Statute of Limitations Alert!
by: Jay A Kaplan
The statute of limitations on FELA cases is three years from the FIRST DATE that the injured employee either actually knew of an injury or a potential injury OR SHOULD HAVE KNOWN of the injury.
We recently reviewed several cases where the employee knew or had some reason to know that they had a problem or which they or their doctor believed was caused by their work conditions. Yet, they were reluctant to discuss it with anyone or to notify the railroad.
Unfortunately for instance, when the long term back, knee, hearing or other medical problem becomes more serious and the injured work is forced to seek medical care or even is placed on medical disability, the railroad may have the advantage if the injured worker waited so long that the railroad could successfully contend that the railroader KNEW OR SHOULD HAVE KNOWN of the injury and therefore is precluded from filing a lawsuit and obtaining a recovery.
The rule is not three years from the first day a worker is disabled from work nor is it three years form the date that your most recent doctor advises you that your injury may require serious treatment, disability or even to leave work.
For example, Joe Railroader is a 54 year old railroad worker who had increasing back symptoms for the past five years. He sought periodic treatments from his family doctor or chiropractor who noted in the medical file that “patient says work is bothering his back.” The family doctor prescribed physical therapy. The physical therapist or chiropractor also made notes each session that “patient described work activities that increase his back pain; heavy lifting, carrying climbing up and down on engines.” After some physical therapy, Joe’s back feels better and he is basically able to return to work full duty.
Finally, several years later, after periodic flare-ups, the patient’s back “gives out” on him and his family doctor refers him to an orthopaedic specialist who writes down “history of chronic cumulative back trauma, 5 years may need surgery: shouldn’t return to work at railroad.”
Joe Railroader contacts his union rep and his designated railroad counsel and believes he has three years from date his orthopaedist made the note to file his FELA claim. Does he?
The answer is probably not. The railroad is entitled to assert the three year statute of limitations. Their experienced claims adjusters and attorneys are entitled to get the relevant back records and will assert that the statute of limitations ran two years ago – which is three years after the first time that the patient/railroader knew or had any reason to know that the back injury was connected to his or her work.
Each person’s medical history is unique and individual. However, if you have any questions about whether or not the statute of limitations was or will be triggered please call us. All contacts are confidential and there is no obligation whatsoever.
JAY A. KAPLAN
KAPLAN LAW CORPORATION
Union Approved F.E.L.A. Attorneys
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