The purpose of this article is to make practical suggestions about handling cumulative trauma cases on behalf of railroad workers. My experience is primarily with east coast railroads, including Norfolk Southern and CSX, as well as Amtrak. I would note that an excellent general discussion of these claims was written by William Gavin of Illinois in a prior AAJ rail section newsletter. I will try not to cover the same ground and highly recommend anyone doing these cases to read that article entitled “Repetitive Trauma Claims Under The F.E.L.A.”
II.Use of Terminology
There are many ways that railroads and F.E.L.A. attorneys refer to the category of cases which I call cumulative trauma injury. The general category are problems with the railroad worker’s musculoskeletal system caused by repeated micro-trauma or physical stresses over time from excessive exertion, vibration, or awkward positioning at work. I try to remember always to stick to the term “cumulative trauma injury” because I think it is the most descriptive and has the most force in persuading a potential jury. Below are a list of other terms that are used and the reasons that I prefer to avoid them:
A) Repetitive Trauma Injuries – The problem is that railroad work is not an assembly plant job like a chicken processor, so the railroad will say that the job is not repetitive but involves lots of different tasks.
B) Cumulative Trauma Disorder – I do not find that the word “disorder” is as good as “injury” because injury has more emotional impact and disorder sounds like there is something genetically wrong with the person, rather than an external harm. Likewise, I avoid the term “syndrome” because that makes it sound like the doctors are not really sure what is going on.
C) “WORN” Cases – The CSX railroad sometimes uses this term, which I do not like because it implies that the worker just has degenerative arthritis or has gotten old and it is nobody’s fault.
D) Ergonomic Cases – This term is too fancy and the jury will not know what it means. Obviously, the awkward work positioning and the ergonomic experts are keys to these kinds of cases, but I do not think this is the best term to use.
III.Screening of Cases
As with any kind of personal injury case, case selection is critical. In the field of cumulative trauma cases, screening is extremely important because of the challenging nature of these files. The following is the general criteria used by my law firm:
A) The client should have had a surgery or be scheduled to have one in the near future. The way the railroads evaluate these case is in part based upon the number of “cuts.” Our requirement that the potential client have had a surgery ensures enough upside of the case that what you can recover for the client will be sufficient to justify the costs and effort in pursuing the file. As with every rule, there are always exceptions such as the client who has a spine problem with numerous injections but is not yet surgical.
B) Disqualification Cases v. Time Lost Only. We typically only will take a cumulative trauma case where it is a career ending injury, which has disqualified them from pursuing their old job on the railroad. The claims departments at CSX and Norfolk Southern will sometimes pay on a time lost case where the worker has only lost of period of time recovering from surgery but has gotten back to work. Sometimes it is not clear at sign-up whether the file will end up being a disqualification case, but if it ends up being just time lost, it is hard to get a good result for the client. The other problem with a time lost claim is that the release the worker has to sign at settlement may foreclose his bringing a further claim for that body part, if it ends up becoming a disqualifying injury in the future. The ideal scenario is the worker who has at least 20 years of railroad service, so that they can go out of service on occupational disability and you can pursue the cumulative trauma injury as a disqualification case knowing that the man has his Railroad Retirement Board occupational disability pension.
C) No Obvious Statute of Limitations Problem. You do not want a case where it is clear at the initial client interview that this claim is likely to be barred because of the F.E.L.A. three year statute of limitations. In a one time trauma case where the railroader is hurt on a particular day, the calculation of the three year statute of limitations is easy. With cumulative trauma cases, it is hard to know what exactly a judge will decide is the accrual date. The general rule is that you have to have filed suit within three years of the date that the client knew or should have known that they had an injury caused by their railroad work. Sometimes it will be obvious at sign-up that the client has been diagnosed with a problem in the body part in question more than three years ago and had full discussion with his physician as to the likely cause of the same. In that situation, you probably cannot help the worker.
Normally, the statute of limitations is difficult to determine at the initial client interview. Sometimes the client is not exactly aware of what is written in their medical records. The key dates to have in your checklist for looking at the statute of limitations include the date of the symptoms first appeared, the date of the first diagnosis, and the date, if any, that the doctor discussed with the patient the possible cause of the problem. No matter how good a historian your client is, you need to get the records as soon as possible to verify what is recorded by the health care providers.
