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Fela information

  1. 1. HILDEBRAND MCLEOD & NELSON REPRESENTING INJURED RAILROAD WORKERS SINCE 1926 FREDERICK L. NELSON QUYNHL. NGUYEN VICTOR A. RUSSO DAVID B. DRAHEIM RYANJ.OTIS MICHAEL J. VENER ANTHONY S. PETRU BRADLEY W. WAHRLICH JAMES ROBERTS KRISTOFFER S. MAYFIELD 350 FRANK H. OGAWA PLAZA 700 NORTH BRAND BLVD. FOURTH FLOOR SUITE 860 WWW.HMNLAW.COM OAKLAND, CA 94612 GLENDALE, CA 91203 1-800-447-7500 1-800-447-7500 IF YOU ARE INJURED WHILE ON DUTY: I. Obtain medical treatment as soon as possible. You have the right to see the medical provider of your choice. You do not have to use railroad provided treatment centers. If threatened with insubordination, comply with managers request and then seek treatment with your own medical provider or hospital. 2. Do not allow railroad management into the examination room, or to discuss treatment of your injury with your medical provider or your family. 3. Do not fill out the accident report until you are mentally and physically able. 4. Do not give a taped or written statement to the railroad. 5. Immediately contact our Office or your Union Representative to help you fill out the accident report if you are unsure of how to answer any question. Call Hildebrand McLeod & Nelson, Inc. 1-800-447-7500 Important Medical Information for Medical Providers: • All medical bills are paid through the employees group health insurance policy. • Railroad workers do not have any rights under state workers compensation. • When injured on the job, railroad workers are governed by the Federal Employers Liability Act ("FELA") . • FELA does not have a medical provision clause. • The employer railroad does not have a right to talk to the employees medical providers, obtain medical records, or participate in medical examinations without the employees prior approval. • Employees and medical providers are not required to get the companys authorization for medical treatment. • The employer railroad might process the bills, but that does not waive the employees doctor/patient privilege. UNDERSTANDING YOUR RIGHTS UNDER FELA IS THE FIRST STEP IN PROTECTING YOUR RIGHTS. CONSULT WITH HILDEBRAND, McLEOD & NELSON,INC. 1-800-447 -7 500 www.hmnlaw.com Designated Legal Counsel- Investigators/ConsultantsRon Reich C (510) 501-9818 reich@hmnlaw.com Thomas Lelevich C (916) 947-3348 lelevich@hmnlaw.comMarty Dollar C (503) 860-1071 dollar@hmnlaw.com Bob Ricou C (661) 303-0972 ricou@hmnlaw.coll1K.D. Lee C (661) 303-1710 kd.lcs@bak.rr.com John Kallal C (213) 509-3517 kallal@hll1nlaw.coll1Ronald Johnson C (775) 721-5530 rxrj@aol.com Amy McCarthy C (626) 484-5374 mccarthy@hmnlaw.coll1Carlos Mora C (916) 764-6701 mora@hnmlaw.com Art Flores C (213) 712-4945 flores@hll1nlaw.coll1Lou Bottini C (916) 207-1089 bottini@hmnlaw.com Diego Rojas C (909) 238-1105 rojas@hmnlaw.coll1
  2. 2. ATTORNEYS & OFFICES W"HISTLEBLOW"ER VIOLATIONS WHAT ARE WHISTLEBLOWER VIOLATIONS?Pursuant to 49 U.S.C. Section 20109, the railroad commits a whistleblower violation when it engages in any adverse actionagainst a railroad worker because that worker performed a protected activity.Common Protected Activities: Common Adverse Actions: • Notifying the railroad of work-related injuries and • Discipline • Intimidation medical conditions • Firing • Threats • Reporting hazardous safety or security conditions • Harassment • Reduced pay, hours, or • Accurately reporting hours of service • Probation or adverse choice of jobs • Filing or assisting with an OSHA Complaint "points" assessments • Blacklisting • The railroad cannot delay, deny, or interfere with your • Retaliation medical treatmentExamples of Potential Violations: 1) Termination, discipline, or harassment for reporting an on-duty injury or hazardous safety condition 2) Delaying or denying an employees request for hospital or medical care 3) Railroad nurse or railroad doctor interfering with or delaying medical care 4) Intimidation/Harassment: Threatening investigation