SSR 72-42: FEDERAL COAL MINE HEALTH AND SAFETY ACT -- SECTION 413(c) -- (30 U.S.C. 923(c)). -- FUTILITY OF FILING STATE WORKMEN'S COMPENSATION CLAIM WHERE BENEFITS ARE RECEIVED UNDER RAILROAD RETIREMENT ACT OR FEDERAL EMPLOYERS LIABILITY ACT
20 CFR 410.215
- Held, in the absence of concurrent, nonrailroad employment not subject to the Federal Employer's Liability Act (45 U.S.C. 51-59), it would be "futile" within the meaning of section 413(c) of Federal Coal Mine Health and Safety Act (30 U.S.C. 923(c)), for an employee subject to the former Act who is also a claimant under the latter Act, to file a claim under the workmen's compensation laws of his State. Further held, receipt of benefits from Railroad Retirement Board by a career railroad employee does not provide a basis for automatically determining that it would be "futile" for him to file a workmen's compensation claim under the laws of his State, but it justifies a further inquiry into whether the Federal Employers' Liability Act applies to the employee.
A question has been raised as to whether the receipt of benefits from the Railroad Retirement Board by a career railroad employee on account of pneumoconiosis would provide a basis for determining that it would be "futile" for such employee to file a State claim for workmen's compensation within the meaning of section 413(c) of the Federal Coal Mine Health and Safety Act of 1969.
Section 413(c) of that Act (30 U.S.C. 923(c)) provides that:
- No claim for benefits under this section shall be considered unless the claimant has also filed a claim under the applicable State workmen's compensation law prior to or at the same time his claim was filed for benefits under this section; except that the foregoing provisions of this paragraph shall not apply in any case in which the filing of a claim under such law would clearly be futile because the period within which such a claim may be filed thereunder has expired or because pneumoconiosis is not compensable under such law, or in any other situation in which, in the opinion of the Secretary, the filing of a claim would clearly be futile.
In adjudicating a claim for workmen's compensation under the laws of the State of Pennsylvania, the State workmen's compensation agency agreed that the claimant was totally disabled by silicosis. It also found, however, that the claimant was a railroad employee who had been engaged in interstate commerce during the course of his employment with an interstate rail carrier. Accordingly, the State workmen's compensation agency found that the employee was entitled to the protection afforded by the Federal Employers' Liability Act (45 U.S.C. 51-59) and that in providing for the compensation of railroad employees who are injured while engaged in interstate commerce, the latter Act of Congress preempted State legislation in this field. Accordingly, the State workmen's compensation agency held that: 1) the claimant's exclusive remedy was the Federal Employers' Liability Act; 2) the occupational disease act of the State of Pennsylvania did not apply; and 3) the claimant was therefore not entitled to benefits under State law. In support of its decision, the State workmen's compensation agency included a statement that:
- The Railroad Retirement Board reached the same conclusion by awarding him compensation for his total disability.
There is no question that where the railroad and the employee are engaged in interstate commerce, the Federal Employers Liability Act supersedes the laws of the several States insofar as they cover the same field. The Supreme Court of the United States has had several occasions to speak to this effect:
- And now that Congress has acted [i.e., by enacting the Federal Employers Liability Act], the laws of the states, in so far as they cover the same field, are superseded, for necessarily that which is not supreme must yield to that which is. Mondou v. New York N.H. & H.R. Co., 223 U.S. 1, 32 S.Ct. 169, 177 (1911).
- What constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027 (1949).
- [A question arising] under the Federal Employers' Liability Act raises a federal question to be determined by federal rather than state law. Congress in § 1 of the Act granted petitioner a right to recover against his employer for damages negligently inflicted. State laws are not controlling in determining what the incidents of this federal right shall be. * * * Manifestly the federal rights affording relief to injured railroad employees under a federally declared standard could be defeated if states were permitted to have the final say as to what defenses could and could not be properly interposed to suits under the Act. Moreover, only if federal law controls can the federal Act be given the uniform application throughout the country essential to effectuate its purposes. * * * Dice v. A.C. & Y.R. Co., 342 U.S. 359, 361, 72 S.Ct. 312, 314 (1952).
It is evident, therefore, that a railroad employee injured while engaged in interstate commerce is subject to the Federal Employers Liability Act to the exclusion of State workmen's compensation laws. Consequently, in the absence of some concurrent, nonrailroad employment not subject to the scope of that Act, it would be "futile" within the meaning of section 413(c) of the Federal Coal Mine Health and Safety Act of 1969, for such an employee to file a claim under the workmen's compensation laws of his State.
