Alan R. Folkestad, and Cross-Appellee v. Burlington Northern, Inc., a Delaware Corporation, and Cross-Appellant

This is an action by an injured employee against his employer, the Burlington Northern Railroad, for damages under the Federal Employers Liability Act, 45 U.S.C. §§ 51 et seq. (1982). Judgment was entered in favor of the plaintiff in the amount of $490,000. Although both sides originally appealed, all of the issues raised in the employee’s appeal have been withdrawn by virtue of the parties’ settlement, and we decide only the issue raised in the railroad’s cross-appeal.

That issue is whether the district court properly refused to permit an offset of approximately $57,000 that had already been paid to the employee through the railroad industry’s health and welfare plan to which Burlington Northern was a party. The district court based its refusal upon its interpretation of section 5 of the FELA, 45 U.S.C. § 55 , a section which has spawned considerable litigation concerning setoff of benefits paid pursuant to this plan.

Section 5 provides:

All of the employee’s medical expenses incurred as a result of his industrial accident were paid through the health and welfare plan, administered by the Travelers Insurance Company, known as Group Policy GA-23000. The plan is financed wholly…