By Marcell Owens, Owner, McCray Law Firm, PLLC · Houston, Texas
FELA vs. workers’ compensation is not a choice a railroad worker gets to make. It is a fact about which system already applies to them, and the two systems are built on opposite premises.
Workers’ compensation is a no-fault benefits system. An injured worker generally receives defined benefits without proving anyone was negligent, and in exchange gives up the right to sue the employer in tort. FELA is the opposite trade. The Federal Employers’ Liability Act, at 45 U.S.C. §§ 51 through 60, gives railroad employees a negligence lawsuit against the railroad — fault has to be proven — and in exchange opens the full range of tort damages and strips the railroad of the defenses it would otherwise have.
One system pays a schedule without an argument. The other requires an argument and pays what a jury finds.
At McCray Law Firm we walk through this comparison on the first call, because rail workers routinely spend the critical first weeks operating inside the wrong mental model. They wait for a benefits determination that is never coming, while the railroad builds its file.
The core difference: no-fault versus fault
Everything else in this comparison follows from a single distinction.
In a no-fault system, the question is whether you were hurt at work. Negligence is largely beside the point. The process is administrative, the benefits are defined in advance, and the trade-off is that the employee generally cannot sue the employer for the additional harm the schedule does not cover.
Under FELA, the question is whether the railroad was negligent. Section 51 makes a railroad carrier liable in damages to an employee for injury or death resulting in whole or in part from the negligence of its officers, agents, or employees, or from a defect or insufficiency in its cars, engines, appliances, machinery, track, roadbed, works, or other equipment due to the carrier’s negligence.
So FELA asks more of the worker on liability. It also gives back considerably more, in four specific ways.
Where FELA gives the railroad worker more
The causation standard is lower than ordinary negligence
Section 51 imposes liability where the injury resulted in whole or in part from the carrier’s negligence. The statute does not require the railroad’s negligence to be the sole cause or the dominant cause. Any contributing part is enough to reach liability.
Railroad injuries are almost always multi-causal — fatigue plus a defective handhold, short crew plus a rushed switching move, bad lighting plus worn ballast. A standard demanding a single dominant cause would defeat most legitimate cases. This one does not.
Assumption of risk is abolished
Under 45 U.S.C. § 54, the employee is not held to have assumed the risks of employment where the injury resulted from the negligence of the carrier’s officers, agents, or employees, and is not held to have assumed the risk where the carrier violated a statute enacted for the safety of employees.
The railroad cannot argue that you knew the work was dangerous when you signed on. Congress removed that defense in 1908.
Partial fault reduces the recovery instead of ending it — and sometimes does neither
Under 45 U.S.C. § 53, contributory negligence does not bar recovery. The damages are diminished by the jury in proportion to the amount of negligence attributable to the employee.
And then the provision goes further. No employee is held guilty of contributory negligence in any case where the carrier’s violation of any statute enacted for the safety of employees contributed to the injury or death.
That is the single most valuable sentence in the statute for a seriously injured worker. When a safety statute was violated and the violation contributed to the injury, the worker’s own conduct stops reducing the award at all.
The damages are tort damages, not a schedule
Because FELA is a tort statute, there is no benefit table. Recovery generally reaches past and future lost wages and lost earning capacity, past and future medical expenses, physical pain and suffering, mental anguish, and physical impairment and disfigurement.
Pain and suffering is the category that most distinguishes the two systems in practice. A scheduled benefits system generally does not pay it. A FELA jury can.
What any individual case supports depends entirely on the evidence, and no article — and no calculator — can tell you what a claim is worth.
Where FELA asks more of the worker
Honesty requires the other column.
You have to prove negligence. No fault, no recovery. That is a genuine burden, and it is why evidence preservation in the first weeks decides cases.
There is no automatic benefit while you build the case. A no-fault system starts paying on a determination. A FELA claim is a lawsuit, and lawsuits take time. Workers need to understand that timeline before they make financial decisions based on an expectation of quick payment.
It is adversarial from hour one. The railroad’s claim agent is not a benefits administrator. They are gathering information for a defense, and they are usually gathering it before the worker has spoken to anyone.
