OMAHA, Neb. - A Wyoming womans lawsuit accusing Union Pacific Railroad of not doing enough to protect her against mosquito bites isnt as bizarre or frivolous as it might appear, the World-Herald reports.
Vivika A. Deviney said she suffered permanent injuries after contracting the mosquito-borne West Nile virus in 2003 and under federal law she has to sue the railroad to prove negligence in order to receive compensation for her injuries.
(Deviney is a member of Local 257, Morrill, Neb.)
This is her sole remedy, said one of her attorneys. This is the only route she has.
Deviney, 59, cannot perform her job as a conductor because of severe hearing loss, fatigue, vertigo, reduced vision and weakness in her left side, the attorney said. And she has not found other work.
A quirk not widely understood is that workers compensation laws, which generally ignore liability and pay injured workers for lost wages and medical expenses, do not cover railroad workers. Instead, Deviney and other rail employees are covered by the 1908 Federal Employers Liability Act (FELA), which requires workers to prove that their railroads were negligent before they can receive compensation for job-related injuries.
Another FELA case received attention in Nebraska this month when the Nebraska Supreme Court said a conductor who hurt his knee in Marysville, Kan., on his way into work could seek damages at trial because Union Pacific had encouraged its employees to use the alley in question and posted signs saying it was for railroad use only.
The Association of American Railroads, which represents Union Pacific and other railroad companies, has argued that the law sets up an adversarial relationship between employees and the companies they work for. The law is costly and outdated and should be replaced by a workers compensation system, the group has argued.
Union Pacific believes this litigation process is harmful to the railroad industry and its employees, U.P. spokesman Tom Lange said.
Worker unions tend to back FELA.
The FELA is the most comprehensive worker injury compensation program in the nation because it holds railroads strictly accountable for unsafe working conditions, said John Bentley, a spokesman for the Brotherhood of Locomotive Engineers and Trainmen. The law has made a substantial contribution to improvements in rail safety since its enactment over 100 years ago.
Rail workers continue to have a significantly higher risk of being injured on the job compared with workers in most other industries, Bentley said. FELA continues to be a necessary tool because of this risk.
The law was Congress response in the early 1900s to a national outcry at the number of railroad workers being killed or maimed on the job. The rail industry has dramatically reduced its injury rate since those early years.
FELA was one of the first laws based on the idea that companies should provide a safe workplace and that businesses were better equipped to shoulder the cost of industrial injuries than were workers or their families.
In subsequent decades, federal and state workers compensation laws became common across the country.
Even under FELA, Union Pacific officials and the attorney said, injured employees and rail companies often work out agreements or settle disputes without lawsuits being filed. However, some disputes end up in court.
In Devineys case, Union Pacific argued that the lawsuit should be dismissed because it was not realistic to expect the railroad to protect employees against mosquito bites. A Douglas County District Court judge agreed.
But Deviney appealed and a three-judge panel of the Nebraska Court of Appeals, with one judge dissenting, said in November that there was evidence Union Pacific may have breached its duty to provide a safe place to work.
The railroad was aware of the dangers of West Nile virus and issued an accident prevention bulletin about the disease, the court said. Union Pacific also tried to control mosquitoes in a rail yard where Deviney worked but might not have done enough in that regard, the appellate court said.
A jury should hear the case, the court said.
Union Pacific has filed an appeal with the Nebraska Supreme Court, arguing that Devineys situation was a novel case that would put unfair and unrealistic burdens on the railroad. FELA also should not be expanded to recovery of damages beyond dangers that are unique to railroading, the company argued.
Devineys attorneys responded that FELA requires railroads to provide workers with a safe place to work, including reasonable measures to protect employees from insect bites.
Another attorney who files FELA complaints against railroads said many cases deal with back, neck and knee injuries. It is an important safety law that can help the public as well, he said.
Its a good law because railroads are hauling some of the most dangerous materials, such as toxic chemicals, he said. If they arent handled with the kind of safety precautions that railroads use in part to avoid FELA awards, whole populations can be hurt, he said.
Devineys case might seem bizarre, but she should get the opportunity to argue it before a jury, he said.
The lower court took the chance of recovery away, he said. It said, Were not going to give you a chance to collect a penny.
Deviney is not the first railroad worker to seek compensation for an insect bite. Courts have heard similar cases against railroads in cases of Lyme disease, which is carried by ticks, and allergic reactions to bee stings.
Workers outside the railroad industry also have claimed that they contracted the West Nile virus while on the job. A 2002 case in Louisiana, for example, involved a construction worker suing a firm that denied him workers comp benefits. The company argued that the worker had probably contracted West Nile outside the work site, and the worker lost the case on appeal.
Under workers comp laws, companies have to agree that workers were injured on the job, but there are no provisions for proving negligence or fault, just as there are no damages for factors such as pain or suffering. Workers compensation benefits often include medical expenses and some percentage of lost earnings.
Railroad workers, on the other hand, must prove that they were injured on the job and that their employer was negligent in order to collect money. Also, rail workers can sue for damages like pain and suffering. Awards provided under FELA tend to be higher than workers compensation benefits.
(This item appeared Dec. 30, 2009, in the World-Herald.)
"The Association of American Railroads, which represents Union Pacific and other railroad companies, has argued that the law sets up an adversarial relationship between employees and the companies they work for."
It's the laws fault for the adversarial relationship? Corporate greed and stupidity,scalp hunting and breach of contract don't create adversity between the railroads and their employees? Huh. You learn something new everyday.
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Some people say I have a bad attitude. Those people are stupid.
"The Association of American Railroads, which represents Union Pacific and other railroad companies, has argued that the law sets up an adversarial relationship between employees and the companies they work for."
It's the laws fault for the adversarial relationship? Corporate greed and stupidity,scalp hunting and breach of contract don't create adversity between the railroads and their employees? Huh. You learn something new everyday.
