Railroads, repetitive stress, and restitution

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Workplace safety

September 2011, Volume 47, No. 09

Railroads, repetitive stress, and restitution 

Matthew D. Shaffer

Railroad workers often suffer from repetitive stress injuries after years on the job. It's not easy to tie a railroad's negigence to this type of injury, but by focusing on the right issues, you can show that the employer should have maintained a safer work environment.

 

SIDEBAR

Supreme Court upholds long-standing FELA causation standard »
Courtney L. Davenport

Railroad workers’ injuries are compensable under the Federal Employers’ Liability Act (FELA) if they were caused by the carelessness of a railroad manager, supervisor, or employee, or by a defect in railroad equipment, property, tracks, or stores. In the case of a single-incident, catastrophic injury, establishing the railroad’s negligence is often straightforward. But if the worker suffers from a repetitive stress injury (RSI), it is far more difficult to show that the railroad employer’s negligence directly caused or created the workplace condition that contributed to the RSI.

A repetitive stress injury is caused by the repetitive use of a body part. In railroad work, this injury often occurs to the hands and involves vibrations or other stressors. A growing number of FELA cases are being classified as “repetitive stress injury,” rather than a single occurrence causing an injury, and seek compensation for wear and tear that has occurred over many years of railroad and rail yard work.

The worker does not, as commonly believed, have to be doing the same thing all day long every day for the RSI to be actionable. Much railroad work is not repetitive per se but does cause cumulative wear on a particular body part over time. Also, a worker’s job and age don’t always factor into whether a worker develops an RSI.

All orthopedic injuries could result from repetitive stress, but if a railroad worker comes to your office with a diagnosis of any of the following conditions, you should work up the FELA case as one involving an RSI.

  • tendonitis

  • bursitis

  • trigger finger

  • ganglion cyst

  • carpal tunnel syndrome

  • epicondylitis (tennis elbow)

  • tenosynovitis (inflammation of the synovium, the lining covering the tendons)

  • hearing loss

  • DeQuervain’s syndrome (tendonitis of tendons that control thumb movement)

  • chronic back pain

  • cumulative trauma disorder (a condition caused by repetitive stress, where a part of the worker’s body is injured by repeated overuse)

Plaintiffs suffering from these conditions typically argue that the degeneration of their body parts could have been prevented by modifying their work tasks. The plaintiffs allege that their employers should have made these modifications because they knew or should have known that workers were suffering from RSIs, but they chose to forego making modifications or even warning workers about the potential health risks that could be associated with their job duties.

Railroad workers of all types are exposed daily to risk factors that are generally recognized to cause orthopedic cumulative trauma injuries. The railroad industry knows about the many risk factors, yet it has not taken sufficient steps to diminish the hazards. Some of the more common culprits are awkward posture or positioning, standing still for an extended time, poorly designed equipment, repetition of movement, vibrations, exposure to extreme temperatures, bending over, and a lack of mandatory rotation of job duties.

Any job in the railroad industry has the potential to lead to an RSI. However, some of the more common causes are excessive switch flipping, walking ballasts (the raised beds on which the tracks lie) constantly, repairing railroad tracks, and carrying heavy items.

Making your case

Because an RSI case does not involve a single incident, which is typical in most personal injury cases, you must approach these cases differently. Start by looking at the types of jobs your client did, the number of years he or she worked, the type of equipment used to perform the job duties, and any relevant work conditions that may have contributed to the worker’s current medical condition. These might include the repetitive use of a certain tool, unsafe working conditions, and tasks requiring the client to remain in one position for a prolonged period of time.

The elements of your case are largely intuitive: The railroad has a duty of care to its employees to provide a safe place to work, the railroad breached that duty by making its workplace or work practices unsafe for its employees, and that breach harmed your client.

The most challenging aspect of your case will be proving that the employer deviated from the standard of care, using expert testimony on both workplace safety and ergonomics. Of course, this testimony must survive Daubert challenges.1 Then you must establish through medical expert testimony that these deviations caused the worker harm.

