Madison - St. Clair Record

Tuesday, October 15, 2019

FELA suits can offer better relief than worker's comp benefits

By Steve Gonzalez | Jun 30, 2005

The widow of a Belleville man who worked for Illinois Central Railroad (ICR) filed a Federal Employers’ Liability Act (FELA) lawsuit in Madison County Circuit Court June 27 seeking damages in excess of $50,000 alleging the railroad failed to provide her husband with a reasonably safe place to work.

Passed by the U.S. Congress in 1908, FELA was designed to protect and compensate railroaders who sustained injuries while working. Unlike state worker's compensation law, FELA requires the injured worker to prove that the railroad was "legally negligent," at least in part, in causing an injury.

Mildred Bagwill claims that while working for ICR, her husband Robert was exposed to and inhaled asbestos fibers, free silica, diesel fumes, solvent fumes, gasoline fumes, and other carcinogenic materials that were harmful to his respiratory system which led to his death on Oct. 10, 2002.

According to the complaint, Robert Bagwill suffered from asbestosis, chronic obstructive pulmonary disease, occupational asthma and bronchitis and lung cancer which were diagnosed in July 2002.

Bagwill claims that ICR was negligent by failing to take any effective action to reduce the respiratory irritants her husband was exposed to, failing to test Robert to determine if he suffered from occupational diseases, and failing to instruct Robert of proper methods of use and care of the respiratory irritants.

Under FELA, injured workers can seek compensation for wage losses past and future, medical expenses and treatments, pain and suffering, and for partial or permanent disability. If an employee dies, survivors are entitled to recover damages which they have suffered because of the death.

After proving negligence, the injured worker is entitled to full compensation, which is usually many times greater than that provided by state worker's compensation benefits for non-railroaders which provide benefits on a no-fault basis

Bagwill also claims ICR failed to tell Robert that wearing protective gear could help prevent exposure, failed to take reasonable care to publish, adopt and enforce a safety plan for working with harmful irritants, failed to provide adequate ventilation, and failed to use a degree of care and caution under the circumstances.

According to Bagwill, prior to her husband’s death he suffered great physical pain and suffering, nervous and emotional tension and anxiety, including the fear of imminent death, suffered financial losses, medical expenses, and lost the ability to enjoy life’s pleasures.

“Robert’s surviving family is entitled to be compensated for the present value of financial contribution which he would reasonably be expected to have given to his family, the pecuniary value of services which his spouse might reasonably have expected to receive from him in the future and the loss to his children and all other reasonable damages,” the complaint states.

Bagwill is represented by Daniel Francis of St. Louis. The case has been assigned to Circuit Judge George Moran, Jr.

FELA allows a claim to be brought in federal or state court, whichever better suits the employee’s convenience or purpose. The case may be filed in any city into which a railroad passes, or even where the railroad has no tracks but has a business office.

According to a published report by the Transportation Research Board (TRB), railroad management has argued that the FELA process imposes higher costs on the rail industry than those imposed by the workers’ compensation system on its competitors—primarily the trucking industry. That places railroads at a competitive disadvantage, the rail industry argues.

Rail union leaders contend that FELA is a necessary system to provide fair compensation and to offer incentives to industry to offer a safe working environment.

At the request of Congress, a TRB committee that produced the report compared FELA with other workers’ compensation systems. The committee concluded that while FELA provides higher benefits it can result in delays in payments, involve higher transaction costs, and result in greater costs to railroads.

The committee recommended that industry and labor make constructive changes in the FELA process that could help reduce costs. One means of doing so would be to rely on alternative dispute-resolution mechanisms to reduce the extent of litigation.

Due to the high degree of unionization in the railroad industry, any reductions in injury compensation benefits are likely to be resisted strongly by labor, the TRB concluded.

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