Legally reviewed by Colin X. Fitzgerald - Doran & Murphy, PLLC
You’ve just been seriously hurt on the job. Maybe you fell from a piece of equipment. Maybe you were struck by a moving car. Maybe something gave way that should have held. You’re in pain, you’re shaken, and the first thing that happens — before you’ve seen a doctor, sometimes before you’ve even left the scene — is that your employer’s people arrive to start asking questions.
What happens in the hours and days after a railroad injury is not neutral. The railroad’s post-incident process is designed, structured, and staffed to protect the railroad. Understanding what that process looks like and what you need to do in response can make the difference between a strong FELA claim and a compromised one.
The Railroad’s Investigation Begins Immediately
Major railroads maintain claims departments and field investigators whose job is to respond to employee injuries quickly. They are good at it. By the time you are being evaluated at an urgent care clinic or an emergency room, there is a reasonable chance that someone from the railroad has already been to the scene, photographed it from the railroad’s perspective, interviewed any witnesses, and begun generating internal documentation.
That documentation will not be shared with you voluntarily. It will be produced — if at all — through the formal discovery process in litigation, often after a fight.
Meanwhile, the railroad’s investigation is building a narrative. In a significant percentage of cases, that narrative centers not on what the railroad did wrong, but on what you did wrong.
The Post-Incident Drug Test
One of the first things that happens after a reportable railroad injury is a federally mandated post-accident toxicology test. This is required under FRA regulations — a framework upheld by the U.S. Supreme Court in — and applies regardless of any indication that drugs or alcohol were involved.
Railroads know that a positive test result — even for a prescribed medication or a substance that had nothing to do with the accident — creates a narrative of impairment that can be used to deflect from the railroad’s own negligence. Workers are sometimes pressured to downplay their injuries to avoid triggering a mandatory test. Do not do this. Accurately report your injury. The test is coming regardless, and minimizing your injury at the outset will only hurt your claim later.
The Internal Investigation and Rule Violation Finding
After a reportable injury, most major railroads conduct a formal internal investigation — sometimes called a “formal hearing” or an “investigation and discipline hearing.” You will likely be required to attend and answer questions. The railroad will review its own operating rules and, in many cases, issue a finding that you violated one or more of them.
This is the railroad investigating you instead of the accident.
The rule violation finding serves two purposes for the railroad: it disciplines the employee, and it creates a written record attributing the cause of the injury to the worker’s own conduct. That record then becomes a tool in the defense of your FELA claim.
What workers need to understand is that a rule violation finding does not bar a FELA claim. Under FELA’s comparative fault system, an injured worker can recover even if they were partially at fault — damages are reduced proportionally, not eliminated. The U.S. Supreme Court has confirmed that the same causation standard applies to both the railroad’s negligence and the employee’s contributory negligence; fault is apportioned, not used as a complete bar. Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158 (2007).
More importantly, the existence of a rule the worker allegedly violated does not excuse the railroad from its own independent obligations: to maintain safe equipment, to provide a safe workplace, to train workers adequately, and to enforce its own safety rules. A railroad that issues a safety rule and then systematically fails to enforce it — or that creates conditions where compliance is impractical — cannot hide behind that rule when a worker gets hurt.
And critically: where a railroad’s violation of a federal safety statute — such as the Locomotive Inspection Act or the Safety Appliance Acts — contributes to the injury, the worker’s own contributory negligence does not reduce the recovery at all. 45 U.S.C. § 53. In those cases, FELA’s comparative fault reduction simply does not apply.
How Railroads Fail to Preserve Evidence — and Sometimes Destroy It
Here is something that surprises many injured workers: the railroad that is conducting a thorough investigation of your conduct may simultaneously be doing very little to preserve the physical evidence that would show what actually caused your injury.
Equipment gets put back into service. Defective components get repaired or replaced. Track conditions get corrected. Surveillance footage gets overwritten on a rolling basis if no one requests preservation. Inspection and maintenance records that would show a known defect went unaddressed for weeks or months are sometimes difficult to locate — or conveniently incomplete.
In the most troubling cases, evidence disappears in ways that are not accidental. Spoliation of evidence — the destruction or failure to preserve evidence that a party knows or should know is relevant to anticipated litigation — is sanctionable conduct. Courts can instruct juries that they may draw an adverse inference against a party that destroys or fails to preserve relevant evidence. See Aloi v. Union Pacific Railroad Corp., 129 P.3d 999 (Colo. 2006) (adverse inference instruction affirmed where railroad destroyed documents relevant to FELA claim; railroad subsequently admitted negligence). Under Federal Rule of Civil Procedure 37(e), where a party fails to preserve electronically stored information that should have been preserved and acts with intent to deprive another party of its use, the court may instruct the jury that it may presume the information was unfavorable to that party.