IV.Theories of Liability
In this area of occupational illness claims, the liability is all about the exposure to the ergonomic risk factors. All of the various railroad crafts involve varying degrees of excessive, forceful exertion, awkward body postures, vibration, and risk for repeated microtrauma. The key is matching the injured body parts to the job. Although there are lots of combinations, the following are some typical scenarios:
A) Maintenance of Way worker with upper extremity injury like carpal tunnel injury. Maintenance of Way crews have some of the most physically challenging jobs on the railroad. Even when a worker is qualified on a particular machine, he is still likely to have to do laborer/trackman duties on a regular basis. Many of the machines that might be used by a trackman involve vibration, excessive, forceful activity and awkward postures whether using a hand tool like a spike maul or a hydraulic tool like a spiker. These workers are prone to problems with their hands, wrists and upper extremities from their work. Often the trackman are given unsafe, outdated or poorly maintained equipment to work with and reductions in crew size over time have increased the exposure.
B) Yard Conductor with knee problems. The exposures of a yard conductor include the bad walking conditions in the rail yard, like the wrong sized ballast rock and debris. The industry standards and the rules of most railroads indicate that the workers are to be provided with a smaller sized ballast stone in situations where they are going to be routinely walking. Historically, the railroads have failed to keep their yard ballast in good shape. Also, the railroad has over time changed its rules where they used to require workers to get on and off moving equipment. Today’s twenty year veteran will typically have worked during the time when men had to get on and off railcars in a way that the railroad has admitted by conduct and rule change was unsafe.
C) Road Engineer with back injuries. The vibration, slack action, and lateral movement to a engineer’s body is a typical exposure that can cause musculoskeletal problems. The chairs in locomotives are often unsafe, outdated, and poorly maintained. Bill Gavin in his article makes the strong point that you can try to make a Locomotive Inspection Act statutory violation out of problems in the cumulative trauma arena.
As the attorney, you need to fully investigate with the client how the particular body parts involved were hurt by the stresses of the railroader’s job. Generally, the railroader can answer a lot of these questions for you and make the necessary links. However, it is also important to be in touch with other railroaders on the same crew or craft to verify what the worker is telling you and to come up with additional theories of liability. Ultimately, it comes down to the ergonomist expert to prove at trial what the railroad did wrong. However, the more detail you have from the client, the better you can arm your expert. Even for those of us who have been doing railroad law for a long time, there are specific features of jobs at particular locations that may involve a machine or work task that is particularly dangerous and is different than other railroad worker’s exposures. Getting the details is essential!
V. Filing Suit
I file suit immediately when I take on a cumulative trauma case. My main reason for doing this is the statute of limitations. Prompt filing is an insurance policy for me that I have preserved the statute of limitations for three years back from the date of sign-up or very close to that. In my home state of Virginia, we are allowed to file the suit and not serve it for up to a year. Thus, I can preserve the statute of limitations but not have to necessarily move forward with active litigation until the case is ready.
The decisions about venue are similar in cumulative trauma as in any F.E.L.A. case in that there are often many options, both federal and state. Typically, there are several different states where you could file suit. Because cumulative trauma occurs in various locations over the course of a career, you can often have more venue choices than you would with a single traumatic event. For example, under the Virginia venue statute, permissible venue would include any place where the cause of action arose in whole or in part. As long as the worker did some work in a particular Virginia location, I can file suit there as an option. For a Maintenance of Way worker, this may be many different places. This does not necessarily solve the problem of a forum non conveniens argument made by the railroad. However, it does allow me to put some pressure on the railroads by having a venue selected, which I deem favorable initially. The right combination of plaintiff and venue can make all the difference, as shown by some of the big verdicts that were obtained in cumulative trauma cases against CSX in Baltimore, MD in the recent past.
VI. Deposition of Plaintiff
Some of the key ideas that need to be communicated with the client in preparation for their deposition in a cumulative case are:
A) The railroader needs to consider what he now sees in hindsight likely caused his injury is likely different from what he realized at the time it was happening. To some extent, this may involve attorney/client privilege and an appropriate objection may need to be made as the defense counsel probes how and when the client came to realize that his injury was caused by his railroad work.
B) The issue of the railroad’s negligence is probably not something that a cumulative trauma plaintiff is going to be able to articulate in his deposition. The railroader may be able to say a particular machine or work task was difficult and that there had been complaints about it. However, the clients need to understand that in the trial that liability proof will be by the ergonomist expert primarily and, therefore, they do not necessarily have to be able to pinpoint what the railroad should have done different because that is an area of expertise that only the railroad and a work study of the job could have revealed.
C) Make sure the client is prepared to explain that there is no average day on the railroad. The best way to describe the number of repetitions of a particular job function is to express it as a range like, “On the busiest days we would do it 20 times and the least busy day we might have to do it only twice.”
