Compensating Injured Railroad Workers Under the Federal Employer's Liability Act Special Report 241 (1994) / Chapter Skim
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Special Report 241 Compensating Injured Railroad Workers Underthe S Federal Employers' Liability Act
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1994 TRANSPORTATION RESEARCH BOARD EXECUTIVE COMMITTEE Chairman: Joseph M Sussman, JR East Professor and Professor of Civil and Environmental Engineering, Massachusetts Institute of Technology, Cambridge Vice Chairman: Lillian C
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Special Report 241 Compensating Injuted Railroad Workers Underthe Federal Employers' Liability Act TRANSPORTATION RESEARCH BOARD National Research Council NATIONAL ACADEMY PRESS WASHINGTON, D.C.
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Transportation Research Board Special Report 241 Subscriber Categories IA planning and administration VI public transit VII rail Transportation Research Board publications are available by ordering directly from TRB. They may also be obtained on a regular basis through organizational or individual affiliation with TRB; affiliates or library subscribers are eligible for substantial discounts.
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Committee for Study of the Federal Employers' Liability Act CLINTON V OSTER, JR., Chairman, Indiana University, Bloomington W
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Preface Acting through its report on the 1991 Department of Transportation and Related Agencies Appropriations Bill, the House Appropriations Committee requested a comprehensive analysis of the Federal Employers' Liability Act of 1908 (FELA)
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vi • Preface their effectiveness in successfully addressing the problems created by workplace injuries. The committee addressed the chief points of contention between supporters and opponents of FELA including the level and cost of benefits, the administrative costs and delays in providing compensation, the amount of litigation and legal costs, the effect on employee relations, and FELA's safety incentives.
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Preface • vii The views of railroad management regarding FELA were provided by Edmund W Burke, Executive Vice President -- Law and Government Affairs at Burlington Northern; Robert W
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viii • Preface for a sample of one railroad's FELA claims. Robert McCallister, Washington State Board of Industrial Insurance Appeals, arranged for the estimates under Washington's system, and the estimates were prepared by Sandy Dziedzic, Quality Assurance Manager, Washington State Department of Labor and Industries.
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ContentS Executive Summary 1 Introduction 11 Railroads and the Transportation Industry, 14 Historical Development of Compensation Systems for Injured Workers, 15 Criticisms and Defenses of FELA, 19 2 Overall Context for Compensation of Injured Workers 26 FELA Benefits within the Overall Compensation Context, 28 Workers' Compensation Benefits within the Overall Compensation Context, 34 3 Criteria for Analysis of Compensation of Injured Workers 38 Disability and the Basis for Compensation, 38 Goals for Compensation Systems, 44 Legal Concepts of Injury Compensation, 49 Assessment Criteria for Injury Compensation Systems, 53
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4 Railroad Injury Compensation Process 59 Overview of FELA Process, 60 Industrywide Data on FELA Process and Costs, 73 Summary, 78 5 State and Federal Workers' Compensation Programs 81 Program Operation, 83 Compensation for Loss, 85 Medical Coverage, 86 Compensation for Lost Wages, 87 Rehabilitation, 99 Compensation for Survivors, 102 Dispute Resolution, 103 Coverage of Workers in Interstate Commerce, 111 Summary, 112 6 Comparison of FELA Process and Workers' Compensation Systems 119 Data Problems and Sources, 120 Levels of Benefits, 121 Comparison of Railroad and Workers' Compensation Benefits, 124 Comparison of FELA and NCCI Data, 129 Case Study Comparison, 131 Comparison Between Commuter Rail Under FELA and Rail Transit, 137 Transactions Costs, 138 Summary, 146 7 Modal Competition and Federal Appropriations 149 Modal Competition, 150 Federal Appropriations, 154 8 Findings and Conclusions 159 General Findings, 159 Specific Findings, 160 Opportunities for Improving the FELA Process, 166 Appendix A: Railroad Safety 168 Appendix B: Terminology 181 Study Committee Biographical Information 184
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Executive Summary Railroad workers who are injured on the job seek compensation for their injuries under the provisions of the Federal Employers' Liability Act of 1908 (FELA)
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2 • Compensating Injured Railroad Workers Under FELA THE FELA PROCESS Many employment and compensation practices for railroad workers date from an era in which railroads were the premier industry in the United States and working for a railroad was especially hazardous. The enactment of FELA strengthened railroad workers' rights to sue their employers for all damages related to on-the-job injuries without limit or restriction, including compensation for medical expenses, lost wages, disabilities, future earnings losses, and pain and suffering.
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Executive Summary • 3 ment employees and one that covers private employees in longshoring operations. Workers' compensation is a liability system that mandates insurance.
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4 Compensating Injured Railroad Workers Under FELA More specific study findings are presented in the following discussion for each of the critical areas of evaluation relating to injury compensation systems: benefits to injured workers, the costs of providing these benefits, and incentives (see Chapter 3)
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Executive Summary • 5 Do All Injured Receive Compensation? Neither FELA nor workers' compensation compensates all injured individuals.
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6 • Compensating Injured Railroad Workers Under FELA What Are the Indemnity Benefits? FELA provides a higher level of benefits than workers' compensation systems because all losses are compensable without preset limitations.
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Executive Summaiy • 7 negligence and the employee's estimated total losses for each claim (for which compensation was sought) are not known.
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8 • Compensating Injured Railroad Workers Under FELA Workers' compensation litigation takes place mostly before administrative bodies rather than courts and juries and is likely to be less expensive than FELA litigation. Finally, there is some reason to believe that FELA is more efficient in transactions costs than other tort systems.
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Executive Summary • 9 findings on this issue. Workers' compensation systems deal more directly with rehabilitation and return-to-work costs than does the FELA process.
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10 • Compensating Injured Railroad Workers Under FELA OPPORTUNITIES FOR IMPROVING THE FELA PROCESS Changes to FELA depend on a willingness of the railroads and their employees to discuss solutions. Indeed, nearly all labor and social legislation affecting the railroad industry has resulted from negotiations between the carriers and their employees.
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I ............................ Introduction The Federal Employers' Liability Act of 1908 (FELA)
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12 • Compensating Injured Railroad Workers Under FELA in high legal fees for both employees and employers. Protracted delays in resolving cases are said to not only increase costs for employers but also delay benefits for employees.
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Introduction • 13 EXCERPT FROM CONGRESSIONAL REPORT CALLING FOR TRB STUDY The National Transportation Policy recommends the repeal of the Federal Employers' Liability Act (FELA)
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14 • Compensating Injured Railroad Workers Under FELA the cost and performance of the FELA process using railroad industry data assembled as part of this study and where possible to compare the cost and performance of FELA with those of state and federal workers' compensation systems. Finally, the estimated effect, under various assumptions, of FELA on modal competitiveness and federal appropriations is analyzed in Chapter 7.
