ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 17 Issue 1                                                    January 2010

 RAILWAY CLAIM SERVICES, INC.                     Our 23rd Year of Service

Ø                  BACKGROUND CHECKS

Ø                  RAILROAD WORKFORCE LEVELS AT NEW LOW

Ø                  THRESHOLD REPORTING INCREASED

Ø                  DRUNKEN DRIVING, MOTORCYCLE DEATHS ARE DECLINING IN CALIFORNIA

Ø                  THE HIDDEN COSTS OF CLAIMS

Ø                  RAILROADS ACCIDENTS DECLINE:  2009 v. 2008

Ø                  NTSB REPORTS THAT TRANSPORTATION FATALITIES ARE DOWN, 2007 v. 2008

Ø                  QUOTES FROM HISTORY

Ø                  THE 85th ANNUAL SOUTHEASTERN CLAIMS ASSOCIATION CONFERENCE

Ø                  THE 17th ANNUAL RAILROAD LIABILITY SEMINAR

Ø                  COLLECTIONS?

Ø                  RAILWAY CLAIM SERVICES, INC. WEBSITE

Ø                  POINTS OF LEGAL INTEREST

Ø                  RCSI INFORMATION

 

BACKGROUND CHECKS & 49 CFR PART 172

Railway Claim Services, Inc. (RCSI) can perform background checks for potential job applicants.  RCSI can also check injury histories for employees.  For further information contact Brenda Cox of RCSI at 731-967-1796, Fax 731-967-1390, or via email at coxb@railway-claim-services.com.  

Background checks are required for new employees under the Haz Mat Security Plan implemented by CFR Part 172, Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials.  This rule states in part, “No later than the date of the first scheduled recurrent training after March 25, 2003, and in no case later than March 24, 2006, each hazmat employee must receive training that provides an awareness of security risks associated with hazardous materials transportation and methods designed to enhance transportation security”.

If your railroad has not yet implemented 49 CFR Part 172, Railway Claim Services can assist. 

RAILROAD WORKFORCE LEVELS AT NEW LOW

WASHINGTON, D.C. — The seven U.S. Class I freight railroads cut 1,923 jobs, leaving their combined workforce at a new low of 147,097 in mid-November 2009.

Reports the carriers submitted to the Surface Transportation Board show most of the cuts in track maintenance crews. That job category accounted for 33,561 employees at mid-November, down from 34,622 at the same point in October.

The largest rail-jobs category – train and engine workers – also shrank in the run-up to the Thanksgiving holiday period. Class I carriers trimmed their T&E force to 56,447 from 57,198 a month earlier.

In all, the November STB report shows the fourth straight monthly decline since a brief gain in rail jobs in July, when new and tighter work-hour rules took hold.

The latest total is down from 149,020 workers the Class I’s reported for October, 159,511 in January and 163,020 in November 2008.

The STB requires the largest group of railroads to report their workforce as of the first payroll of each month. The companies then have until month’s end to mail in those figures, and the agency assembles them into a single report.

The agency also ranks each month’s total against the average for a base year of 1967, when the report began. Back then, Class I rail employment averaged around 600,000. The latest level is just 24.1 percent of the 1967 average, and down from 26.2 percent at the start of 2009 after the big railroads cut jobs almost steadily through the year.

For November, BNSF with the second-largest rail workforce made the largest job cuts. Others trimming their payrolls were UP, the largest employer, plus CSX and the U.S. units of CP and CN. 


NS and KCS added workers from mid-October.   (This was reported on the Journal of Commerce website on December 29, 2009.)

 

THRESHOLD REPORTING INCREASED

The FRA recently issued a final rule raising the threshold for reporting certain railroad accidents/incidents involving property damage from $8,900 to $9,200.  The reporting threshold, increased with the start of the new year, as in previous years, on January 01, 2010.

