Railroad Accused of Manipulating Claims

Burlington Northern Santa Fe Corp. failed to protect workers from deafening job noise for decades and then duped 4,000 to 10,000 of them into settling hearing loss claims for less than $3,000 apiece, according to a lawsuit filed Monday in federal court in Minneapolis.

A separate lawsuit filed the same day in Seattle accused the railroad of colluding with union lawyers to keep hearing loss settlements at less than $65,000 and out of court in as many as 4,000 cases.

The lawsuits come one month after the U.S. Equal Employment Opportunity Commission charged BNSF--the nation’s second-largest railroad with substantial operations in California--with subjecting track laborers to genetic testing without their knowledge or consent as part of the company’s investigation of repetitive motion injury complaints.

BNSF declined to comment Tuesday on the Minneapolis lawsuit, saying it had not been served. When asked about the Seattle lawsuit, railroad spokesman Richard Russack said: “It appears to be a lawyers’ manufactured lawsuit, and it lacks merit.”

The Minneapolis suit describes an alleged scheme, which began in the late 1980s, to lie to and manipulate workers who claimed they were losing their hearing.

The railroad’s goal was to keep workers from hiring lawyers to negotiate or to sue over injuries similar to those that had resulted in trial awards of $50,000 to more than $1 million, said Steven Petersen, a Minneapolis lawyer who represented five workers named in the complaint.

“Some of these guys are profoundly deaf now,” Petersen said. “They sold their ears for 1,500 bucks. Who in their right minds would sell their ears for 1,500 bucks? It’s a travesty--a person with superior knowledge taking advantage of the little guy.”

The suit asks the court to declare the case a class action, which would expand its scope to include as many as 10,000 workers and retirees, he said. It seeks compensation of at least $50,000, plus punitive damages, for each worker.

According to the lawsuit, BNSF knew that excessive job noise could cost workers their hearing as early as 1966 but failed to protect them. Workers began complaining to the railroad that they were losing their hearing in the late 1980s.

“Concerned about the financial exposure associated with claims for hearing loss suffered by thousands of its employees, the defendant devised a series of fraudulent, dishonest and unlawful strategies, procedures and formulas for the valuation and resolution of hearing loss claims to minimize the compensation it must pay” workers, the suit said.

The railroad presented workers with schedules and matrices showing the maximum value of claims varying by workers’ ages and severity of loss, the suit said. In some cases, it said, railroad representatives told workers that the schedules followed nonexistent federal or American Medical Assn. guidelines.

Robert Cogger said that’s what happened to him. Cogger, who has been a seasonal track laborer for BNSF since 1976, said he believes the heavy machines he works near caused his partial hearing loss and the ringing and buzzing in his ears.

“The machines are very, very loud, and they are usually bunched up . . . so what you have is 10, 12, 15 machines going down the track within 15 feet of each other all the time, all day long,” said Cogger, 49.

The suit said Cogger filed a hearing loss claim with the railroad about 1994. He said he agreed to release the company from liability in exchange for $1,200.

Cogger said he thought the offer seemed low and tried to scare the railroad’s representative by suggesting he might see a lawyer. But he said the representative convinced Cogger that he wouldn’t get more money that way.

“I thought he was being honest, that he wouldn’t tell me anything that wasn’t true,” Cogger said. “Maybe I was naive, but I thought he was being honest.”

The suit said some workers were instructed to keep their settlements secret by railroad representatives, who explained “because I’m really taking care of you.” In a booklet called “If You’re Injured on the Job--Let Us Help,” workers were discouraged from hiring lawyers, it said.

If proved, such actions violate the Federal Employers Liability Act, which governs railroads, the suit said. The companies are self-insured and exempt from workers’ compensation laws.

In the lawsuit filed in federal court in Seattle, workers accuse the railroad of conspiring with Bricker, Zakovics, Querin, Thompson & Ritchey, a Portland, Ore., law firm that represents several railway unions, to cap settlements in more than 4,000 workers’ hearing loss claims. The law firm told Reuters that it had done nothing wrong and would vigorously contest the allegations.

The lawsuit said the company and the law firm used a secret “matrix” to assign maximum payout amounts of $65,000 for profound hearing loss, and less for other levels of hearing loss, the suit said. All claims were funneled through this matrix, the suit said.

Workers who took similar claims to trial won 10 times as much, said the suit, which named three workers and also seeks class-action status.

The suit also accused the law firm and the railroad of agreeing to prevent complaints from going to trial.