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Introduction • 15 tion (Conrail) , CSX Transportation, and Norfolk Southern in the East and Burlington Northern, Santa Fe, Southern Pacific, and Union Pacific in the West.
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16 • Compensating Injured Railroad Workers Under FELA 125 was killed every year; the average life expectancy of switchmen after starting work was 7 years (Elkind 1981)
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Introduction • 17 Because of the difficulty experienced by injured workers in recovering under the common law, states passed a variety of employer liability laws that sought to limit the application or eliminate one or more of the common-law defenses to liability or to invalidate employment contracts that relieved employers of any negligence (Fishback 1987)
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18 • Compensating Injured Railroad Workers Under FELA Since enacted in 1908, FELA has been modified considerably by judicial interpretation in addition to the foregoing congressional amendments. Most important, over the years, Supreme Court decisions have substantially reduced the standard for employers' negligence that employees have had to show under FELA.
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Introduction • 19 fault. However, the state programs differed markedly from each other in terms of the extent of coverage and the benefits provided.
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20 Compensating Injured Railroad Workers Under FELA Worker Coverage and Benefits The degree of worker coverage and the level of benefits are key sources of the dispute over FELA. Labor makes the case that FELA provides better coverage by permitting full economic recovery, including full replacement of actual wage losses and future earning potential, full medical costs and rehabilitation payments, and compensation for pain and suffering.
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Introduction • 21 ing the claims process and legal costs accrue in the negotiation and settlement process and for litigation when negotiation is not successful. The AAR reports that $288 million was spent for administrative costs and legal fees in 1991.
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22 Compensating Injured Railroad Workers Under FELA FELA provides a strong incentive to hold railroads accountable for the safety of their operations. They argue that the large awards available to workers under FELA act as strong inducements to eliminate unsafe conditions, to avoid violations of federal safety laws, and to invest in safety.
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Introduction • 23 The 1.5 million excludes drivers and delivery persons for private concerns, which total roughly 2.1 million workers (Smith 1993, 61)
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24 • Compensating Injured Railroad Workers Under FELA REFERENCES ABBREVIATIONS AAR Association of American Railroads APTA American Public Transit Association GAO General Accounting Office ICC Interstate Commerce Commission NCSWCL National Commission on State Workmen's Compensation Laws NRPC National Railroad Passenger Corporation AAR.
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Introduction • 25 Tidd, J., and D Saphire.
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2 Overall Context for Compensation of Injured Workers Neither the benefits attainable under the Federal Employers' Liability Act of 1908 (FELA) nor those of no-fault injury compensation systems exist in isolation from other workplace benefits.
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TABLE 2-1 Potential Sources of Benefits for Injured Workers: FELA Compared with Workers' Compensation BENEFIT FELA WORKERS' COMPENSATION (WC) Medical treatment Travelers' Medical Insurance Plan Workers' compensation medical (100 percent coverage)
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28 • Compensating Injured Railroad Workers Under FELA successful in negotiation or trial, there are still other benefits available to compensate some of the losses. These benefits are also available to cover losses while the injured worker is waiting for a FELA settlement.
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Overall Context for Compensation of Injured Workers • 29 However, for most workers' compensation systems, the costs of on-thejob injuries are covered in the premiums for workers' compensation, which are separate from regular health insurance premiums. For the railroad industry, the cost of on-the-job injury has been incorporated into the basic health insurance coverage, which is not a requirement of the FELA statute.
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30 Compensating Injured Railroad Workers Under FELA form of a set number of days per year or a general wage continuation policy, the goal is to maintain wage income during the period of sickness. Some employers do not offer any sick-leave benefits; if employees do not work, they do not get paid.
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Overall Context for Compensation of Injured Workers • 31 thermore, the sickness benefits that an employee receives, at least those provided by the RRB, must be paid back if a settlement is received from the railroad that covers the lost wages. "The amount recoverable or withheld in such cases cannot exceed the net amount of the damages or settlement after medical and legal expenses have been deducted" (RRB 1992, 117)
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32 • Compensating Injured Railroad Workers Under FELA Long-Term Disability Benefits Long-term disability benefits are provided to railroad workers by the RRB for on-the-job injuries without regard to negligence just as they are for non-work-related disability. These RRB long-term disability benefits are similar to social security disability benefits provided to workers covered by state workers' compensation systems.
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Overall Context for Compensation of Injured Workers • 33 much higher than the amount for combined sickness and short-term disability described earlier. Furthermore, "the Tier I portion may, under certain circumstances, be reduced for receipt of workers' compensation or public disability benefits" (RRB 1992, 36)
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34 • Compensating Injured Railroad Workers Under FELA encouraging negotiations. Therefore, the railroad employer concluded that the program was too costly and reduced the eligible period for wage continuation to 3 months.
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Overall Context for Compensation of Injured Workers • 35 Sickness Benefits Many employers offer sick-leave or salary continuation programs through which the employees continue to receive their normal wages, up to some limit, while they are sick or recovering from an injury. The limit may be based on the number of sick-leave days accrued by the employee and unused or, in the case of salary continuation, there may be a limit to the total number of days per occurrence.
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36 • Compensating Injured Railroad Workers Under FELA Short-Term and Long-Term Disability Benefits Short-term disability insurance may be available to employees through their employer. The costs may be borne by the employer, the employee, or both.
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Overall Context for Compensation of Injured Workers • 37 17.5 percent, 3.4 percent, and 12.55 percent, respectively, with a total average rate of about 33 percent.
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3 Criteria for Analysis of Compensation of Injured Workers The purpose of this chapter is to present the assessment criteria used to guide the study committee's examination of the compensation process under the Federal Employers' Liability Act of 1908 (FELA) and its comparison with workers' compensation systems (as reported in Chapters 4 through 6)
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Criteria for Analysis of Compensation of Injured Workers • 39 or her old job or to work at all may be affected. Any injury compensation system must address both temporary and permanent effects of injury.
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40 Compensating Injured Railroad Workers Under FELA FIGURE 3-1 IOM model of disability (IOM 1991)
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Criteria for Analysis of Compensation of Injured Workers • 41 effects manifested in the performance or performance capacity of the person as a whole. An example of a functional limitation is the inability to lift a 25-pound box and carry it 25 feet.
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42 • Compensating Injured Railroad Workers Under FELA pathology will lead to an impairment, a functional limitation, or a disability or decrease that risk, independent of the severity of the injury itself. The IOM model shows these factors -- environment, biology, and behavior -- interacting with each step in the disabling process.
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Criteria for Analysis of Compensation of Injured Workers • 43 The role of behavior is particularly important in a fault-based system such as FELA in which negligence by the employee or the employer can affect the level of injury compensation. To the extent that workers engage in unsafe behavior, they may be found to be partially responsible for their subsequent injury and therefore entitled to a lesser benefit from their employer.