DRUNKEN DRIVING, MOTORCYCLE DEATHS ARE DECLINING IN CALIFORNIA

SACRAMENTO, CA. – After years of rising steadily, drunken-driving and motorcycle fatalities are falling in California, possibly one happy result of our long economic downturn.  Tougher laws, more enforcement and extensive public awareness campaigns also get credit.

There were 1,112 people killed in California by drunken drivers in 2008, down from 1,491 in 2007. And motorcycle deaths on state roads and highways fell 25 percent in the first six months of this year, 198 compared with 264 for the same period in 2008.

Nationwide, there were 37,313 people killed on U.S. roads in 2008, the lowest number of highway deaths since 1961.

THE HIDDEN COSTS OF CLAIMS

How devastating is the cost of a claim to the bottom line?  While it is easy to see the premium dollars going out the door annually, it may not be so easy to see and appreciate the costs of payments made within the Self Insured Retention (SIR) and it may not be as easy to appreciate the full impact of these costs.

For example, for one small claim of $25,000 for a company with a 5% profit margin, it takes $500,000 to replace that one claim on the bottom line. It takes a company with a total of $2 million annual incurred losses with a 5% profit margin $40 million dollars to replace the $2 million on the bottom line, for example.

Now translate that number and put it into perspective by using an analogy that relates to your operation.  If we reduced our claims payouts by 20%, we would increase our bottom line by X.  How many additional car loads does it take to pay a claim payment of $50,000?  In today’s economic climate it may be easier to take charge of your claims costs than it is to increase car loads and reduce staff.   Poor management of claims can significantly increase costs, which reduces return on investment.

The best money spent on reducing this “leakage” is to have Railway Claim Services, Inc. manage your risk management and claims losses. 

To get more information on this subject we look to the companies that are under workers’ compensation, where because of there are more of them than there are of us, there are more studies.  Go to http://corner.advisen.com/wc for more information about Workers’ Comp Tool Kit™ to understand more about reducing claims.  The companies that use these tools report average workers’ comp savings of 20% to 50%, and the bottom line impact can be seen immediately. The Free Calculator in the Workers Comp Kit puts these costs into perspective.   Determine your company’s costs for free at www.ReduceYourWorkersComp.com/calculator.php 

RAILROADS ACCIDENTS DECLINE:  2009 v. 2008

Measurements for the latest 2009 data available, through the third quarter, short line railroads saw a decline from 352 to 279 train accidents for the first ten months of the year.  The industry as a whole declined to 1,378, from 1,904.  Short line railroads employee injuries declined from 551 to 405 during the first nine months. 

The numbers carried over to all categories.  There were 599 trespasser casualties during first nine months of 2009, compared to 686 for the same period in 2008.  Crossing accidents also declined.  There were 1,379 crossing accidents during the first nine months of 2009, compared to 1,787 in 2008.

NTSB REPORTS THAT TRANSPORTATION FATALITIES ARE DOWN, 2007 v. 2008

Last year, U.S. transportation fatalities totaled 39,397, down about 10 percent compared with 2007 deaths, according to preliminary figures released by the National Transportation Safety Board.  Fatalities now have fallen in three-consecutive years.

Rail fatalities fell slightly from 794 to 777, with the vast majority of deaths caused by rail vehicle accidents. Highway fatalities, which account for more than 94 percent of all transportation deaths, dropped from 41,259 to 37,261, aviation fatalities increased slightly from 550 to 572,     and marine deaths rose from 766 to 779.

Federal Railroad Administration statistics recently released by
Operation Lifesaver Inc. (OLI) show 2,397 highway-rail grade crossing collisions occurred last year, killing 286 and injuring more than 900.  Seventy-eight of the collisions, which were caused by “highway user inattentiveness,” resulted in 14 deaths and 117 injuries, according to OLI.  Inattentive drivers contribute to about 3 percent of all vehicle-train accidents at crossings and 20 percent of crossing collisions involve motor vehicles striking trains, the organization estimates.

