Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SATURDAY, October 1, 1994                   TAG: 9410030032
SECTION: EDITORIAL                    PAGE: A-9   EDITION: METRO 
SOURCE: DENISE A. SMITH
DATELINE:                                 LENGTH: Medium

LAWSUITS BY INJURED RAILROAD WORKERS ARE NO LOTTERY

According to the article, the railroad attorney, John Eure, wrote in court papers arguing against the award, sarcastically stating that Federal Employers Liability Act lawsuits are ``not a lottery.''

This statement is offensive to those covered under FELA.

My husband has a FELA compensation suit filed for an injury he suffered in 1987. For a railroad attorney to even hint that these injured employees are using FELA as a ``lottery'' is an insult. No one in their right mind would participate in such a horrid, gruesome, time-consuming process as a FELA lawsuit, and view it as a lottery.

The railroad argues that FELA regulations covering railroad workers allow excessive awards in injury cases. It would rather have railroad workers covered under workers' compensation.

It's true that awards may seem quite excessive to those who are comparing them to workers' compensation laws, which set limits on the amounts recovered. Under workers' compensation, one can recover an award or payment for injuries if the injury is job-related, even when the employer isn't at fault. But the amounts recovered are limited.

Under FELA, there must be some fault on the part of the employer for recovery to be allowed in the first place, and then consideration is given to whether an employee was partially at fault for his or her own injury. If the employee is at fault, it lessens the award, all of which must be decided in court, and the damages aren't limited. It's like a regular lawsuit.

With all the arguments about which is better or worse, both have their drawbacks. But workers' compensation doesn't reflect the actual cost to an injured employee, as FELA does. Much that does make up some difference in the actual costs, such as Railroad Retirement and Disability, Social Security, etc., are social programs that owe their existence to taxpayers as a whole, and not to a particular business.

In Ralph Hodges' case, under FELA, the appellate court didn't dispute a finding that Norfolk Southern Corp. contributed to this man being hurt, but the judge hadn't considered whether Hodges contributed any to his own injury. Therefore, a retrial was ordered.

The question Norfolk Southern should be wrangling with is not only how much this is costing them, but how to prevent these injuries in the future.

FELA has its faults. It requires years to put a suit through the court system, thus overburdening our system of justice. The trials can rival O.J. Simpson's murder trial between the lawyers' cost, the employee's entire life open to scrutiny, and no guarantee that an employee will be compensated.

But the alternative of putting railroad employees under workers' compensation laws, as the workers' compensation system stands today, would only benefit the railroads. It would create a situation where railroads would have even less incentive to create a safer working environment, in an industry that has a high rate of injury.

Doing away with FELA would put injured railroad employees within the limits of workers' compensation, which would, in turn, put the burden of the actual cost on already overburdened social programs.

That is no solution at all.

Denise A. Smith of Bastian owns a historical research business.