Benefits already paid can be credited. Section 55 voids any contract, rule, regulation, or device intended to let the carrier exempt itself from FELA liability — but the same section allows the carrier to set off against its liability any sum it contributed or paid to insurance, relief benefits, or indemnity for the injury or death. Payments received are not automatically free money on top of a recovery.
FELA vs. workers’ compensation, side by side
| FELA (railroad employees) | Workers’ compensation (generally) | |
|---|---|---|
| Legal basis | Federal: 45 U.S.C. §§ 51-60 | State system |
| Fault required | Yes — negligence must be proven (§ 51) | Generally no |
| Causation standard | Injury resulting in whole or in part from carrier negligence (§ 51) | Injury arising in the course of employment |
| Assumption of risk defense | Abolished (§ 54) | Not applicable |
| Effect of worker’s own negligence | Reduces damages proportionally (§ 53); eliminated where a safety statute violation contributed | Generally not a bar to benefits |
| Pain and suffering | Recoverable | Generally not payable |
| Who decides | A jury | Administrative process |
| Forum | State or federal court, concurrent jurisdiction (§ 56) | Administrative agency |
| Removal to federal court | Prohibited if filed in state court (28 U.S.C. § 1445(a)) | Not applicable |
| Deadline | Three years from accrual (§ 56) | Set by state law |
| Waivers of liability | Void (§ 55), subject to setoff for benefits paid | Not applicable |
The Texas wrinkle that does not apply to you
Texas is unusual among states in that private employers are generally not required to carry workers’ compensation coverage. An employer that opts out is a non-subscriber, and a worker injured while working for a non-subscriber may have a negligence claim against the employer rather than a benefits claim.
Rail workers sometimes read about this and try to map it onto their situation. It does not map. A railroad employee’s claim against the railroad is governed by the federal statute regardless of how Texas structures its state system. The non-subscriber framework is a state-law question about state-law employers.
Different statute. Different analysis entirely.
The comparison that does matter for other industrial workers runs the other way. A refinery or plant worker and a construction worker in Texas may be inside the state system, outside it as a non-subscriber claim, or holding a third-party claim against someone other than their employer. Those workers have questions to answer about which framework applies to them. A railroad employee does not — the answer is FELA.
And if you were not working at all — if you were struck at a grade crossing as a motorist or pedestrian — neither framework in this article is yours. That claim runs on negligence and federal crossing regulation, and we cover it separately in our guide to railroad crossing accidents in Texas.
The deadline difference, and why the longer one is not more forgiving
Section 56 provides that no FELA action may be maintained unless commenced within three years from the day the cause of action accrued. That is longer than the two-year period that generally applies to personal injury claims under Section 16.003(a) of the Texas Civil Practice and Remedies Code.
Workers hear “three years” and slow down. That is the wrong response, for a reason that has nothing to do with law.
Miss the deadline and the claim ends, no matter how strong the facts are. And well before that date, the proof degrades. Locomotives are repaired and returned to service. Track defects get corrected — which is good for safety and bad for evidence. Recorder and download data cycles. Crew members transfer, retire, and stop recalling the specific sequence of a specific move. Meanwhile the railroad’s own investigation was completed in the first days.
Cumulative conditions make the timing harder rather than easier. Hearing loss, repetitive trauma, and exposure-related illness raise accrual questions that turn on medical evidence and specific legal doctrine. If your condition developed over years rather than in one shift, when your claim accrued is a legal question. Do not calculate it yourself.
Which court hears it, and why that matters here
Section 56 gives state and federal courts concurrent jurisdiction over FELA claims. Then 28 U.S.C. § 1445(a) adds something unusual: a civil action against a railroad arising under 45 U.S.C. §§ 51-60 and brought in state court may not be removed to a federal district court.
Most defendants in most cases can move a lawsuit to federal court. A railroad facing a FELA claim filed in state court cannot.
Workers’ compensation has no analogue to this, because it is not litigation in the first place. It is one more way the two systems are not variations on a theme. They are different machines.
What we do differently because it is a FELA case
- We treat the first week as evidentiary, not administrative. Preservation demands go out for the equipment, recorder and download data, dispatch and radio recordings, track inspection and maintenance records, crew and hours-of-service records, and the railroad’s incident investigation file.
- We look for a safety statute violation before anything else, because Section 53 makes that finding capable of removing contributory negligence from the case.
