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FELA’s Statute of Limitation for an Occupational Disease Claim Dates to When the Rail Employee Learns of the Work-Related Illness

Note: This information on how personal injury attorneys handle cancer cases involving rail employees is adapted from railroad injury/FELA attorney Rick Shapiro's July 2011 invited lecture to the American Association for Justice Railroad Law Section. Here, he shares his expertise on how the FELA statute of limitations affects occupational disease and wrongful death lawsuits for rail workers who developed cancers that can be caused by on-the-job exposures to carcinogens like diesel fumes, asbestos and radiation. Rick has represented FELA plaintiffs for nearly 25 years and, in 1999, coauthored the American Jurisprudence Trials volume titled Railroad Health and Safety: A Litigator's Guide.

The Federal Employers' Liability Act, or FELA, clearly states that an Amtrak engineer, CSX switchman, Norfolk Southern brakeman or any other rail employee for a railroad has 3 years from the date of his or her on-the job injury to file a lawsuit alleging negligence and seeking compensation for medical bills, lost wages and pain and suffering.

FELA also permits injury and wrongful death claims related to cancers or other occupational diseases that can be caused by workplace exposures to radiation, asbestos or toxic substances like diesel fumes. But since illnesses and the symptoms and disability they cause can take years or decades to develop and become obvious to rail employees and their doctors, the 36-month clock for filing legitimate claims for railroad occupational diseases does not begin ticking until a diagnosis of a work-related cancer or disease is made.

Decisions in two fairly recent cases clarified how the FELA statute of limitation is calculated when the issue is whether a railroad can be held liable for a current or former employees' health problems.

In Berlen v. Consolidated Rail Corp., 677 A.2d 1150, 291 N.J. Super. 542 (N.J. Super. A.D., 1996), justices ruled that

"the question of when a cause of action accrues, thereby commencing the statute of limitations period, is complex when the injury involved is an ‘occupational disease, as here, where symptoms do not immediately manifest themselves.' Williams v. Southern Pac. Transp. Co., 813 F.Supp. 1227, 1231 (S.D.Miss.1992). In Urie v. Thompson, 337 U.S. 163 (1949), the United States Supreme Court observed that the congressional purpose in enacting the FELA would be thwarted if a plaintiff were charged with knowledge of the slow progress of an injury or disease ‘at some past moment in time, unknown and inherently unknowable even in retrospect.' Id. at 169. Thus, the Court ruled that, where ‘the injurious consequences of exposure are the product of a period of time rather than a point of time ... the afflicted employee can be held to be "injured" only when the accumulated effects of the deleterious substance manifest themselves.' Id. at 170, (quoting with approval Associated Indem. Corp. v. Industrial Accident Comm'n, 124 Cal.App. 378, 381, 12 P.2d 1075 [1932])."

Later in their Williams decision, the justices for the NJ Supreme Court wrote, "A significant number of federal courts have interpreted Urie and Kubrick to mean that an occupational disease claim is deemed to accrue under the FELA when the plaintiff becomes aware or reasonably should have been aware of the critical facts of injury and causation."

A year later, however, Virginia's Supreme Court held in Gay v. Norfolk and Western Ry. Co., 483 S.E.2d 216, 253 Va. 212 (VA 1997) that an actual diagnosis, rather than suspicion, of a railroad work-related illness marks the beginning of the statute of limitations on FELA lawsuits. As the VA justices wrote,

"An employee's mere suspicion of an injury or its probable cause, standing alone, is not the operative standard for determining when a cause of action accrues under FELA. Rather, all the relevant evidence must be considered. In making this determination, several factors have been identified, including the degree of inquiry made by the employee, the number of possible causes of the injury, whether medical advice indicated no causal connection between the injury and the workplace. ... On remand, considering all the relevant evidence, if reasonable persons could disagree about when Gay ‘knew or should have known' that his injury was work-related, the issue should be submitted to the jury. It is improper, however, to resolve the issue solely on the basis that an employee suspected that his illness was work-related."

RS/EJL
Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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