In 2009’s first half, 34 crossing incidents that led to six fatalities and 52 injuries were caused by inattentive drivers, OLI said.

 QUOTES FROM HISTORY

It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so.  Mark Twain (November 30, 1835 – April 21, 1910)

If you hold a cat by the tail you learn things you cannot learn any other way.  (Mark Twain)

On account of being a democracy and run by the people, we are the only nation in the world that has to keep a government four years, no matter what it does.  Will Rogers  (November 4, 1879 August 15, 1935)

The more you read and observe about this Politics thing, you got to admit that each party is worse than the other. The one that's out always looks the best.  Will Rogers

Be thankful we're not getting all the government we're paying for.  Will Rogers

Diplomacy is the art of saying “Nice doggie” until you can find a rock. Will Rogers

THE 85th ANNUAL SOUTHEASTERN CLAIMS ASSOCIATION CONFERENCE, hosted by See full size image

The 85th Annual Conference Southeastern Claims Association conference will be held at the historic Casa Monica Hotel in St. Augustine, Florida, on June 22 - 25, 2010.   CSX’s John Matus serves as President for 2010 and will be the host on behalf of CSX Transportation, Inc.

The Casa Monica Hotel is offering special rate of $149.00, which is available the weekend before and after the conference for those interested in extending their visit. The reservation deadline is June 7, 2010 and the guaranteed rate is not available beyond that date. The hotel may be contacted via telephone at (800) 648-1888 or at their website, http://www.casamonica.com.

 

The Casa Monica Hotel, the only AAA Four Diamond hotel in the city, is a majestic 1888 landmark; located in the heart of St. Augustine (the nation's oldest city Restored in 1999.  Although the particulars of some events are still being developed as of this writing, the President's Reception will be held at the fabulous Lightner Museum where relics of America's Gilded Age are elegantly exhibited on the museum's three floors. Costumes, furnishings, mechanical musical instruments and other artifacts give you a glimpse into 19th century daily life. The Lightner collection includes beautiful examples of cut glass, Victorian art glass and the stained glass work of Louis Comfort Tiffany. Additional information about the Lightner Museum, often called "Smithsonian of the South," is available at http://www.lightnermuseum.org 

The business and social agendas, golf outing and spouse activity information, as well as on-line registration at our website will be available after the first of the year. This information and a registration form will also be available on the Southeastern Claims Association’s web site:  https://www.southeasternclaims.org/index.php

THE 17th ANNUAL RAILROAD LIABILITY SEMINAR, hosted by

The 17th Annual Railroad Liability Seminar is scheduled for June 23-25, 2010 at the Indianapolis Crowne Plaza Downtown (123 West Louisiana Street, 46225).  The Indiana Rail Road and Jacky Hardy serves as the host for 2010, and Jacky has assured all that this years edition of this conference will come with a GREAT agenda, mixed with a totally enjoyable social agenda intended to maximize the opportunity to spend with others in the industry.  The 2010 conference will highlight:  State of the Marker, Ask Counsel, Medicare Claim Reporting, OSHA vs. FRA – New Rules, and Locomotive Simulator. 

More information on the hotel, and making reservations are at https://resweb.passkey.com/go/INRailroadCo, or by phone at 1-888-233-9527.  King, Executive and Train Car accommodations are $82.00.  Early arrivals can partake of the golf outing on June 23.  The seminar starts first thing on June 24, and continues with a  half day on June 25, followed by a night out at the ball game (Indianapolis Indians vs. Toledo Mud Hens).

For questions or to assure that you get on the email list for this and future Liability Seminar conferences email Jacky Hardy at: Jacklyn.hardy@inrd.com  

COLLECTIONS?

Problems collecting for damages?  Increase your chances of collecting that money, or reducing the total you are legally obligated to pay.  All without the cost and delays where litigation is involved.  Let Railway Claim Services, Inc. handle these collection issues for you.  You pay nothing if RCSI fails to collect or fails to reduce the bill for the submitted loss.  Email or call Randal Little or Dave Gardner for further information.  There is no cost if we are not successful.