D) Just before we go into the deposition, I go over again with the client the date which would be three years before we filed suit. It is important that the plaintiff recognize the importance of that date. As with any deposition, make sure the client knows not to guess about some date. An innocent mistake about a date could end up later being used for a summary judgment motion on the basis of the statute of limitations or as a basis for attack on their credibility, if they are inaccurate.
VII. Deposition Check List
Below is the check list that I send to my cumulative trauma clients to help prepare them for deposition. Although it is not exhaustive, it does give the clients a good idea of the type of questions they will be asked in their deposition.
Memorandum to Cumulative Trauma Client
The following is a list of the probable topics that will be covered by the Railroad’s attorney when you give your deposition. Please look over the list carefully and be prepared to address these issues.
- work history
- percentage of time in various jobs
- what percent of the time do you spend doing various tasks, like walking on ballast
- what do you think on the job caused your injury
- frequency and extent of exposure (range from most to least)
- what exposure on “average” day (depends)
- number of people on crew
- other railroad activities bother you like climbing on the equipment
- how long have they had work saving devices like a brake stick
- do you think any of the equipment was broken or defective
- where exactly did you work (yard v. road)
- how long is your shift
- ever tell supervisors of repetitive injury or problem on job
- work “self-paced,” i.e. free to take breaks
- what did the Railroad do wrong
- did you ever make a complaint to the railroad
Possible Other Causes
- prior work before the railroad
- outside work beyond the railroad
- family situation
- family history of the musclo-skeletal problems, like arthritis
- military service
- other trauma or injuries
- did you ever play sports
- what is your height and weight
- any changes in the weight
- what hobbies do you have outside work
- have you ever done any of the following: automobile repair, motorcycles, yard work, farming, power tools, bowling, biking, golf, skiing, weight lifting, softball
- have you ever had any of the following medical conditions: arthritis, diabetes, gout, spine injury, kidney problems, vascular problems
- any drug or alcohol problems
- any other outstanding claims against the railroad or other body parts hurt
- Statute of Limitations
- when did you first know that your body part was injured
- when did you first have any symptoms in that body part
- first treatment
- prior problems with the same body part
- when did you first know that the injury to the body part was caused by work
- what have the doctors said about that
- when did you have pain at work
- why not go right to doctor with first pain
- union discussions of cumulative trauma
- are you back to work/last day worked
- how much time did you miss
- how are you currently
- is there anything you cannot do that you did before
- what were you earning per year
- interest in working now
- heard from railroad vocational rehabilitation department
- what do you do now daily
- retired v. occupationally disabled
- other sources of income
- how long did you plan to work
- what wages do you think you lost
VIII. Special Issues in Cumulative Cases
A) Information sharing among plaintiff’s side F.E.L.A. lawyers is essential. The experienced cumulative trauma F.E.L.A. attorney has got lots of documents used in past cases as to particular railroads and particular crafts. These would include internal railroad documents acknowledging the number of persons who have made claims in various years. The American Association of Railroad’s (AAR) documents also show the historic knowledge of the industry about musculoskeletal disorders from work. In order to fight the railroad’s obstructions to discovery, it is critical to help other practitioners to get information by using the AAJ rail law section list serve and similar methods to get and give information. Try to fight protective orders or confidentiality agreements which would prevent sharing data.
B) Work diligently with the ergonomists and doctors. I have found that orthopedists and neurosurgeons are typically more willing to agree that a worker was hurt through a series of cumulative traumas on the job than they are to attribute some aggravation of a pre-existing degenerative condition to one particular incident of trauma. The cumulative trauma theory fits the doctor’s idea of the natural history of musculoskeletal problems. This is especially true in light of the relaxed causation standard in F.E.L.A. where we only need to show that the railroad’s negligence was a cause in whole or in part of the cumulative trauma injury.
Ideally, the work up of the ergonomist should be done prior to going to meet with the doctor on causation. The ergonomist will be able to quantify and explain the nature of the physical stresses on the job better than the railroad workers themselves. If you have a doctor who is not familiar with the railroad work environment, having the ergonomist’s analysis done before you sit down with the physician will help to educate them and give them a feeling of a confidence in your competent representation of the patient.
VIII.The Future of Cumulative Trauma Injuries
For various reasons, including worker intimidation, the number of reported traumatic injuries has decreased over time. As the baby boom era railroad workers age, there will probably be more and more of these claims made. The cumulative trauma injury may become the bread and butter of F.E.L.A. practices in the future.