In the recent past, several insurance companies have issued controversial guides about what to do if you are in a car accident–the controversy arises from the not so subtle message NOT to retain an attorney. Actually, several lawsuits forced insurers to change or alter their materials. Now, Norfolk Southern, which is subject to claims falling under the Federal Employers’ Liability Act ("FELA") has issued a brochure called "Injured At Work" and is sending it to every employee that reports an injury or on the job disease or disorder. The brochure is so full of deception and inaccuracies that our law firm, which handles railroad injury claims and suits, has issued a point by point "rebuttal" to set the record straight. An excerpt is issued below, and the full rebuttal is available free from our law firm (800-752-0042, Hajek, Shapiro, Cooper, Lewis & Appleton).
Many railroad workers believe that the injury system is workers compensation (workers compensation is a "no fault" system, meaning compensation occurs whether an employer is at fault/negligent or not, but railroad workers hurt on the job fall under a unique federal law system, the FELA, and are only compensated by showing negligence or a statutory/regulatory violation of the railroad or its agents. For a full discussion of the FELA, visit our website at www.HSInjurylaw.com and locate complete articles on this topic.
"[T]he company will make every effort to reach a settlement of the claim that is fair to everyone."
REAL RESPONSE: Well, in fact NS is trying to make a settlement that is fair to NS and really does not have a great deal of regard to whether the settlement is fair to the worker. We have seen many cases in which the total goal of the railroad lawyer is to deny a penny of compensation to a railroad worker and we don’t believe a statement that NS is seeking a settlement fair to everyone is accurate.
Q: If it is necessary for me to obtain medical attention, will my supervisor go with me to the hospital or the doctor’s office?
A: "Yes. Your supervisor is charged by the company with seeing that you receive proper medical attention promptly…. He or she can also provide the doctor or hospital with information concerning payment of medical bills, the processing of forms and procedures for obtaining prescribed medications."
REAL RESPONSE: We have been involved in many cases where the supervisor intervenes with the railroad worker’s doctor, pleading with the doctor not to prescribe prescription medications that would make an injury a "federal reportable" injury. Other examples are well known as well. And by the way, what does your supervisor have to do with your personal medical care? We don’t think they have a right to know a thing about your personal medical care except for the fact that NS wants your first medical visit to be to a doctor that it has a prior relationship with (hopefully this doctor will "help" the railroad to avoid an FRA reportable injury, but this will not medically help you the patient!) You as a worker have no duty to let a supervisor know anything about your medical condition and the only duty you have is to have your first medical visit at a place that the company suggests if in fact there is a clinic convenient to where you are located. In an emergency situation the railroad can not demand that you go to some pre-approved railroad company approved doctor-you should get the closest available emergency care of course.
Q: Since my case could go to court, and I have the right to sue, doesn’t it make sense for me to have a lawyer representing me from the beginning?
A: You should hire a lawyer only after careful consideration of whether it is in your best interest to do so….you should remember that you have three years from the time of your injury to start a court action, so there is not need to hire a lawyer immediately. It is a good idea to try to reach a suitable agreement with the claim agent before employing a lawyer.
REAL RESPONSE: Examples are best to explain why this is a deceptive answer by NS-amazingly NS essentially is saying: don’t call that lawyer! Wait a year or two!. Remember those commercials where you see a house burn down and the insurance agent is there to give a check to the poor homeowner standing where the home once was? The problem with getting that quick settlement is that the poor homeowner probably has no idea of the value of all the contents of the burned down house and likewise a railroad worker has no idea of the value of their claim right away, without obtaining legal advice from a skilled railroad injury lawyer. NS says here there is no rush to hire a lawyer because you have three years to sue! What about that important issue called "preserving the evidence?" The biggest problem we see with cases where we are retained after a year or two years or more, is that the evidence is gone, the workers who can provide evidence are difficult to locate and there are innumerable changes to the involved equipment or scene of the accident. The precise reason you need to consult with a lawyer is so you can obtain attorney-client privileged advice before you decide to retain us. For example, we might just know whether your circumstances could involve a regulatory violation which would eliminate a need to prove that the railroad even knew about the violation, unlike the legal standards for negligence cases against railroads. The railroad claim agent will never explain this to you. Of course, the railroad claim agent will consult with the railroad’s lawyers and the railroad law department on an attorney-client privileged basis and you will never know that. Why shouldn’t you consult on attorney on your side if the claim agent is secretly doing so to protect the railroad? You should always seek a free initial consultation with a skilled railroad injury lawyer before deciding on a rapid settlement, under which you may have no idea what the value of your claim is, and you may have failed to appreciate just how extensive your personal injuries are. How can you know if a settlement offer is "good" if you do not understand all that you may be entitled to under the law?