 RAILWAY CLAIM SERVICES, INC. WEBSITE

Railway Claim Services, Inc. maintains a website containing useful information for our industry.  If you haven’t visited our website recently, you may have missed some of the content recently added.

The Code of Federal Regulations, TITLE 49—Transportation, Subtitle B--OTHER REGULATIONS RELATING TO TRANSPORTATION, CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.  Please visit our website and click on the following link.  http://www.railway-claim-services.com/waycar.htm  

Railway Claim Services’ website has the complete General Code of Operating Rules posted for your reference.  http://www.railway-claim-services.com/safety_first.htm

RCSI also has the entire text of the FELA posted on our website:  http://www.railway-claim-services.com/waycar.htm

Also, The Occupational Safety & Health Act of 1970 is available at:  http://www.railway-claim-services.com/waycar.htm

As a part of our ongoing efforts to provide RCSI clients with information vital to the safe and efficient operation, RCSI’s website contains the complete text of the Emergency Response Guidebook:  http://www.railway-claim-services.com/waycar.htm

RCSI is always trying to upgrade our website and make it a place for you to find the information you need.  If you have any suggestions, comments, or questions, please feel free to contact me at your convenience.  We appreciate your feedback.

*POINTS OF LEGAL INTEREST

FELA – Cumulative Trauma Claims – Jury Rejects Cumulative Trauma Claims of a CSX Employee – Defense Verdict – Ohio. The employee-plaintiff went to work for CSX in 1978.  He sued the railroad in 2007, claiming that working on defective trains which operated on rough tracks resulted in injuries to the neck, back and shoulders.  CSX denied liability, taking the positions that plaintiff’s medical conditions were not due to any railroad negligence.  The jury returned a defense verdict. Ronald Lee Munns v. CSX Transportation, U.S. District Court ND. Ohio No. 3:07-cv-02507. James R. Carnes, Toledo, OH for CSX.

FELA – Cumulative Trauma Claims – Employee-Plaintiff gets Verdict – $75,000 Verdict - Tennessee. The Employee-plaintiff went to work for the railroad in 1973. He worked for a number of years as a machine operator, where he frequently operated a backhoe.  In 2006 he sued Illinois Central (IC), claiming that the jarring action of the backhoe over time caused cumulative stress which resulted in a disc injury that brought radiating pain. He argued that the railroad failed to furnish a safe place to work.  The IC denied liability, taking the position that there was nothing wrong with using a backhoe. The IC presented evidence that the employee-plaintiff’s disc condition was the result of the aging process.  The jury found in favor of plaintiff for $75,000.  Willie Nash v. Illinois Central Railroad, Shelby Co. (TN) Circuit Court No. CT-0056520-06.  Camille Reifers, Emily C. Webster, Brooks E. Kostakis of Boyle Brasher, Memphis, TN for Illinois Central.

FELA – Cumulative Trauma Claims – Employee-Plaintiff gets Verdict – $8,000 Net Verdict – Texas.   The employee-plaintiff went to work for Union Pacific (UP) as a trackman in 1971, and continued in that position until he retired in 2001. In 1996, he received injections in his shoulder to help relieve pain.  A June 2003 MRI showed a bulging disc at L4-L5. Shoulder surgery was undertaken in 2005.  The employee-plaintiff sued UP in 2006, alleging that his injuries were the result of cumulative and/or repetitive trauma at work.  He faulted UP for failing to adopt and implement a proper ergonomics program to prevent such injuries.  UP took the position that the claims were barred by the statute of limitations.  The trial lasted three days, and the jury deliberated an hour and a half before returning a verdict of $16,000, less 50% comparative fault.  David George, Mainess Gibson, Amy L. Nielsen, Earnest W. Wotring of Connelly, Baker & Wotring, Houston, TX; Andrew Reinhart of Kelly Hayden, Pittsburgh, PA for defendant.