- We handle the claim agent. You should not be giving a recorded account while you are still in treatment.
- We evaluate forum early, with 28 U.S.C. § 1445(a) in view.
- We review every payment and document the railroad has already offered, because Section 55 permits a setoff for benefits paid.
The full framework is laid out in our guide to FELA claims for Texas railroad workers, and the documentation side in our guide to what to document in a railroad worker injury claim.
Key takeaways
- It is not a choice. A railroad employee’s claim against the railroad is governed by FELA, not by a state workers’ compensation system.
- FELA requires proof of fault. Section 51 makes negligence the core question, which is the central burden the worker carries.
- In exchange, the defenses are gone. Section 54 abolishes assumption of risk, and Section 53 turns contributory negligence into a proportional reduction rather than a bar.
- A safety statute violation can erase the worker’s own negligence entirely under Section 53.
- Tort damages, including pain and suffering. There is no benefit schedule, and there is no cap set by a table.
- Three years, and it is not generous. Section 56 sets the period; the evidence disappears long before it expires.
- The railroad cannot remove a state-court FELA case under 28 U.S.C. § 1445(a).
Frequently Asked Questions
Can I choose between FELA and workers’ compensation?
No. If you are a railroad employee injured on the job, the claim against the railroad is governed by FELA under 45 U.S.C. §§ 51-60. It is not an election. Because the two systems function so differently — one administrative, one a lawsuit — knowing which one applies changes what you should be doing in the first weeks.
Is FELA better than workers’ compensation?
They are not comparable on a single axis. FELA requires proof that the railroad was negligent, which workers’ compensation generally does not. But FELA opens tort damages including pain and suffering, removes the assumption of risk defense under Section 54, and turns the worker’s own negligence into a proportional reduction under Section 53 rather than a bar. Whether a particular FELA claim produces a better result than a benefits schedule depends on the evidence of fault and the severity of the injury.
Do I get paid while my FELA case is pending?
FELA is a lawsuit, not a benefits program, so there is no automatic periodic payment built into the statute the way there is in a scheduled system. Any payments a railroad does make can be relevant later, because Section 55 permits the carrier to set off against its liability sums it paid toward insurance, relief benefits, or indemnity. This is a financial planning issue as much as a legal one, and it is worth discussing early.
Does it matter that Texas does not require employers to carry workers’ compensation?
Not for your claim against the railroad. The Texas non-subscriber framework is a state-law question about state-law employers. A railroad employee’s claim is governed by the federal statute regardless of how Texas structures its own system.
How long do I have, and is it really three years?
Section 56 requires a FELA action to be commenced within three years from the day the cause of action accrued. Identifying the accrual date is simple for a single traumatic event and considerably harder for cumulative conditions like hearing loss or repetitive trauma. Because the consequence of missing a deadline is permanent, confirm your date with a licensed attorney.
The railroad offered to cover my medical bills. Is that a settlement?
It may not be labeled one, and that is exactly why it should be reviewed before you accept or sign anything. Section 55 voids contracts and devices intended to exempt the carrier from FELA liability, but it also allows a setoff for benefits already paid. How a payment is documented has consequences for the claim, so the order should be legal review first.
What if I was partly responsible for what happened?
It does not end the claim. Section 53 provides that damages are diminished in proportion to the employee’s negligence rather than barred. And where the carrier violated a statute enacted for the safety of employees and that violation contributed to the injury, Section 53 provides that the employee is not held guilty of contributory negligence at all.
This article is for informational purposes only and does not constitute legal advice, and reading it does not create an attorney-client relationship. FELA is a federal statute, and deadlines and outcomes depend on the specific facts of each case. McCray Law Firm, PLLC is licensed to practice in Texas and is admitted in the U.S. District Court for the Southern District of Texas. If you believe you may have a claim, speak with a licensed attorney about your situation before any deadline passes.
About the author. Marcell Owens is the owner of McCray Law Firm, PLLC in Houston, Texas. He earned his J.D. cum laude from Texas Southern University’s Thurgood Marshall School of Law and has been licensed to practice in Texas since 2015. He is admitted in Texas and in the U.S. District Court for the Southern District of Texas, and was included in the Top 40 Under 40 National Black Trial Lawyers. He works with a team of attorneys handling personal injury and wrongful death matters across Texas.
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