Opinion
Case No. 3:01CV7376
August 30, 2002
ORDER
This is an FELA case in which the defendant has filed a motion for summary judgment. For the reasons that follow, the motion shall be denied.
Plaintiff Jack W. Daniels worked as a carman for several years for defendant CSX Transportation, Inc. Plaintiff claims that his duties as a heavy laborer caused occupational injuries, namely injuries to both rotator cuffs requiring surgery in 2000 and 2001.
Defendant seeks summary judgment on two grounds: 1) failure to file the complaint within the three year limitations period; and 2) failure to show negligence on the part of CSX.
With regard to the statute of limitations claim, defendant points out that plaintiff sought medical treatment in 1993 for pain in both his shoulders. He was diagnosed at that time with right shoulder tendinitis and left shoulder strain. His treatment lasted about two months, and he returned to work. Thereafter, he did not seek any medical treatment until the late Summer or Fall of 1999.
At that time, which is within the limitations period, the plaintiff complained of bilateral shoulder pain and weakness, which had been progressive for two years. Following an MRI examination, plaintiff was diagnosed with a full-thickness tear of the right shoulder and partial thickness tear of the left shoulder. At the time of this examination and evaluation, plaintiff was working as a yardmaster, rather than as a carman.
Defendant argues that plaintiff was aware in 1993 that his work was causing pain in his shoulders. This is true: but the condition, as diagnosed and treated at that time, differed substantially from the condition and treatment received beginning in 1999 and leading to surgery in 2000 and 2001. Tendinitis and strain are much milder, albeit potentially painful, conditions. They can be, and were, treated conservatively, and plaintiff returned back to work as a carman without surgery being recommended or performed.
In a word, plaintiff could conclude, as he did, that the doctor "had fixed me up." Plaintiff could also reasonably conclude that he had no grounds for relief under the FELA as a result of his rather mild and temporary condition.
This is true, even though the record shows that plaintiff continued intermittently to have shoulder pain that he attributed to his work on the railroad. Given the intermittent nature of the pain, and his ability to continue working despite that pain, plaintiff would not have had a cause of action at any time prior to 1999.
Thus, defendant's claim that the statute of limitations was not met is without merit. Defendant's more substantial contention is that there is insufficient evidence that plaintiff's injuries were occupational in nature. Defendant notes that the event leading to his seeing a doctor in 1999 was an effort to bend down to pick up a computer mouse that he had knocked off a desk. As he did so, he felt pain, and, according to his deposition testimony, his doctor believes that that motion caused his right rotator cuff to tear completely. A jury might find, however, that his reaction and sudden movement simply were the final insult to a shoulder weakened by his labor, and at risk of a rotator cuff tear.
Defendant also points out that plaintiff does not believe that any of the tools that he was given to use were defective. Though he described them as outmoded, he also stated that he had good tools that were not "really defective." Plaintiff's own inexpert assessment of the causal relationship between his tools and his injury is not, however, determinative.
Instead of relying on his own assessment of how the injury did or did not occur, plaintiff has submitted an expert's report. The defendant challenges the report on several grounds. I conclude, however, that the report, if credited by the jury, suffices to give it a basis for finding that plaintiff's injuries are the foreseeable result of the work he was assigned to do, and the conditions in which he was called on to do it. Defendant's objections go to weight, rather than admissibility.
In light of the foregoing, it is
ORDERED THAT defendant's motion for summary judgment (Doc. 26) be, and the same hereby is overruled.
So ordered.