or discipline if an injury is reported HOW TO PROTECT YOURSELF 1) Ask questions and get advice before and after reporting an injury • Contact your union reps and experienced attorneys at Hildebrand McLeod & Nelson LLP 2) Explicitly request medical treatment • Your maximum protection is when you request hospital/ER care immediately after an injury • If you ask for the hospital, the railroad must promptly arrange transport to the nearest hospital • With or without a request, the railroad still cannot delay, deny, or interfere with your treatment 3) Keep detailed notes • Write down all key events, dates, times, witnesses, and conversations with railroad managers 4) Timely file a whistleblower complaint with OSHA • Timing: You must file your complaint no later than 180 days after an adverse action • Potential remedies: Punitive damages up to $250,000, back pay and other economic damages, emotional damages, reinstatement and clearing of personnel record, attorney fees, and other relief afforded by the law © HILDEBRAND McLEOD & NELSON INC. I www.hmnlaw.com
  3. 3. ATTORNEYS & OFFICES FELA VERDICT: $569,500.00 $569,500.00 FELA Jury Verdict - December 17, 20121 Vergara v. Union Pacific Railroad Company Hildebrand McLeod & Nelson, Inc. 1 Attorney Victor A. Russo Los Angeles County, Los Angeles, CaliforniaOn October 16, 2008, Mr. Ron Vergara, age 36, was working as atrainman on a remote control job for Union Pacific Railroad at anindustry called Lube Industries. While attempting to uncouple tworailcars on a sharply curved track he encountered great difficultywith the cut levers. He made several failed attempts to uncouplethe railcars which "tweaked" his back. Evidence at trial establishedthat the railroad and Lube Industries had received numerous com-plaints from employees over the years that the curved trackprevented the cut levers from operating as intended. Nonetheless,no changes in operations or the configuration of the track weremade and no warnings were given to Mr. Vergara about the knownrisk of injury.Union Pacifics doctors initially diagnosed Mr. Vergaras injuries as a "mild sprain; but his family doctor realized he hadserious injuries and Mr. Vergara ultimately underwent back surgery in the form of a right L4-L5-$ 1 hemilaminotomy,facetectomy and foraminotomy with microsurgical discectomy. As a result of these injuries, Mr. Vergara could notreturn to work for Union Pacific. While off disabled from work, the railroad also terminated Mr. Vergara due to his failureto provide updated medical information while he was on a leave of absence.At the time of trial, Mr. Vergaras vocational expert testified that after a training program he could obtain employmentas a logistics coordinator. Despite his inability to work as a trainman, the railroads lawyers argued that Mr. Vergara wasentitled to no more than $800.00 for his lost earnings, because the railroads doctors thought the surgery he under-went was not caused by the incident and was instead due to his history of chronic back problems. The railroad alsooffered surveillance video and relied heavily on printouts from Mr. Vergaras Facebook page, where he had postedphotographs of his post-accident activities, including frequent fishing.Before trial, the railroad offered $200,000.00 to settle Mr. Vergaras case. This offer was rejected and after a two weektrial, the jury deliberated for a day and a half before returning a gross verdict of $850,000.00. The jury also determinedthat Mr. Vergara was partially at fault for the incident "for yanking on the cut lever" resulting in a net verdict of$569,500.00. Mr. Vergara was represented at trial by Victor A. Russo of Hildebrand McLeod & Nelson, Inc. © HILDEBRAND McLEOD & NELSON INC. I www.hmnlaw.com
