Is this case a waste? (permanent injuries after contracting the mosquito-borne West Nile virus)

[Omaha Steve]

http://www.omaha.com/article/20091230/MONEY/712309943

By Joe Ruff
WORLD-HERALD STAFF WRITER

A Wyoming woman’s lawsuit accusing Union Pacific Railroad of not doing enough to protect her against mosquito bites isn’t as bizarre or frivolous as it might appear.

Vivika A. Deviney said she suffered permanent injuries after contracting the mosquito-borne West Nile virus in 2003 — and under federal law she has to sue the railroad to prove negligence in order to receive compensation for her injuries.

“This is her sole remedy,” said one of her attorneys, Richard Carlson of Minneapolis. “This is the only route she has.”

Deviney, 59, cannot perform her job as a conductor because of severe hearing loss, fatigue, vertigo, reduced vision and weakness in her left side, Carlson said. And she has not found other work.

A quirk not widely understood is that workers’ compensation laws, which generally ignore liability and pay injured workers for lost wages and medical expenses, do not cover railroad workers. Instead, Deviney and other rail employees are covered by the 1908 Federal Employers’ Liability Act (FELA), which requires workers to prove that their railroads were negligent before they can receive compensation for job-related injuries.

Another FELA case received attention in Nebraska this month when the Nebraska Supreme Court said a conductor who hurt his knee in Marysville, Kan., on his way into work could seek damages at trial because Union Pacific had encouraged its employees to use the alley in question and posted signs saying it was for railroad use only.

The Association of American Railroads, which represents Union Pacific and other railroad companies, has argued that the law sets up an adversarial relationship between employees and the companies they work for. The law is costly and outdated and should be replaced by a workers’ compensation system, the group has argued.

“Union Pacific believes this litigation process is harmful to the railroad industry and its employees,” U.P. spokesman Tom Lange said.

Worker unions tend to back FELA.

FULL story at link.