FELA – Cumulative Trauma Claims – Whole Body Vibration Claim by BNSF Brakeman and Locomotive Engineer Results in Montana Settlement.   According to the complaint, in 2007, after twenty eight years of service, the plaintiff became occupationally disabled due to a spinal problem.  The plaintiff asserted claims under FELA, the Locomotive Inspection Act, and the Safety Appliance Act. The plaintiff claimed that over the course of his career his spine was subjected to the cumulative effects of shocks, jolts, vibration, and excess lateral and vertical movement as the result of inadequate, defective and negligently maintained locomotives, including cab seats, and tracks and roadbeds.  BNSF denied liability and claimed that there was no evidence of negligence.  BNSF also claimed that plaintiff failed to exercise due care for his own safety.  BNSF also asserted that the plaintiff had suffered from a pre-existing condition.  The case settled for a confidential sum on the third day of trial.  Randall Barrett v. Burlington Northern Santa Fe Railway, Yellowstone Co. (MT) District Court No. DVO6-646.

FELA – CSX Employee Claims Exposure to Industrial Cleaner – Defense Verdict – Kentucky.  The employee-plaintiff was worked for CSX as a machinist from 1974 to 1992.  The employee-plaintiff claimed that he was exposed on a nearly daily basis to the industrial cleaner Dowclene.  He claimed that the exposure resulted in the development of toxic encephalopathy which manifested in anxiety, memory loss, confusion, dementia and a smell-taste deficiency.  In his lawsuit the plaintiff alleged that the railroad failed to provide him with a reasonably safe place to work. CSX denied liability, taking the position that the workplace was state of the art; that employee-plaintiff was provided with respirators, goggles and gloves. CSX also put on evidence that the solvent exposure was insufficient to have caused injury.  Following a two-week trial, the jury returned a defense verdict.  Larry White v. CSX Transportation, Inc., Jefferson Co. (KY) Circuit Court No. 03-8368. David T. Klapheke, Rod S. Payne of Boehl, Stopher & Graves, Louisville, KY for CSX.

FELA - Wisconsin Central (WC) Conductor Struck By Transport Van in Motel Parking Lot – $87,356 Gross Verdict – Chicago.  The employee-plaintiff was in a motel parking lot awaiting transport by Howard’s Van, a contract van service, when the van driver backed his van into the employee-plaintiff.  The employee-plaintiff claimed that the van driver did not look back so that he failed to see his outstretched hands.  The employee-plaintiff claimed that the accident resulted in a separated left shoulder and a herniated C6-7 disc which required surgical repair.  Although WC conceded that the driver should have checked all mirrors before moving the van, it also argued that plaintiff was contributory negligent in placing himself behind a running vehicle without notifying the driver of his presence.  WC  also claimed that plaintiff had his hands outstretched in order to strike the van out of anger.  A defense expert opined that the impact force was insufficient to produce the disc injury of which plaintiff complained.  Following a week-long trial, the jury returned a verdict in favor of plaintiff for $87,356, less forty percent comparative negligence.  Daniel J. Arnett, K. Amy Lemon of Dowd & Dowd, Chicago, IL for Wisconsin Central.

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RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner or Randal Little at (731) 967-1796 or FAX your message to (731) 967-1390.

Visit the Railway Claim Services, Inc. webpage located at www.railway-claim-services.comRailway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between.  If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?

 

For further information contact:

 

dave_gardner@railway-claim-services.com  

briggsd@railway-claim-services.com  

or

randal_little@railway-claim-services.com

 

Corporate Offices at:   52 South Main Street    Lexington, Tennessee  38351

 

Phone:  800-786-5204, Fax: 731-967-1390 or visit us on the Web at www.railway-claim-services.com

 

Railway Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES.