Medicare Set-Aside Blog on March 31, 2010
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The Federal Employers Liability Act (FELA), 5645 U.S.C. § 51 et seq. (1908) is an Act that protects railroad workers from on the job injuries. Originally enacted in 1908, the law was in response to the hazardous conditions railroad workers faced while constructing and operating the growing United States railroad network.


The job was so hazardous, President Benjamin Harrison remarked:


“It is a reproach to our civilization that any class of American workmen, should in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war.”


While I would argue that Railroad work is not quite as hazardous as the conditions that gave rise to the original law, it is still more dangerous than, say, preparing Medicare Set-Asides for a living.


In order to recover under FELA the worker must prove the employer legally negligent (which is a departure from the no fault nature of state WC statutes) and can than recover monies for pain and suffering and/or future medicals. Typically, these awards are much higher than in a similar workers’ compensation case assuming full negligence on the part of the employer can be demonstrated. But as in all matters involving the assignment of blame to an accident, it is easier said than done.


So with respect to MSP compliance issues, FELA cases should be treated like liability claims. Don’t make the mistake of preparing or accepting a WCMSA when FELA is involved.