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44 • Compensating Injured Railroad Workers Under FELA Impairment evaluations are critical in the first two approaches. These evaluations attempt to measure the remaining impairment to the body after maximum medical improvement is attained.
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Criteria for Analysis of Compensation of Injured Workers • 45 Employees' Perspective In the broadest sense, workers are concerned with the net benefits that they receive from an injury compensation system. That is, they would like to maximize the medical, wage, and rehabilitation benefits they receive while minimizing the costs they bear for securing those benefits.
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46 • Compensating Injured Railroad Workers Under FELA wage compensation may vary. As discussed earlier, permanent disabilities may partially limit the worker's wage-earning capability or totally eliminate it.
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Criteria for Analysis of Compensation of Injured Workers • 47 for those lost or revising job procedures to match the worker's capabilities that are unaffected by the functional limitation. The second approach is to retrain the worker for alternative employment.
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48 • Compensating Injured Railroad Workers Under FELA the public interest. Furthermore, many states offer competitive or exclusive state funds to insure against workplace injuries.
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Criteria for Analysis of Compensation of Injured Workers • 49 not only actual monetary or out-of-pocket costs, but also the loss from the foregone output and societal contributions of disabled workers and such subjective costs as the pain and suffering of injured individuals and the losses to their families. Trade-Offs Among Goals Various types of trade-offs are likely to be made in the development of an injury compensation system.
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50 • Compensating Injured Railroad Workers Under FELA Concepts of Liability Who is liable when a worker is injured? That is, who bears the responsibility for making the worker whole?
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Criteria for Analysis of Compensation of Injured Workers • 51 advantage in imposing liability if the defendant is not negligent and has no cost-beneficial precautions available. Under a strict liability regime, the primary economic incentive for adopting precautions is likely to be the same as under a negligence liability standard.
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52 • Compensating Injured Railroad Workers Under FELA better able to purchase insurance than the individual. Depending on assumptions about the incidence of the loss, the employer may redistribute it among customers, shareholders, or all employees.
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Criteria for Analysis of Compen.sation of Injured Workers • 53 compensation programs acknowledge this and recognize the appropriateness of dividing liability. Rather than allocate and divide negligence on a.case-by-case basis, workers' compensation divides liability at a more general level.
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54 Compensating Injured Railroad Workers Under FELA not depends on the perspectives of the parties involved. The concept of efficiency, however, is much more uniformly accepted.
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Criteria for Analysis of Compensation of Injured Workers • 55 delays in establishing the right to or the amount of a benefit may force the worker to borrow or use savings to cover lost income and other injury expenses. Assessment of Costs Direct and Indirect Costs The costs of providing workers' compensation can be divided between the direct cost of the benefits provided and the indirect cost of administering the system.
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56 • Compensating Injured Railroad Workers Under FELA low levels, the likelihood of fraudulent claims will be low and workers are likely to return to work as quickly as possible to avoid financial losses. In this instance, the cost of investigating, processing, and litigating claims may be kept relatively low through simple forms and procedures, near automatic approval of claims, and standard, if low, benefit payments.
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Criteria for Analysis of Compensation of Injured Workers • 57 Safety Safety incentives promote the societal goals of avoiding losses both to individuals and to the output of goods and services. All costs associated with an injury can be avoided if the injury itself is avoided.
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58 • Compensating Injured Railroad Workers Under FELA Bethlehem & New England R., 939 F 2d 128 (3 Cir.
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........................... Railroad Injury Compensation Process Some elements of the railroad injury compensation process are independent of the provisions of the Federal Employers' Liability Act of 1908 (FELA)
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60 Compensating Injured Railroad Workers Under FELA INJURY File Report/Start Claim No 4~ MEDICAL TREATMENT Lost I ___rTim ________________ Medical Benefit (AR) RETURN TO WORK Lost Time INCOME MAINTENANCE Sickness Benefits (RRB)
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Railroad Injury Compensation Process • 61 tation, compensation for future earning potential lost because of a lingering impairment, and compensation for pain and suffering. As noted in Chapter 3, the courts have created a liberal liability standard for the FELA statute.
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62 • Compensating Injured Railroad Workers Under FELA Although the elements of the FELA process follow essentially the same basic pattern among all the railroads, there is some variation. The following description of the FELA process is based on discussions concerning their approaches with a number of railroads, including the Burlington Northern, CSX Transportation, Norfolk Southern, and Southern Pacific.
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Railroad Injury Compensation Process • 63 and care. From the railroads' standpoint, a speedy rehabilitation and return of the employee to work is desirable.
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64 • Compensating Injured Railroad Workers Under FELA the out-of-work period and while a claim is being negotiated. These include sickness benefits from the Railroad Retirement Board, private short-term disability policies that some railroads and unions offer, long-term disability benefits, cash advances, and railroad wage continuation programs.
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Railroad Injury Compensation Process • 65 Wage Continuation One union official noted that one of the biggest problems in on-the-job injury compensation from the worker's standpoint is the length of time for recovery and the often-resulting need to borrow money. To remedy that problem, some railroads, including the Burlington Northern, CSX Transportation, and Southern Pacific, have voluntarily instituted wage continuation programs for their employees instead of providing cash advances.
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66 • Compensating Injured Railroad Workers Under FELA levels of negligence of each party. The requirement of this railroad's wage continuation program for cooperation in the investigation of the accident and injury reflects this concern.
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Railroad Injury Compensation Process • 67 one railroad estimates that it makes the first offer to the employee in about 95 percent of the cases because it knows from experience what such cases are worth. For minor injuries and little lost time, FELA functions administratively almost as workers' compensation does.
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68 • Compensating Injured Railroad Workers Under FELA Litigation The majority of claims (an average of 70 percent from 1987 through 1991) are settled directly with the employee; another 10 percent are settled after the employee has retained an attorney but before a suit is filed.
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Railroad Injury Compensation Process • 69 Whether there actually is any mitigation of the employer's liability is an important point in assessing the FELA process. Full recovery may result in an unfair burden on employers if the sharing of the burden for losses is not allocated by findings of comparative negligence.
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70 • Compensating Injured Railroad Workers Under FELA FELA claims by the railroads contacted. The Association of American Railroads (AAR)
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Railroad Injury Compensation Process • 71 Safety Supporters of FELA maintain that railroad jobs are relatively dangerous and that FELA is necessary to provide strong safety incentives. Accident and injury statistics indicate that although railroading is more dangerous than many industries, it is by no means the most dangerous industry.
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72 • Compensating Injured Railroad Workers Under FELA sense, FELA is potentially quite equitable for all parties. As noted earlier, whether FELA is actually equitable is difficult to determine.
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Railroad Injury Compensation Process • 73 period for claims that were closed with an indemnity payment. Because the railroads were reducing their work force throughout the 1980s, some of these workers' jobs were likely eliminated, and the settlements therefore may have included elements of severance inducements as well as injury compensation.