A: An attorney…will usually require you to sign an agreement covering the fees he will be paid for handling your case….from 25% to 40% of your settlement (or court verdict), plus the expenses of the attorney and others in his office to research, travel, meals, consultant fees, etc. Although an attorney may sue for a large amount, the attorney cannot guarantee the outcome….
REAL RESPONSE: No ethical lawyer will guarantee an outcome-this is true, but the rest of this response omits a lot of important points. First, the railroad is hoping you will not get a privileged, confidential "free consultation" from a lawyer. There is no obligation to sign a contract with our law firm and we will provide that free initial consultation. Why shouldn’t you have legal advice if the railroad claim agent and railroad supervisors are getting it on a confidential basis themselves? The nonpartisan General Accounting Office of the U.S. Congress was asked by Congressmen, during the 1990’s, to evaluate whether the railroad injury law system was outdated and costly, and should be replaced with some railroad workers compensation system that the railroads have sought since the early 1900’s-to replace the existing Federal Employer’s Liability Act. The study covered many aspects of this railroad injury law called the FELA, but it statistically found that attorneys recovered far more on average than railroad workers who did not have representation. The railroads know this and they work hard to see that injured workers do not get legal representation because the settlements are statistically bigger and it costs the railroads a lot more when the railroad worker and their skilled lawyer demand compensation that is fair and covers all present and future aspects of the injury claim.
Lets talk about the case expenses that NS claims a lawyer may "spend," as this is a favorite NS scare tactic. Our law firm advances any of these court costs and expenses for you, and ONLY WHEN WINNING YOUR CASE REQUIRES IT. The client repays these necessary expenses only upon the settlement, resolution, or upon a verdict in court. For example, if your surgeon requires an hourly fee to give a deposition about the extent of your injuries, we must pay this on your behalf. Or, if we need to get a medical illustration to show exactly how complicated and problematic your surgery was, we want to have this illustration so a jury will understand how significant your problems will be and what future implications there are. The railroad doesn’t want a jury to see those exhibits because they want an early, cheap, settlement where you have no idea what all the implications of your injuries are. It is simple economics and that is why lawyers obtain larger settlements. Also, knowledge is power. One example: lets say you already had surgery and are dealing with a claim agent and do not have a lawyer and are beginning negotiations. Do you really think the NS claim agent will contact your surgeon and ask: "Doctor, how permanent is the affect of this surgery, and what future issues should NS consider before we settle the claim?" You must be kidding! However, this is but one of many, many things your lawyer will always do. Last, our firm, like most, does not charge any attorney fees unless we win a settlement or verdict for you, and the contingent percentage is only by written agreement discussed with you before you retain our firm. We explain all issues with you before you retain us. Yes, our clients retain us because they believe that they will recover fair compensation using our services, and usually this CLEARLY MEANS CLIENTS BELIEVE THEY WILL DO BETTER THAN DEALING WITH THE RAILROAD CLAIM AGENT WITHOUT LEGAL REPRESENTAION.
Q: What about recommendations from friends or strangers?
A: Some lawyers employ investigators or runners who primary function is to solicit personal injury cases for the lawyer….Often, if they are successful in obtaining a case, the lawyer pays them a lump sum or a percentage of your settlement.
REAL RESPONSE: In Virginia where our law firm is based it is unethical, if not down right illegal to pay an investigator or any other person a fixed sum of money as direct compensation for getting a railroad worker to retain a lawyer. This railroad statement is baseless and deceptive and certainly is not what happens at our law firm, or any firm in compliance with state laws. Obviously, our investigators, particularly the ones who are retired railroad workers, have great background in understanding railroad injuries and accidents, and not only in assisting clients with various questions after a worker retains our law firm, but our investigators help us locate evidence and witnesses, interpret and identify railroad rules and procedures that apply in the case, and in overall strategy for your case. An investigator for out law firm, in many ways is no different than a railroad claim agent who is paid by the railroad. The claim agent is supposed to gather evidence to defend the railroad. Our investigator is employed to help you obtain evidence and information that will help your claim against the railroad. What is the difference? As a matter of fact, the railroad claim agent is probably given bonuses by keeping the amount of your claim to the lowest extent possible. And that is legal! Our law firm, under the law, cannot promise our investigators (or any other person) a sum of money to try to convince a worker to retain our law firm. We rely on the biggest time tested factor: our track record. Study our law firm website: www.HSInjurylaw.com and you will learn why railroad workers and their family members have entrusted our lawyers with their claims and why the railroad invested big money to publish its brochure just to convince you not to obtain a free initial consultation with an experienced railroad injury law firm.
For more information on this subject, please refer to the section on Airline, Cruise, Bus and Other Mass Transit Accidents.