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For example, a baseball pitcher may wear out his throwing arm faster than if he didn't constantly do the same motion with that arm. In the on-duty work injury context, repetitive motion best describes what happens to a worker on an assembly line who is doing the same task, such as using scissors to cut open a chicken day after day after day. However, in the railroad context, I prefer the phrase cumulative trauma because the railroad tries to defend these cases by saying there are very few railroad jobs which are truly repetitious in the same way that a factory worker or baseball pitcher's job is.
The railroad's argument is that although a conductor may throw a number of switches each day, he isn't doing nothing but throwing switches all day. Likewise, they argue that although a maintenance of way worker may be walking on the big ballast walk much of the day, he is not walking all day. This argument by the railroad is really based upon a false premise that you have to be doing exactly the same thing in a factory assembly line fashion in order for your musculoskeletal system to give out. In fact, cumulative trauma is a better way to describe it because many actions of railroad workers, although not necessarily repetitive, do cause cumulative wear on a particular part of the body over time, particularly in light of a 20 or 30 year career.
Getting a doctor who is prepared to testify on behalf of his patient that the railroad work likely injured his body over time can sometimes be difficult. A lot of orthopedic doctors and neurosurgeons are not used to having to answer these kinds of questions on a daily basis. The general attitude of most doctors is I simply treat the disease; I do not worry about exactly how it arose. However, without the doctor's opinion that the railroad work caused the injury more likely than not, the plaintiff is not going to be able to get anywhere in court. The judge will only allow the claim to go forward if the doctor is willing to render this opinion on causation to a reasonable degree of medical probability. Thus, it is extremely important that the attorney handling such a case be knowledgeable about cumulative trauma and how to succeed in court. The main way that a lawyer will do this is to prepare the doctor by presenting enough evidence that they feel confident in rendering the opinion that the railroad work caused the cumulative trauma to the body part in question whether that be a back or a knee or a hip.
One of the main ways that we, at Shapiro, Appleton & Duffan, are able to prove to the doctor and, ultimately, to the court about the causal connection is by use of an ergonomist. An ergonomist is a scientist who has studied work tasks. Although not a medical doctor, the ergonomist can link particular actions at work to wear and tear on the body by showing how much pressure and force is necessary and exerted by a railroad worker to do different things. Typically, we would have an ergonomist go do a job study at the work site of the client to prove the exposure to cumulative trauma effects of the job on that person's body. The ergonomist can measure how much force is necessary to throw a typical switch with and without a proper bow handle. The ergonomist can measure how much force is necessary to apply a handbrake. The ergonomist can look at the ladders used to mount the train engines and cars to see how much wear and tear that would have on the transportation worker's body. Once this study is done, then the ergonomist report can be provided to the doctor, which, together with the patient's own history of his work, will typically help the doctor to render opinions which are reasonable and convincing.
Obviously, all of the expert testimony necessary in a cumulative trauma case costs money. It would not be uncommon for our law firm to spend $20,000.00 to put on such a case. This is not money that goes to the lawyer for his time, but rather is what we have to pay these various experts in order to properly prove this kind of repetitive injury case to win in court. Although the law firm will advance these sums for expert testimony on behalf of the injured worker, the money has to be reimbursed at the time of the resolution of the case. Thus, we typically are looking for a very severe injury requiring surgery before we can go forward with one of these cumulative trauma cases.
Also, we are typically looking for a worker who has been out on the job for a long time, typically over 20 years, so that we can be in the best position to prove the prolonged exposure to cumulative trauma and get the best economic result for the railroad worker. If the worker has his 20 years in, then he can get his occupational disability pension from the United States Railroad Retirement Board (www.rrb.gov) based upon not being able to do his old job on the railroad and anything we can get on the F.E.L.A. cumulative trauma claim becomes money in addition to that pension. To succeed in handling cumulative trauma cases the lawyer must be knowledgeable enough as to how to put the case on should that be required in order to make sure to get fair compensation for the client. Because we at our law firm know how to try the case in court if needed, we often do not have to and can settle the case before trial.