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74 • Compensating Injured Railroad Workers Under FELA TABLE 4-1 FELA Claims Closed for All Class I Railroads, 1987-1991 1987 1988 1989 1990 1991 No. of Claims Injury NA NA 18,074 17,398 15,324 Illness 6,283 16,544 16,949 Asbestos NA NA 734 651 751 Hearing loss NA NA 5,549 15,893 16,190 Total 20,722 20,280 24,357 33,942 32,273 Claims per 100 Employees Injury 6.9 6.8 6.3 Illness 2.4 6.5 7.0 Asbestos 0.3 0.3 0.3 Hearing loss 2.1 6.2 6.7 All 7.6 7.6 9.3 13.3 13.3 Railroad employment 273,429 268,208 261,063 254,661 241,860 Claims by Settlement Status Direct 14,213 13,717 17,774 24,845 20,668 Represented 1,868 2,084 1,830 3,368 5,153 Litigated 4,641 4,479 4,753 5,729 6,452 Total 20,722 20,280 24,357 33,942 32,273 NOTE: Injury claims include death claims.
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Railroad Injury Compensation Process • 75 TABLE 4-2 FELA Payments for Closed Claims for All Class I Railroads, 1987-1991 1987 1988 1989 1990 1991 Payments ($ millions) Injury 647 NA 728 761 758 Illness 40 NA 61 116 153 Total 686 768 789 877 911 Actual and Constant-Dollar Payments per Claim Actual ($)
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76 • Compensating Injured Railroad Workers Under FELA Tort settlements, like workers' compensation payments, are not subject to income taxes or other taxes.'0 These payments are not affected, therefore, by changes in tax laws and need not be adjusted for them. Administrative Costs Medical and administrative cost data are collected by the AAR during an annual survey of its member railroads, and these data are available for 1990 to 1992.
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TABLE 4-3 FELA Litigated Claims Experience for All Class I Railroads, 1987-1991 1987 1988 1989 1990 1991 TOTAL Claims Total claims closed 20,722 20,280 24,357 33,942 32,273 131,574 Litigated claims closed 4,641 4,479 4,753 5,729 6,452 26,054 Litigated claims tried 223 196 200 208 307 1,134 Litigated claims as percent of total claims 22.4 22.1 19.5 16.9 20.0 19.8 Claims tried as percent of litigated claims 4.8 4.4 4.2 3.6 4.8 4.4 Claims tried as percent of total claims 1.1 0.97 0.82 0.61 0.95 0.86 Verdicts Litigated claims tried 223 196 200 208 307 1,134 Defense verdicts 67 59 46 65 62 299 Verdicts in railroad's favor 40 38 42 35 31 186 Plaintiffs' verdicts 116 99 112 108 214 649 Defense verdicts as percent of total 30 30 23 31 20 26 Verdicts in railroad's favor as percent of total 18 19 21 17 10 16 Plaintiffs' verdicts as percent of total 52 51 56 52 70 57 Defense verdicts as percent of total claims closed 0.32 0.29 0.19 0.19 0.19 0.23 NOTE: Data are for all Class I railroads except as follows: one major railroad did not participate in 1987, three did not in 1988, and one did not in 1989. "Verdicts in railroad's favor" are those that are equal to or less than the railroad's final settlment offer.
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78 • Compensating Injured Railroad Workers Under FELA SUMMARY FELA has led to the development of a mixed administrative and judicial process for compensating workers in the railroad industry. Coverage for the injured worker is broad, including all types of losses and providing the potential for full recovery of all losses, both monetary and nonmonetary.
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Railroad Injury Compensation Process • 79 railroad industry forcefully argues for an effective injury compensation system. Besides burden shifting, another concern about high benefits to injured workers is that benefit increases may increase the number of injuries, or at least claims of injuries, and their duration.
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80 • Compensating Injured Railroad Workers Under FELA REFERENCES ABBREVIATION GAO General Accounting Office Blount, J
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5 ............................ State and Federal Workers' Compensation Programs Workers' compensation programs, though quite varied in practice, share certain goals.
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82 • Compensating Injured Railroad Workers Under FELA portray the general features that they share without misrepresenting the unique aspects of each program; the discussion in this chapter errs on the side of generality. Figure 5-1 is a flowchart of the basic injury compensation process under workers' compensation, which includes benefits arising from workers' compensation systems and those complementary to them.
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State and Federal Workers' Compensation Programs • 83 After a brief overview of program administration, an explanation is given of how workers' compensation provided for direct employers' liability for medical coverage and a substantial portion of lost wages. Subsequently, the benefits available under workers' compensation for medical expenses, lost wages, rehabilitation, and survivors of those who die on the job are discussed.
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84 Compensating Injured Railroad Workers Under FELA employees of state and local government. (Police and fire fighters receive special treatment in many jurisdictions.)
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State and Federal Workers' Compensation Programs • 85 compensation insurance from private carriers. FECA made payments on about 255,000 cases in 1991 for a total cost of about $1.6 billion.
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86 • Compensating Injured Railroad Workers Under FELA some defect contributed to the injury or because of exposure to a hazardous material used in the construction of the equipment. All states except New York protect the employer from being a party to this suit, even in the case of employer negligence in the purchase or use of the equipment.
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State and Federal Workers' Compen.sation Programs • 87 injuries and heart disease, which are more complex and may have occupational and nonoccupational components. The occupational component of a back injury, for example, may be difficult to prove if the employee had a preexisting condition and the injury was not witnessed or promptly reported.
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88 • Compensating Injured Railroad Workers Under FELA Although the two-thirds rule of thumb is now in place in most programs, each jurisdiction has other provisions that affect total payments. Each program has a maximum and often a minimum weekly payment that can be made.
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State and Federal Workers' Compensation Program.s • 89 an obvious injury, a clear period of disability, and an early return to work" (Welch 1989, 40)
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90 • Compensating Injured Railroad Workers Under FELA 20 a) -a E 35 z Dollars FIGURE 5-2 Maximum weekly payments for temporary total disability in state workers' compensation programs, 1991 (DOL 1992)
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State and Federal Workers' Compensation Programs • 91 benefit based on the difference between his or her wages before and after the injury. Permanent Disability Permanent disability payments are paid for worker injuries that result in a lifetime disability.
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92 • Compensating Injured Railroad Workers Under FELA average payment for "major" cases of permanent partial disability was about $65,000 in 1988; the average benefit for "minor" cases was $10,242 (Nelson 1992)
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State and Federal Workers' Compensation Progranu • 93 judgment is made about the degree of economic loss for some injuries if any motor function remains after the injury has healed. A severe injury that leaves some use of the arm might be treated as a scheduled injury with a payment of some percentage of the maximum or as an unscheduled injury.
