A collision between two track maintenance vehicles near Bluefield, West Virginia (WV), sent three Norfolk Southern employees and two contractors to the hospital with injuries. The crash near the border with Virginia happened on August 28, 2017.
Details on why the on-the-job accident happened are scarce. Additionally, all reporters were told about the track maintenance crew members’ injuries was that they are not considered life-threatening.
The Federal Railroad Administration has many detailed regulations regarding track occupancy by maintenance workers. One example is 49 C.F.R. section 214.321, which states, in part,
Working limits established on controlled track through the use of exclusive track occupancy procedures shall comply with the following requirements:
(a) The track within working limits shall be placed under the control of one roadway worker in charge by either:
(1) Authority issued to the roadway worker in charge by the train dispatcher or control operator who controls train movements on that track,
(2) Flagmen stationed at each entrance to the track within working limits and instructed by the roadway worker in charge to permit the movement of trains and equipment into the working limits only as permitted by the roadway worker in charge, or
(3) The roadway worker in charge causing fixed signals at each entrance to the working limits to display an aspect indicating “Stop.”
(b) An authority for exclusive track occupancy given to the roadway worker in charge of the working limits shall be transmitted on a written or printed document directly, by relay through a designated employee, in a data transmission, or by oral communication, to the roadway worker in charge by the train dispatcher or control operator in charge of the track.
(1) Where authority for exclusive track occupancy is transmitted orally, the authority shall be written as received by the roadway worker in charge and repeated to the issuing employee for verification.
(2) The roadway worker in charge of the working limits shall maintain possession of the written or printed authority for exclusive track occupancy while the authority for the working limits is in effect. A data transmission of an authority displayed on an electronic screen may be used as a substitute for a written or printed document required under this paragraph. Electronic displays of authority shall comply with the requirements of § 214.322.
(3) The train dispatcher or control operator in charge of the track shall make a written or electronic record of all authorities issued to establish exclusive track occupancy.
(4) An authority shall specify a unique roadway work group number, an employee name, or a unique identifier. A railroad shall adopt procedures that require precise communication between trains and other on-track equipment and the roadway worker in charge or lone worker controlling the working limits in accordance with § 214.319. The procedures may permit communications to be made directly between a train or other on-track equipment and a roadway worker in charge or lone worker, or through a train dispatcher or control operator.
As longtime Virginia Federal Employers Liability Act attorneys licensed to practice in Virginia and West Virginia, my law firm colleagues and I know that the injured Norfolk Southern employees and contractors likely have grounds for filing claims under the federal law commonly called FELA due to a violation a law like the track occupancy standard. Protecting many of the same rights to work in a safe environment and to seek compensation for job-related injuries and illnesses as state workers’ compensation laws, FELA operates much differently. One of the most significant ways in which FELA differs from workers’ comp is that securing compensation, damages and medical expenses requires filing a lawsuit against the at-fault railroad corporation, usually in a federal court. The workers’ comp process starts with filing an application to the state program.
Consulting with an experienced and dedicated FELA lawyer will help an injured rail company employee or individual working under contract for a railroad understand and navigate the claims process. Two important insights for getting started come from the Brotherhood of Railroad Signalmen (BRS) and the Brotherhood of Locomotive Engineers and Trainmen (BLET).
The BRS tells members
An injured worker who needs medical attention should see their own doctor. Often the railroads will take a position that it is not responsible for any injury unless the injured worker goes to a company doctor or company hospital. This is not true. If a worker does not have a family doctor, it is preferable that he or she sees a doctor who is not associated with and paid by the railroad. …
An injured worker has an absolute right to pursue an action against the railroad for injuries sustained under FELA and to obtain the services of competent, caring attorneys. The right counsel will be able to assist the injured worker and his family in receiving their maximum benefits during the time that employee cannot work.
The BLET explains why getting a legal advisor and representative involved can help the injured rail worker:
Negligence in the FELA context is defined as the railroad's failure to exercise reasonable care in its obligation to the employee. Negligence can be as a result of not providing a safe place to work, proper tools and equipment to do the job, or adequate help or training. The courts have held that the employer's negligence does not have to be the sole cause of the accident. So long as the carrier was at fault in the slightest degree, that negligence is enough to establish the right to bring a claim.
Establishing corporate negligence against a company with the financial and legal resources of Norfolk Southern, CSX or Amtrak requires time, resources and expertise an injured railroad worker typically lacks.