  4. 4. ATTORNEYS & OFFICES FELA VERDICT: $3,081,600.00 $3,081,600.00 FELA Jury Verdict - December 14, 2012 1 Winckler v. BNSF Railway Company Hildebrand McLeod & Nelson, Inc. 1 Attorneys Anthony S. Petru & Jason J. Romero Maricopa County, Phoenix, ArizonaMr. Joseph Winckler suffered severe injuries to his knee and Injury to Right Knee, 1st & 2nd Surgeries, Joseph Wincklerankle on May 29, 2007 when he was stepping down from a Current Condition Medial compartment of knee with losslocomotive in Winslow, Arizona. He stepped down onto a tie of cartilage & narrowing ofthat was longer than standard ties because the tie was part of join/spacean approach to a fueling rack in BNSFs Winslow Yard. BNSFhad failed to properly dress the tie with ballast or othermaterial up to the top of the tie, as depicted in BNSFs ownengineering diagrams, and Mr. Wincklers knee and anklewere caused to twist as he stepped down. The incident was Frayed, degeneratedimmediately reported and Mr. Winckler was eventually lateral meniscus - ••.••• ~, •••~.disabled from work as a conductor for BNSF. Surgical resection of media/meniscus {partial),Without work as a conductor, he went to work as a trainmas- irfrapatellar plicater trainee for BNSF in Winslow, but BNSF failed to offer him apermanent position at the end of his six month trainingperiod. As a result, he was forced to go back to his prior line of work to support his family, working as a wildlandfirefighter. Ultimately, he could not continue this work because of his knee injuries. Thereafter, he moved throughoutthe country chasing non-railroad work and struggling for years before trial to make ends meet to support his family.While he was off work, he also continued to apply for jobs with BNSF, and attempted to work directly with BNSFsvocational manager without any success until shortly before trial when BNSF offered him a yardmaster trainee positionin Seattle, Washington. At the time of the trial he was working as a yardmaster trainee, but was not fully qualified as ayardmaster and had not received a yardmaster seniority date. Following his yardmaster training, it was unlikely hecould hold a permanent position as a yardmaster because of his lack of yardmaster seniority.Following a three week trial in Phoenix, Arizona, the jury found BNSF liable for Mr. Wincklers injuries and returned averdict of $3,852,000.00, less a finding of 20% contributory negligence by Mr. Winckler, resulting in a net verdict for Mr.Winckler in the amount of $3,081 ,600.00. Before trial, BNSFs "last and final" offer to settle the case was $75,000.00.Mr. Winckler was represented at trial by Anthony S. Petru of Hildebrand McLeod & Nelson, Inc. and Jason J. Romero. © HILDEBRAND McLEOD & NELSON INC. I www.hmnlaw.com
  5. 5. Medical Insurance Information & Revocation of Health Information Release to Employer I. Insurance Coverage Not Through Workers CompensationTo Whom It May Concern: I, , am an employee with Union Pacific railroad. As a railroad employee, I am NOT covered by workers compensation; rather on-duty injuries forrailroad employees are governed by the Federal Employers Liability Act ("FELA") under 45 U.S.C. §§51, et seq. My medical bills are paid through my employee group health insurance policy; there is noworkers compensation coverage. You are not required to get my employers authorization for my medical treatment.Date: ------- Signed: _ Print name: ------------------- II. I Do Not Authorize the Release of My Health Information to My EmployerTo Whom It May Concern: I, , do not authorize my health care provider,_____ -::-- _ -:-:::- _ to release any of my health information to myemployer, Union Pacific. In other words, I affirmatively instruct my above-named health care providernot to release any of my health information to my employer. I hereby revoke any past authorizations for the release of my health information to my employer. I also instruct my health care provider to contact me immediately if any person affiliated withUnion Pacific requests my health information. These instructions remain in effect indefinitely, unless I authorize a release of records to myemployer in writing and pursuant to HIPPA under 45 CFR Parts 160 and 164.Date: -------- Signed: _ Print name: -------------------