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TABLE 5-1 Maximum Benefits and Number of Weeks for Selected Permanent Partial Disabilities, 1991 (DOL 1992, Table 9a)
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NewJerseyt 128700 330 78,032 245 122,850 315 65,782 230 49660 225 38,200 200 6,540 60 New Mexico 61,460 200 38,413 125 61,460 200 35,340 115 39,949 130 46,095 150 12,292 40 New York 109,200 312 85,400 244 100,800 288 71,750 205 56,000 160 52,500 150 21,000 60 North 102,960 240 85,800 200 85,800 200 61,776 144 51,480 120 64,350 150 30,030 70 Carolina North Dakota' 83,500 250 66,800 200 78,156 234 50,100 150 50,100 150 66,800 200 16,700 50 Ohio 99,675 225 77,525 175 88,600 200 66,450 150 55,375 125 55,375 125 11,075 25 Oklahoma 46,250 250 37,000 200 46,250 250 37,000 200 37,000 200 55,500 300 18,500 100 Oregon' - - - - - - - - - - - - - - Pennsylvania 186,550 410 161,525 355 186,550 410 113,750 250 125,125 275 118,300 260 27,300 60 Puerto Rico 12,000 300 12,000 200 12,000 300 11,375 175 h - 12,000 200 3,250 50 Rhode Island 28,080 312 21,960 244 28,080 312 18,450 205 14,400 160 18,000 200 5,400 60 South 83,560 220 70.267 185 74,065 195 53,175 140 53,175 140 62,670 165 30,386 80 Carolina South Dakota 61,600 200 46,200 150 49,280 160 38,500 125 46,200 150 46,200 150 -' - Tennessee 58,800 200 44,100 150 58,800 200 36,750 125 29,400 100 44,100 150 -, - Texas 61,400 200 46,050 150 61,400 200 38,375 125 30.700 100 46,050 150 -' - Utah 47,124 187 42,336 168 31,500 125 22,176 88 30,240 120 25,200 100 -' - Vermont 127,280 215 103,600 175 127,280 215 103,600 175 74,000 125 106,560 180 30,784 52 Virgin Islands 59,620 220 48,780 180 48,780 180 32,520 120 52,845 195 48,780 180 32,520 120 Virginia 83,600 200 62,700 150 73,150 175 52,250 125 41,800 100 41,800 100 20,900 50 Washington" 54,000 - 48,600 - 54,000 - 37,800 - 21,600 - 43,200 - 7,200 - West Virginia" - - - - - - - - - - - - - - Wisconsin 72,000 500 57,600 400 72,000 500 36.000 250 39,600 275 31,104 216 5,184 36 Wyoming 39,200 150 31,882 122 35,280 135 26,133 100 24,565 94 20,906 80 10,453 40 "Ratings for compensation purposes are determined as a percentage of permanent total disability (Alaska, California, Idaho, Kentucky, Maine, Minnesota, Montana, Nevada, and West Virginia)
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From page 107... ...
96 • Compensating Injured Railroad Workers Under FELA an inherently difficult assessment. Wisconsin, for example, whose program is often cited as a model with a low rate of litigation for its overall program, uses the loss of wage-earning capacity in determining the benefits for unscheduled permanent partial disability.
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From page 109... ...
98 • Compensating Injured Railroad Workers Under FELA 16 14 C 0 . 10 - 8 Cb S b ' Dollars FIGURE 5-5 Maximum payments for permanent partial disability for unscheduled injuries, 1991 (DOL 1992)
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From page 110... ...
State and Federal Workers' Compensation Progranas • 99 That is, injured employees who return to work will be provided with two-thirds to three-fourths of the difference between their wages before and after injury (the larger payment depends on whether the injured worker has dependents)
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From page 111... ...
100 • Compensating Injured Railroad Workers Under FELA store injured workers to full function or to the highest level of function possible. The goal of rehabilitation has more recently become the return of the worker to his or her job at minimum cost (Berkowitz 1991)
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From page 112... ...
State and Federal Workers' Compensation Programs • 101 Treating physicians stress that medical rehabilitation should begin as early as possible in order to achieve the maximum possible gains (Nelson 1988)
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From page 113... ...
102 Compensating Injured Railroad Workers Under FELA determination and refer the client for services, usually with a private provider. All rehabilitation is paid for by FECA and the employee receives full TTD payments during medical rehabilitation plus $200 per month during vocational rehabilitation.
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From page 114... ...
State and Federal Workers' Compensation Program.s • 103 dependent children, benefits typically continue until age 18. Many jurisdictions extend benefits to children until they reach age 22 or 23 if they are enrolled in school full time.
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From page 115... ...
104 • Compensating Injured Railroad Workers Under FELA State Programs Almost all disputed cases are resolved through an administrative process. Appeals beyond the administrative level are possible but rare.
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From page 116... ...
TABLE 5-2 Measures of Dispute Resolution from Selected States STATE YEAR INDEMNITY CLAIMS HEARING REQUESTS (%)
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From page 117... ...
106 • Compensating Injured Railroad Workers Under FELA before hearings are required (Ballantyne and Telles 1992a)
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From page 118... ...
State and Federal Workers' Compensation Programs • 107 Minnesota Formal hearings are requested in about 13 percent of lost-time claims in Minnesota, but few are required (Ballantyne and Telles 1991b)
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From page 119... ...
108 • Compensating Injured Railroad Workers Under FELA Degree of Litigiousness These case studies suggest that most claims are uncontested, but there is considerable variation across states. It appears from the data presented above that about 90 percent of lost-time cases in Wisconsin proceed without controversy, but this proportion drops to 70 percent in Minnesota and to 77 percent in Georgia.
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From page 120... ...
State and Federal Workers' Compensation Program.s • 109 an attorney. In California 98 percent of mental stress claims are litigated (Barth and Telles 1992)
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From page 121... ...
110 • Compensating Injured Railroad Workers Under FELA raises a concern about the share of total compensation payments that is taken up in attorney costs. Almost all jurisdictions regulate attorney fees for claimants in some way, but the regulations vary considerably.
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From page 122... ...
State and Federal Workers' Compensation Programs • 111 litigation costs per disputed case were $7,030 in 1991, a 188 percent increase over the $2,500 cost in 1981 (Barth and Telles 1992)
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From page 123... ...
112 • Compensating Injured Railroad Workers Under FELA question of which jurisdiction provides coverage is somewhat complicated, but in interstate trucking a worker is usually covered in the state in which he or she is domiciled. The carrier, however, must have insurance in all jurisdictions in which it operates, because in most states the injured worker has the right to file for benefits in the state where the injury occurred.
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From page 124... ...
State and Federal Workers' Compensation Programs • 113 has been interpreted as two-thirds. In practice, however, before the 1980s, many state programs did not meet the two-thirds goal.
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From page 125... ...
