FELA vs. Workers’ Compensation

Workers in most industries are insured for work-related injuries under state workers’ compensation laws. Railroad workers, however, are covered by the Federal Employers’ Liability Act (FELA). Both systems were established as progressive measures to compensate workers for on-the-job injuries and work-related illnesses, and to promote safety measures on the part of employers. FELA was passed by Congress in 1907. In 1911, New Jersey was one of twelve states to pass workers’ compensation legislation (at that time referred to as workman’s compensation). Beyond the industries affected, distinctions between the programs include the bases for claims, the role of fault in determining an award, the court where the case is handled, types of damages, and the contemporary philosophy underlying the legislation.

The basis for a claim: FELA requires a railroad worker to prove an on-the-job injury was, at least in part, the result of negligence on the part of the railroad (or a railroad employee, agent, or contractor). In contrast, New Jersey Workers’ Compensation law, like that in other states, does not require proof of negligence, and requires an employer to compensate a worker for any work-related injury or occupational illness.

The role of negligence in a claim: Workers’ comp does not require any evidence of negligence on the part of the employer, and negligence on the part of the employee will not reduce the amount of the claim. FELA observes the doctrine of contributory negligence, a fault-sharing system where an employee partially responsible for his or her on-the-job injury will receive an award reduced in proportion to that responsibility. Determining the percentage of fault in a FELA case is highly subjective; as a result the decision of a court used to the traditional personal injury system may be hard to predict.

Where the claim is tried: An injured railway work may file a FELA claim in a New Jersey State or Federal court, and is entitled to a jury trial. A worker injured in another industry will file a claim with the employer’s workers’ compensation insurance company. In the event of a dispute, the worker may file a claim petition or application for an informal hearing with the New Jersey Division of Workers’ Compensation. The case will then be assigned to a state judge and district based on the county where the worker lives or is employed.

Types of damages available: Both FELA and workers’ comp claims provide damages for past and future wage loss and medical treatment. FELA provides damages for pain, suffering, and emotional distress; workers’ compensation does not. Each plan provides some compensation for permanent partial or total disability, and workers’ compensation has a payment schedule to compensate for the loss of use of a limb, hearing, vision, or other function. The way damages are calculated differs significantly between the plans.

Why two systems? The railroad industry has repeatedly lobbied Congress to repeal FELA or replace it with a system similar to workers’ compensation; Congress has resisted. Supporters of FELA cite it as more than a railroad workers’ compensation plan, providing critical encouragement to the railroads to curb unsafe practices and improve dangerous work environments.

In the event of a work-related accidents

The railroads and other employers will attempt to minimize costs resulting from an on-the-job accident or work-related illness. Supervisors are trained to immediately collect information and evidence to support the employer’s defense against any claim for damages. To preserve the right to FELA or workers’ compensation benefits, an injured worker should report the accident or illness, but not make any statement until after consulting with a workers’ compensation or FELA lawyer or with a union representative. The worker should immediately record the names and contact information of any witnesses, and write out a private record of any events surrounding the accident.

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Choosing a Doctor & Getting Medical Treatment

You have been hurt on the job, or are showing symptoms of an occupational illness. Your first responsibility was to notify your employer of the accident or injury. Next, you need to submit a request to your employer to get medical treatment. Under New Jersey Workers’ Compensation law, your employer or your employer’s insurance company can select the health-care provider to treat your work-related injury or condition. Some employers will agree to let you see your own doctor or chiropractor. Be sure to have that written permission with you before visiting your own clinic.

You will not have to pay any co-pay or deductible—the entire cost of treatment, including physical therapy, chiropractic treatments, doctor’s visits and other expenses, is covered. The doctor chosen by your employer will typically be under contract with your employer’s insurance company. Unfortunately, some of those providers take advantage of the relationship and do not provide the customer service, quality of diagnostics, and referrals to specialists you would find at your regular clinic.

If you are not happy with the workers’ comp doctor

Your employer does have the right to choose your doctor. However, if that means you are not receiving reasonable and necessary treatment that will cure you, relieve pain, or restore function, you have options. DO NOT go to your regular clinic and try to use your regular health insurance—treatment for a work-related injury is probably excluded from the policy.

You can file a claim in Workers’ Compensation Court, a Motion for Medical and/or Temporary Disability Benefits. Your motion will be scheduled to be heard by a judge within 30 days of filing. The judge can order the insurance company to pay for the treatment, diagnostic studies, or an evaluation by a specialist. If a doctor provides a statement that you need medical care before the hearing, and that a delay will result in irreparable harm, you can file a Motion for Emergent Medical Care.

Should you represent yourself in workers’ compensation court?

The claim process is complex and it is recommended that you retain a workers’ compensation attorney to represent you. Your lawyer will not charge a fee in a workers’ compensation case until the matter is ended, at which time the fee is determined by the judge. That fee will never be more than 20% of the award.

What is maximum medical benefit?

The workers’ compensation authorized doctor will eventually declare you have reached “maximum medical benefit” and should return to work. You may not have completely recovered from your injury and still experience pain and other symptoms, but if you have reached maximum medical improvement, you will not benefit from further medical treatment.

For more than a century, Workers’ Compensation Law has provided New Jersey workers with a no-fault insurance plan for on-the-job injuries and occupational diseases. The system may be challenging at times, but protects workers and forces employers to provide employees with care and compensation in the event of injuries.

Contact us for a free attorney consultation, or visit our Practice Areas page for more information about Taylor & Boguski.