But sanctions require litigation, and by then the evidence is already gone. The better approach is to move quickly to preserve evidence before it disappears — and to involve an attorney who can send a formal litigation hold letter before critical evidence vanishes.
Collecting Your Own Evidence — Before It’s Gone
You cannot rely on the railroad to preserve evidence in your interest. From the moment you are injured, you should be thinking about what evidence exists and how to capture it.
- Photograph everything you can, as soon as you can. The piece of equipment involved. The step, the grab iron, the surface, the ground. The scene of the accident. Your injuries. If you cannot do it yourself because you are hurt, ask a trusted coworker to do it immediately. Photographs taken the day of the accident are worth far more than anything taken weeks later after the condition has been corrected.
- Identify witnesses. Who saw what happened? Who was nearby? Get names and contact information. Coworkers who witnessed an accident sometimes become unavailable or reluctant to come forward later, particularly if they feel pressure from the employer.
- Request preservation of surveillance footage immediately. Railroad yards, shops, and facilities often have security camera systems. Footage is typically overwritten on a cycle of days to weeks. Your attorney can send a formal litigation hold letter demanding preservation — but this needs to happen fast.
- Keep records of everything related to your injury and treatment. Every medical visit, every bill, every prescription, every communication from the railroad or its claims department. Keep copies of any documents the railroad asks you to sign.
- Save any communications. Text messages, emails, or other communications with supervisors or coworkers about the accident, the equipment, or the conditions that caused your injury can be significant. Do not delete them.
Do Not Try to “Sleep It Off”
This bears saying directly: do not go home, take some ibuprofen, and see how you feel in the morning before deciding whether to report your injury or seek medical attention.
Workers do this for understandable reasons. They don’t want to make trouble. They’re worried about how management will react. They think it’s probably nothing. They’ve pushed through pain before.
The problem is that injuries that seem manageable the night of an accident — a stiff neck, a sore back, a knee that aches — can reveal themselves to be serious within days. A disc that is irritated tonight may herniate by the weekend. A concussion that feels like a headache can have consequences that last for months.
More importantly for your legal claim: a gap between the accident and your first medical visit is one of the first things railroad defense counsel will use to question the severity of your injury and its connection to the workplace event. “If you were really hurt, why did you wait four days to see a doctor?” is a question you do not want to be answering in front of a jury.
Additionally, the railroad can discipline, or even fire you, for failure to report your injury in a timely manner. Fighting these types of retaliatory charges can add stress to an already stressful situation
See a doctor the same day. Report your injury promptly and accurately. The railroad’s investigation has already started. Your protection of your own interests should start at the same time.
Do Not Give a Recorded Statement Without Talking to a FELA Attorney First
The railroad’s claims representative may contact you quickly — sometimes within hours of a serious injury. They will be professional and may seem sympathetic. They will ask to take a recorded statement about what happened.
You are not required to give one. And you should not do so without first speaking to a FELA attorney.
Recorded statements taken in the hours or days after a serious injury — when you are in pain, on medication, and still processing what happened — are routinely used to minimize claims. An experienced claims representative knows how to ask questions that elicit answers favoring the railroad’s narrative. A statement given before you fully understand the extent of your injuries or have had a chance to think carefully about the circumstances of the accident can follow your case for years.
Talk to a FELA lawyer first. It costs you nothing and protects everything.
The Causation Standard Favors Injured Workers — If You Have the Evidence
Under FELA, the railroad’s negligence need only have played “any part, even the slightest” in producing your injury. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506 (1957). The U.S. Supreme Court reaffirmed this standard in CSX Transportation, Inc. v. McBride, 564 U.S. 685 (2011), rejecting the railroad industry’s attempt to import a more restrictive proximate cause standard. This favorable causation threshold means that cases that might not survive under ordinary negligence standards can — and should — reach a jury.
But that standard only helps you if the evidence supports it. Physical evidence, witness accounts, maintenance records, and timely medical documentation are what translate the legal standard into a verdict. The railroad knows this, which is why its investigation begins immediately. Yours should too.
The Three-Year Clock Is Running — But So Is the Railroad’s Investigation
FELA gives you three years from the date of injury to file suit. But the railroad’s investigation is not on a three-year schedule. It is happening now, and every day that passes without your own evidence-gathering and legal representation is a day the playing field tilts further in the railroad’s favor.
The calls we get that are hardest to help with are the ones that come two and a half years after the injury, when equipment has long since been repaired, witnesses have moved on, surveillance footage is gone, and the railroad has had years to build its defense. The calls we can do the most with are the ones that come early.