114 • Compensating Injured Railroad Workers Under FELA Georgia Mississippi Arkansas Oklahoma Nebraska Kansas Tennessee Louisiana New Mexico South Dakota Delaware Arizona Idaho Indiana North Dakota California Montana New York Utah South Carolina Kentucky Alabama Wyoming West Virginia Colorado Florida New Jersey Virginia Nevada Rhode Island North Carolina Oregon Missouri Washington H awn ii Texas Michigan Ohio Minnesota Wisconsin Pennsylvania Maryland Massachusetts Maine Vermont D.C. New Hampshire Illinois Alaska Iowa Connecticut Two Thirds / 20 40 60 80 100 Percentage FIGURE 5-6 Percentage of average railroad worker weekly wage covered under temporary total disability, 1991.
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From page 126... ...
State and Federal Workers' Compensation Programs • 115 Workers' compensation was also meant to reduce the litigiousness of the tort system by an administrative delivery of needed benefits. The administrative system appears to work well for the majority of workers' compensation claims, which tend to be for relatively minor injuries that involve only medical expenses or a relatively short absence from work.
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From page 127... ...
116 • Compensating Injured Railroad Workers Under FELA NOTES This section draws heavily from the work by Welch (1989)
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From page 128... ...
Stale and Federal Workers' Compensation Programs • 117 15. A current problem in workers' compensation is one concerning the "choice of law," wherein claims can be filed in several jurisdictions.
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From page 129... ...
118 • Compensating Injured Railroad Workers Under FELA Boden, L., and C Fleishman.
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From page 130... ...
Comparison of FELA Process and Workers' Compensation Systems Injury compensation under the Federal Employer's Liability Act of 1908 (FELA) results in higher benefits than those of the alternative workers' compensation systems.
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From page 131... ...
120 • Compensating Injured Railroad Workers Under FELA first of four comparisons, these payments are assessed against those under workers' compensation. Next, detailed data from one railroad on benefit payments by injured body part are compared with similar data from a national sample provided by the National Council on Compensation Insurance (NCCI)
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From page 132... ...
Comparison of FELA and Workers' Compensation • 121 em, and Union Pacific. Although data from only four railroads are used, these railroads represent 60 percent of Class I railroad employees and over half of all freight railroad employees.
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From page 133... ...
122 • Compensating Injured Railroad Workers Under FELA medical payments only and those for which an indemnity payment is also made. Medical Payments Payments per claim for claims settled with medical payments only have trended upward from 1987 to 1991, with a downturn in 1991.
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From page 134... ...
TABLE 6-1 Medical Payments per Claim for Two Railroads TYPE OF CLAIM 1987 1988 1989 1990 1991 Claims settled with medical payments only ($) Direct 118 128 129 145 147 Represented 1,145 741 1,468 639 135 Litigated 1,188 1,355 2,663 2,347 1,571 Total 142 160 180 233 187 Total (constant dollars)
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From page 135... ...
124 • Compensating Injured Railroad Workers Under FELA 8,000 E co 6,000 ci)
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From page 136... ...
TABLE 6-2 Indemnity Payments per Claim for Four Railroads TYPE OF CLAIM 1987 1988 1989 1990 1991 Claims settled with indemnity payments ($) Direct 15,176 18,210 20,243 22,887 24,594 Represented 81,215 72,306 85,410 81,122 83,379 Litigated 128,771 134,220 145,002 156,742 166,577 Total 37,900 42,055 43,941 49,008 53,770 Total (constant dollars)
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From page 137... ...
126 • Compensating Injured Railroad Workers Under FELA 140,000 E 120,000 0 100,000 a- 22 80,000 Cz CO 40,000 20,000 0 1 2 3 4 5 6 8 10 12 14 16 18 20 22 24 26 28 31 34 37 41 45>49 Months Between Injury and Settlement Direct ± Represented ' Litigated FIGURE 6-2 Constant-dollar indemnity payments per claim by time to settlement for claims with indemnity payments. are comparable with those of the New York and Wisconsin workers' compensation programs and significantly lower than those of Pennsylvania.
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From page 138... ...
Comparison of FELA and Workers' Compensation • 127 TABLE 6-3 Payments per Claim to Injured Workers: Comparison Between Selected Railroads and Selected State Workers' Compensation TYPE OF CLAIM 1986 1987 1988 Claims settled with medical payments only ($) Two railroads 152 142 160 New York 184 204 228 Wisconsin 167 185 NA Pennsylvania 223 249 NA Claims settled with indemnity payments ($)
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From page 139... ...
TABLE 6-4 Payment per Claim by Injury Severity for Selected Workers' Compensation Systems Low HIGH LHWCA AVERAGE PAYMENT ($)
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From page 140... ...
Comparison of FELA and Workers' Compensation • 129 indemnity payments, the railroad medical payments per claim of $3,348 v are again closer to the lowest state amount than the average and are only about 40 percent and 30 percent of the LHWCA and high state amounts, respectively. It is not possible to make exact comparisons for indemnity payments.
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From page 141... ...
130 • Compensating Injured Railroad Workers Under FELA On the basis of these data, FELA and workers' compensation payments appear more comparable than in the previous section. Total payments per claim average only about 25 percent more for FELA than for the NCCI sample (Table 6-5)
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From page 142... ...
Comparison of FELA and Workers' Compensation • 131 noted in Chapter 5, the cost share of medical benefit payments in workers' compensation systems is typically in the range of 30 to 40 percent,5 and the medical shares for the NCCI sample do range between 31 and 36 percent of the benefit payments. However, the medical payment per claim for 1989 is nearly $18,000 (Table 6-6)
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From page 143... ...
TABLE 6-6 Comparison of NCCI Payment Data with Data from One Class I Railroad: Claims Settled with Indemnity TYPE OF CLAIM 1987 1988 1989 1990 1991 Railroad Number of claims 1,428 1,604 1,322 1,148 1,038 Indemnity payment per claim ($) 42,083 58,216 66,591 75,990 85,613 Medical payment per claim ($)
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From page 144... ...
Comparison of FELA and Workers' Compensation • 133 The benefit levels by type of injury reported by NCCI show the relative levels of Michigan and LHWCA benefits among workers' compensation systems (NCCI 1992, 292)
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From page 145... ...
134 • Compensating Injured Railroad Workers Under FELA assumptions used in the Washington State estimates concerning the severity of the injuries were made available to the estimators for the other two systems, who followed the first estimator's assumptions fairly closely and only differed where the compensation approach of their system required it. Nevertheless, considerable uncertainty exists concerning the seriousness of the injuries and the resulting implications for scheduled payments for impairment, potential effects on wage-earning capacity, and likelihood of being disabled for work.
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From page 146... ...
Companson of FELA and Workers' Compensation • 135 of the categories, the percentage of the FELA payment covered by any system is less than 40 percent. Overall, the FELA indemnity benefits ranged from about 1.5 to 11 times the workers' compensation estimates (Table 6-7)
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From page 147... ...
