personal Injury - Work Injury - Nursing Home Injury
Thursday, April 26, 2012
Federal Employees Liability Act
If the injured worker is employed by a railroad, he falls under the Federal Employees Liability Act (FELA) – a law that provides special protection to employees of railroads.
If the injured worker can prove that his employer was negligent (that is, provided an unsafe place to work) then he can recover for pain and suffering and disability and can recover full compensation. Such a case is usually worth much more than a Workers Compensation case since Workers Compensation has strict statutory limits. Further, with the FELA, the Plaintiff can have his case decided by a jury, which is always preferable since they have more in common with an injured Plaintiff.
Sometimes a worker is considered “employed” by the railroad even if he has a non-railroad employer. If we can demonstrate that the injured Plaintiff was 1) borrowed by the railroad or 2) working for two employers simultaneously, the railroad and his own employer, or 3) the injured Plaintiff’s employer is subservient to the railroad (under the railroad’s control), then we can seek protection under FELA. This can make the difference between a lifetime of benefits compared to the more meager Workers Compensation remedies.
Under the FELA, if the injury to the employee was not caused by the employer’s negligence, then there can be no recovery for pain and suffering and disability. However, the employer is still responsible for paying the employee’s medical bills and a percentage of his or her lost wages. This is called maintenance and cure.
One unfortunate aspect of the FELA law is that if the injured worker reaches maximum cure, the employer need no longer pay for his medical bills. In other words, if medical bills are purely for “palliative” treatment (that is, to treat pain) rather than providing functional improvement, the employer can cut off benefits.
For example, if there is no cure for an employee’s back pain and the patient is functionally as good as he will get, then paying for prescriptions to alleviate pain will be the responsibility of the employee, not the employer. It’s unfair, but it’s the law. The only way to force an employee to pay for “palliative” treatment is if we can prove the employer was negligent or did not provide a safe place to work. If there is a dispute regarding whether treatment is palliative or not the court will generally rely on the word of your treating physician.
Hence, to sum it up, if the employer was negligent, you are entitled to compensation for pain, suffering, disability, disfigurement, future pain and suffering, lost wages and all medical bills. If the employer was NOT negligent, then you are entitled to maintenance and cure that is payment of medical bills and a percentage of your lost wages until you have reached a state of maximum medical improvement.
It’s important that if you are injured at work, you obtain immediate treatment, provide specific explanations to the doctor about how your accident happened, that it happened at work, and be accurate in your descriptions of pain problems to your doctor or the company doctor. Get the names of witnesses and their phone numbers if possible and consult a lawyer immediately. The employer has high-paid attorneys to stop you from receiving just compensation – and they work quickly in FELA cases.
If your employer offers you free medical care, take it. Consult with an attorney about seeing your own physician. The employer’s doctor is likely to be biased against you and in favor of your employer, so it is important that you also have your own treating physician.
The FELA has both good and bad points. If the injury is not the fault of the employer or your co-employees, then you will wish you fell under the Workers Compensation no-fault system. If the employer was at fault, then you will be well compensated under the FELA. Contact us today!!!