This article discusses a new railroad employer tactic that seeks to take money out of the pockets of railroad workers who get a verdict under the Federal Employer Liability Act. The new railroad tactic is that if the railroad loses a verdict to a railroad worker for an injury or disease claim, the railroad tries to then claim back a portion of money it paid into the Railroad Retirement Board system by claiming a set off from the verdict. Apparently, beginning in about 2007, railroad defense attorneys around the country began a concerted effort to ask courts to provide railroads a credit for some of the money paid into the Railroad Retirement Board system. This novel argument had little to no basis in any law or regulation. Almost every court that has considered the issue, at least on appeal, has denied a set off against a railroad workers verdict for the railroad's contribution to Railroad Retirement Board benefits.
To allow consumers and railroad workers to see what the legal points are that we have argued in support of the railroad worker position, we are posting an entire brief that was filed with the North Carolina Court of Appeals. In this particular case, the North Carolina Court of Appeals held in favor of our client, and reversed the decision of the trial court judge which had granted a Railroad Retirement Board set off in favor of the railroad. Accordingly, the appeal court in this case, and in other cases around the country, have properly denied the railroad's claim for a set off for any of its benefits the employer paid. This means that there would be no set off or reduction of a railroad worker personal injury verdict, just because an employer paid a portion of Railroad Retirement Board payments in the past.
Our actual brief, simply eliminating the last name of the worker we represented, is set forth below, although it is noted that the brief is a public document so there is no privacy or confidentiality issue. Click here to read the brief.