TABLE 6-7 Case Study Comparisons of Actual FELA Indemnity Settlements with Estimates for Selected Workers' Compensation Systems FELA LHWCA MICHIGAN WASHINGTON Return-to-work (RTW) claims with fewer than 90 work days lost (N = 16)
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From page 148... ...
Comparison of FELA and Workers' Compensation • 137 without some connection to job activity, such as unusual strain. Under LHWCA, proof of this type is not necessary and the claims would be compensable.
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From page 149... ...
138 • Compensating Injured Railroad Workers Under FELA from the time of accident. For the years after 1988, many claims and lawsuits are still unsettled.
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From page 150... ...
Comparison of FELA and Workers' Compensation • 139 main open for an extended time as well. The difference between the systems is that with workers' compensation, benefits are paid in the interim, whereas with FELA they are not.7 An extended time to settle or close a claim is therefore not unique to FELA, nor is it necessarily undesirable.
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From page 151... ...
1,400 1,200 1,000 800 3 600 400 200 0 1 2 3 4 5 6 8 10 12 14 16 18 20 22 24 26 28 31 34 37 41 45>49 Months Between Injury and Settlement ± 1988 1989 199O 1991 1987 FIGURE 6-3 Settlement pattern for direct claims: Burlington Northern, CSX Transportation, Norfolk Southern, and Union Pcific.
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From page 152... ...
Comparison of FELA and Workers' Compensation • 141 Represented Claims Represented claims for the four railroads also reveal a fairly stable relationship during this period except for the higher number of extendedsettlement claims in 1987 (Figure 6-5)
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From page 154... ...
Comparison of FELA and Workers' Compensation • 143 100 Cl)
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From page 155... ...
144 • Compensating Injured Railroad Workers Under FELA employee's standpoint, there may not be large returns to protracted settlement negotiations. On the other hand, many of the settlements might have been lower absent the extended negotiation.
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From page 156... ...
Comparison of FELA and Workers' Compensation • 145 counsel was $10,727, which is nearly twice its level in 1987. This is a faster increase than has occurred in the indemnity payment per claim of litigated settlements.
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From page 157... ...
146 • Compensating Injured Railroad Workers Under FELA process. Because FELA is a tort process, one would expect a certain, perhaps fairly consistent, number of FELA claims to be litigated, whether a trial occurs or not.
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From page 158... ...
Compari.son of FELA and Workers' Compensation • 147 railroad industry, compensation for the full value of wage loss without caps, recoveries for impairments without caps, and compensation for pain and suffering. Significant transactions costs accompany the process for securing these benefits, including substantial attorneys' costs for both railroads and employees and significant delays in receiving benefits.
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From page 159... ...
148 • Compensating Injured Railroad Workers Under FELA "Thus it cost $8,649 to provide $10,868 in benefits -- or 80 cents to deliver one dollar in benefits awarded in a litigated claim in 1992" (CWCI 1993)
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From page 160... ...
7 . S SSS•S••• SSSSS••IS•S•SS••• Modal Competition and Federal Appropriations If the cost to railroads and transit agencies for injury compensation under the Federal Employers' Liability Act of 1908 (FELA)
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From page 161... ...
150 • Compensating Injured Railroad Workers Under FELA such offsetting wage and benefit demands were effective) reducing or eliminating the savings.
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From page 162... ...
Modal Competition and Federal Appropriations • 151 study to study, although most estimates appear to fall somewhere between about -- 0.25 and -- 2.5. Table 7-1 shows estimates from four representative studies.
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From page 163... ...
TABLE 7-1 Freight Rate Elasticity Estimates (Oum 1979; Winston 1981; Inaba and Wallace 1989; Wilson 1984) E&sTIcrn' AUTHOR DATA COMMODITY TRUCK RAIL Oum Canadian waybill sample, 1970 Lumber -- 0.5 -- 0.5 (aggregate)
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From page 164... ...
TABLE 7-2 Demand Elasticities Synthesized from 11 Studies (Oum et al.
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From page 165... ...
154 • Compensating Injured Railroad Workers Under FELA savings from changes to FELA was about $1.2 billion in 1991. Total freight revenue in 1991 was $26.9 billion.
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From page 166... ...
TABLE 7-3 Potential Changes in Rail Market Share Using All Cost Savings To Reduce Rates CHANGE IN 1991 RAIL COSTS PERCENTAGE SAVINGS MILLIONS PERCENTAGE IN FELA COSTS OF DOLLARS OF REVENUE CHANGE IN 1991 RAIL TRAFFIC LEVELS (TON-MI BILLIONS)
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From page 167... ...
156 • Compensating Injured Railroad Workers Under FELA TABLE 7-4 Spending Authority for Relevant Federal Transit Administration and Federal Railroad Administration Accounts MILLIONS OF CURRENT D0LLARsa 1993 1992 1991 1990 1989 Federal Transit Administration Formula grants 1,700 1,520 1,605 1,625 1,605 Operating cap 802 802 802 805 805 Discretionary capital grants 1,725 1,910 1,400 1,282 1,250 Total FTAb 3,800 3,775 3,259 3,193 3,265 Federal Railroad Administration (Amtrak) Operating grants 331 331 343 NA NA Retirement and 146 150 150 NA NA unemployment Total operating 477 481 493 520 554 Capital' 165 175 132 85 30 Total Amtrak 642 656 625 605 584 NECIPd (capital)
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From page 168... ...
Modal Competition and Federal Appropriations • 157 likely to be confined to savings in transactions cost. The study committee did not have estimates of these costs for transit systems, but it is suspected that the savings would be small compared with overall operating expenses.
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From page 169... ...
158 • Compensating Injured Railroad Workers Under FELA of FELA cost savings and the resulting percentage savings in appropriations that might result.
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From page 171... ...
160 • Compensating Injured Railroad Workers Under FELA Thus, comparisons between the FELA process and state workers' compensation systems must be viewed in the context of overall workplace benefits. Moreover, because these other benefits may be provided through collective bargaining agreements, changes in the injury compensation system that result in reduced levels of statutory benefits are likely to induce a response in the next round of collective bargaining that might partially offset the changes to workers' benefits and employers' costs.
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From page 172... ...
Findings and Conclusions • 161 losses, the speed with which the losses are compensated, the certainty with which they are compensated, and who bears the costs of compensation. The specific findings concerning these criteria are presented next, but a final caveat should be stated regarding these findings.
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From page 173... ...
162 • Compensating Injured Railroad Workers Under FELA injuries. Nevertheless, these formulas and schedules can vary significantly among states and some states do not use them.
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From page 174... ...
Findings and Conciwions • 163 such as FELA does not have to'compensate for nonmonetary losses. Ultimately, federal and state legislatures control what is compensated.
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From page 175... ...
164 • Compensating Injured Railroad Workers Under FELA approaches. These FELA benefits, however, may be substituting for other benefits or higher wages that would have been demanded by railroad workers in the absence of this injury compensation benefit.