There is a further question as to whether it would be futile for a beneficiary under the Railroad Retirement Act to file a State workmen's compensation claim. This aspect of the inquiry apparently arises from the State workmen's compensation agency's reference to the Railroad Retirement Board, quoted above. Although it is not altogether clear, the State agency's decision might be understood as being based on the view that a railroad employee's having engaged in interstate commerce and having become totally disabled by occupational injury or disease, were prerequisites to being awarded "compensation for total disability" by the Railroad Retirement Board. Such an assumption, if in fact it existed on the part of the State agency, would not be correct. The Railroad Retirement Act of 1937 (45 U.S.C. 228a et seq.) is neither a workmen's compensation law nor an employer's liability act. Instead, it provides the type of income maintenance protection to railroad employees which Title II of the Social Security Act provides to most other nonrailroad employees, such as benefits during retirement due to disability or age, and survivors' benefits after the employee's death. In cases of disability generally, benefits are payable irrespective of the cause of the disability, and determinations are made on a basis of ability to engage in "any regular employment" within or without the railroad industry (45 U.S.C. 288b(a)(5)). The test of disability for this purpose:
- * * * is not whether he [the employee] is disabled for service in his usual occupation, but whether he is permanently disabled for any regular and gainful employment, within or without the railroad industry, which is substantial and not trifling. Aldridge v. Railroad Retirement Board, 285 F.2d 759 (5th Cir., 1961).
In the case of certain long-time employees with a "current connection with the railroad industry," however, it is sufficient for the employee to establish that he is disabled by whatever cause from performing merely his regular railroad occupation (45 U.S.C. 228b(a)(4)). Also see 20 CFR 208.10-208.17.
The Railroad Retirement Act and the Federal Employers Liability Act are two completely independent statutes. Legally, benefits under the former are completely unrelated to the recovery of a judgment for damages under the latter in a State or Federal court:
- * * * it would be highly improper for the disability pension payments [under the Railroad Retirement Act] to be considered in mitigation of damages [under the Federal Employers Liability Act] suffered by the petitioner. Thus it has been recognized that:
- The Railroad Retirement Act is substantially a Social Security Act for employees of common carriers. * * * The benefits received under such a system of social legislation are not directly attributable to the contributions of the employer, so they cannot be considered in mitigation of damages caused by the employer. New York, N.H. & H.R. Co. v. Leary, 204 F.2d 461, 468 (1st Cir., 1953) cert. denied 346 U.S. 856, 74 S.Ct. 71 (1953).
Eichel v. New York Central Railroad Co., 375 U.S. 253, 254, 84 S.Ct. 316, 317 (1963).
Accordingly, it is held that the award of a disability annuity by the Railroad Retirement Board does not constitute a determination whether or not the employee is entitled to the protection afforded by the Federal Employers Liability Act. The receipt of benefits from the Railroad Retirement Board by a career railroad employee on account of pneumoconiosis could not thereby provide a basis for determining that it would be futile for such an employee to file a State workmen's compensation claim within the meaning of section 413(c) of the Act. It could, however, justify a further inquiry into whether the Federal Employers Liability Act applies to the employee, in which case a basis could be established for determining whether the filing of such State claim would be "futile."
 This Federal preemption of matters relating to injuries of railroad employees engaged in interstate commerce may serve to deny a remedy to such employees. State workmen's compensation statutes provide for compensation without regard to questions of fault, such as the employer's negligence. The Federal Employers Liability Act, however, creates a right in the injured employee only when the employer is proved to have been negligent. Thus, where a railroad employee engaged in interstate commerce is injured, but negligence of his employer is not alleged or proven, the employee cannot recover under the Federal Employers Liability Act; the latter Act, however, continues to preclude resort to the State statute, under which a recovery might issue regardless of fault. See N.Y.C.R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546 (1916); Mastrandrea v. Pennsylvania R. Co., 132 F.2d 318 (3d Cir., 1942); Barry v. Reading Co., 147 F.2d 129, 130 (3d Cir. 1944), cert. denied 324 U.S. 867, 65 S.Ct. 912, rehearing denied 324 U.S. 891, 65 S.Ct. 1022 (1945). For a discussion of the informal, unofficial, and nonstatutory realities which mitigate the effects of this rule, see 3 J. Larsen, The Law of Workmen's Compensation §§ 91.76-91.77.