RAIL WORKERS NEED NO-FAULT COMPENSATION INSURANCE.

Byline: Bob Sexton

A brakeman for the Grand Trunk Railroad Co. claimed he threw his back while switching a train onto another track. He returned to light duty work and reinjured himself two years later when the train he was working on came to an abrupt stop.

Using hidden cameras, railroad investigators found him lifting heavy appliances - but a jury still awarded him almost $400,000 for his injuries.

A brakeman for Seaboard System Railroad stepped out of a rail car just before the train's whistle blew. The brakeman's attorney convinced a jury that the loud noise from the train's whistle caused irreparable ear damage. Despite testimony from an ear doctor that the brakeman only lost 1.5 percent of his hearing (he could still hear as well as 40 percent of people his age), he was awarded a settlement of $1 million.

A brakeman for Burlington Northern was not so lucky in court. While attempting to board the caboose of a slow-moving train, he slipped. His feet were crushed under the caboose and later had to be amputated. He was not awarded a penny, because the railroad's attorney successfully argued that he had attempted to board the caboose incorrectly.

Why are the settlements in these cases so dramatically different? And why have the number of railroad workers, the number of job injuries and the number of employees filing for injury compensation declined, yet the annual cost of those claims has risen dramatically?

The answer to these questions may fall under an obscure 82-year-old statute called the Federal Employer's Liability Act (FELA). Unlike most American workers, when railroad workers are injured on the job, they are not covered by state no-fault workers' compensation insurance. Rather, they must seek to recover their losses from the railroads under the provisions of the FELA.

It is a costly system that grants windfall settlements to some and the bare minimum - or even nothing - to others.

FELA was established in 1908, a time when the railroads were the nation's largest employer and rail work was extremely dangerous. In those days, brakemen had only a 30 percent chance of dying a natural death and switchmen had an on-the-job life expectancy of a little over seven years. So FELA allowed a railroad worker to sue the railroad in state or federal court. If the employer was at fault, it was liable for the damages, and if the employee was at fault, the compensation was reduced proportionately.

Today, most industries, except railroads, have turned to no-fault insurance. Under a no-fault system, instead of assigning blame to one party and then establishing a penalty, the goal is to rehabilitate the injured worker and to reach a prompt, fair and predictable settlement. The problem is that FELA encourages management and labor to blame each other, which can lead to costly and unnecessary litigation. The only parties that clearly benefit are the attorneys, who reap more than 25 percent of the settlement.

As a result, FELA costs have forced the railroad to lay off workers and caused a lottery-type system of compensation for injured rail workers. The railroads need to join the rest of the American labor force with no-fault workers' compensation. It is time for Congress to end FELA, because taxpayers and consumers are funding a costly system that inhibits the cooperation that is necessary to objectively and effectively investigate accidents.