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From page 176... ...
Findings and Conclusions • 165 tion systems do, because the injured worker could potentially be exposed not only to uncompensated nonmonetary losses (as in workers' compensation) but also to uncompensated monetary losses arising from the injury.
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From page 177... ...
166 • Compensating Injured Railroad Workers Under FELA market share or profitability may increase and federal appropriations for both Amtrak and railroad transit operations may decrease. To the extent that these savings are made through reductions in the net benefits received by injured railroad workers, however, changes in market share and federal appropriations may be reduced or may not persist.
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From page 178... ...
Findings and Conclusions • 167 ommendations about improvements to FELA, the consensus was that it would be wise if all changes to FELA were developed through negotiation. Regardless of what changes are made to FELA or what alternatives are proposed, reductions in the costs of providing injury compensation would come mainly from reduced benefits or from reduced transactions costs.
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From page 179... ...
APPENDIX A ......•• .............S........ Railroad Safety Major concerns of both proponents and opponents of FELA are the safety of the railroad industry and the effect that FELA has on safety.
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From page 180... ...
Railroad Safety • 169 the Federal Railroad Administration (FRA)
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From page 182... ...
Railroad Safety • 171 I- 0 50 ci)
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From page 184... ...
Railroad Safety • 173 TABLE A-i Average Employee Fatality and Injury Rates for Selected Railroads, 1987-1991 RAILROAD RATE RAILROAD RATE Employee Fatalities per Employee Fatalities per 100 Full-Time Workers Million Train-Miles Santa Fe 0.022 Norfolk Southern 0.102 Burlington Northern 0.019 CSX Transportation 0.091 Norfolk Southern 0.018 Southern Pacific 0.077 CSX Transportation 0.017 Santa Fe 0.077 Total without Amtrak 0.016 All railroads 0.075 All railroads 0.016 Total without Amtrak 0.075 Total with Amtrak 0.015 Total with Amtrak 0.073 Southern Pacific 0.015 Conrail 0.069 Union Pacific 0.012 Burlington Northern 0.068 Conrail 0.012 Amtrak 0.060 Amtrak 0.010 Union Pacific 0.049 Employee Injuries per Employee Injuries per 100 Full-Time Workers Million Train-Miles Burlington Northern 10.9 Conrail 39.3 Union Pacific 8.1 Amtrak 38.9 All railroads 7.6 Burlington Northern 38.3 Total without Amtrak 7.1 All railroads 36.4 Total with Amtrak 7.0 Union Pacific 33.3 Conrail 6.7 Total with Amtrak 33.1 Santa Fe 6.3 CSX Transportation 32.7 Amtrak 6.3 Total without Amtrak 32.6 CSX Transportation 6.1 Southern Pacific 27.9 Southern Pacific 5.5 Norfolk Southern 27.8 Norfolk Southern 4.9 Santa Fe 22.3 SOURCE: Data are from the Accident/Incident Bulletin published by the Office of Safety of the Federal Railroad Administration, U.S. Department of Transportation, for calendar years 1987 through 1991 (No.
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From page 185... ...
174 Compensating Injured Railroad Workers Under FELA have a somewhat better record than the industry as a whole. This is likely an artifact of averaging non-train-related injuries over the high levels of train-miles for the long-haul major carriers.
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From page 186... ...
TABLE A-2 Injury and Illness Cases and Lost-Workday Rates for Selected Industries and Transportation Modes, 1981-1990 AVERAGE AVERAGE INDUSTRY OR MODE NUMBER INDUSTRY OR MODE NUMBER Total Cases per 100 Lost-Workday Cases per Full-Time Workers 100 Full-Time Workers Construction 14.8 Trucking 8.3 Trucking 13.8 Air 7.8 Air 13.6 Water 7.1 Water 12.3 Construction 6.6 Agriculture 11.5 Agriculture 5.8 Manufacturing 11.5 Railroad 5.6 Local transit 9.4 Local transit 5.4 Mining 9.0 Transportation 5.1 Transportation 8.7 Manufacturing 5.0 Private industry 8.2 Mining 5.0 Railroad 8.0 Private industry 3.8 Retail trade 7.6 Wholesale trade 3.6 Wholesale trade 7.4 Retail trade 3.2 Services 5.3 Services 2.5 Pipeline? 3.6 Pipeline?
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From page 188... ...
Railroad Safety • 177 lost workdays per lost-workday case increase dramatically. The General Accounting Office (GAO)
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From page 189... ...
178 • Compensating Injured Railroad Workers Under FELA 40 a)
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From page 190... ...
Railroad Safety • 179 Underreporting of accidents ranged from 8.3 to 42.8 percent at three of the five railroads, and accident damage was also underreported in many cases. According to GAO, the level of damage in many of the reports was based on initial field estimates that were later revised upon closer inspection of the equipment in repair shops.
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From page 191... ...
180 • Compensating Injured Railroad Workers Under FELA REFERENCES ABBREVIATIONS FRA Federal Railroad Administration GAO General Accounting Office FRA.
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From page 193... ...
182 • Compensating Injured Railroad Workers Under FELA called "medical-only claims." FELA claims in this category differ from workers' compensation claims. Under workers' compensation, claims in this category are minor injuries that result in no lost time or for which the lost time is less than the state minimum.
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From page 194... ...
Terminology • 183 generally because the employee and the railroad cannot reach agreement through direct negotiations. Litigated claim settlement status means that the claim is settled after a suit has been filed.
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From page 195... ...
Study Committee Biographical Information Clinton V Oster, Jr., Chairman, is Professor at the School of Public and Environmental Affairs at Indiana University.
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From page 196... ...
Study Committee Biographical Information • 185 RichardJ. Butler is Professor in the Department of Economics at Brigham Young University.
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From page 197... ...
186 • Compensating Injured Railroad Workers Under FELA American Philosophical Society, a senior member of the Institute of Medicine, and a life member of the National Academy of Arbitration. Evelyn S
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From page 198... ...
Study Committee Biographical Information • 187 Herbert R Northrup is Professor Emeritus of Management, the Wharton School, University of Pennsylvania, and author of numerous studies of railway labor relations and public policy.
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From page 199... ...
188 • Compensating Injured Railroad Workers Under FELA visiting fellow of the Transport Studies Unit at Oxford University, and a visiting research fellow of the Centre for Transport Policy Analysis at the University of Wollongong, Australia.
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From page 200... ...
The Transportation Research Board is a unit of the National Research Council, which serves the National Academy of Sciences and the National Academy of Engineering. The Board's purpose is to stimulate research concerning the nature and performance of transportation systems, to disseminate the information produced by the research, and to encourage the application of appropriate research findings.
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From page 201... ...
TRANSPORTATION RESEARCH BOARD National Research Council 2101 Constitution Avenue, N
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Key Terms
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