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

SSR 72-42

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:

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:

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:

t of its decision, the

State workmen's compensation agency included a statement that:

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:

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. [1] 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

e 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:

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:

Eichel v. New York Central Railroad Co. , 375 U.S. 253, 254, 84

S.Ct. 316, 317 (1963).

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:

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."

[1] 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

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.