To show that the employer deviated from the standard of care, you must allege negligence. Fortunately for our clients, the Supreme Court in CSX Transportation, Inc. v. McBride recently upheld a diminished negligence standard for railroad employers in FELA cases—the “played a part—no matter how small . . . in bringing about the injury” standard.2 [See sidebar on next page.] Justice Ruth Bader Ginsburg reiterated that this test is “the test Congress prescribed for proximate causation in FELA cases.”3 The carrier will be liable for damages even if the extent of the injury or the manner of its occurrence are not probable or foreseeable.4

Despite CSX, and depending on the facts of your case, you will need to show that the railroad has both a history of unsafe work practices and that your client’s job duties required him or her to engage in such practices. Inadequate manpower, lack of supervision, and lack of training are all dangerous working conditions.

Many of the nation’s major railroads have made preventing injuries and diseases in the workplace one of their top priorities, because preventing injuries saves money. Because of this and technological advancements, railroad employee injuries have dramatically decreased since 1990, from 20,970 to 4,295 in 2009.5 Meanwhile, the number of trains and the miles they travel have increased.6

While the railroads have experienced an overall improvement in workplace safety, RSIs have become the fastest-growing occupational injury or disease in America. They now account for more than 60 percent of all occupational illnesses, afflicting an estimated 1.8 million American workers per year.7 Because railroads have fewer injuries to deal with and so large a portion of these injuries are RSIs, you can argue that they knew or should have known to adjust workplace standards to both prevent these injuries and create a safer workplace.

The employer can adjust its workplace environment primarily through the study and implementation of ergonomics. The employer should conduct an ergonomic assessment of a job or task that has caused multiple injuries. In their own training, railroads have noted that they must review all injury claims to analyze which tasks caused injuries so they could be changed.8 The failure to conduct a thorough ergonomic evaluation of the workplace puts employees at risk of permanent disability.

The railroads themselves have held seminars and conferences to discuss ergonomics in the workplace. In 1990, the Association of American Railroads (AAR) held seminars to explain how ergonomics could help railroads reduce on-the-job injuries for their employees.

At first, the major railroads were eager to learn about ergonomics, which the companies considered economically crucial. It was only after plaintiff attorneys used the railroads’ own materials against them in litigation that the discussion of ergonomics seemed to disappear from the railroad employer to-do list.

Now, the railroads have a limited number of job-related accidents to deal with, a majority of injuries are RSIs, and the training and information necessary to implement workplace changes. Their failure to execute appropriate studies and changes in railroad work become actionable.

In addition to making ergonomic adjustments, the railroads can provide additional workers to do tasks normally performed for hours at a time by one worker alone. They can also reevaluate the tools used to perform job functions to see if different equipment or a different use of the same equipment would reduce RSIs in workers.

Better safety training of all employees also helps reduce on-the-job accidents. You should allege the railroad defendant failed to adequately study and address these issues—and that this failure constitutes negligence under FELA.

For any job-related injury, the client must have a documented medical history of treatment. The medical records must show that your client’s injuries are related to the tasks he or she was performing for the defendant. For example, hundreds of track maintenance workers have developed carpal tunnel syndrome from repetitive use of their hands. Medical records from the treating physicians, surgeons, physical therapists, and hospitals should clearly state that the medical problems are directly related to the job tasks. Ideally, one or more of the client’s records will include such data.

Expert testimony

Experts in a variety of disciplines can be helpful in these cases.

Vocational and rehabilitation testing. If a doctor recommends surgery for a railroad worker because of repetitive stress injuries to a body part, a physician may advise the worker not to return to the same type of work that caused the injuries in the first place. If a doctor makes this recommendation, you should retain an expert in vocational and rehabilitation testing.

A vocational assessment will show the trier of fact your client’s current and future wage-earning capacity. This expert will review medical records, your client’s deposition, and any earnings history. The expert will perform vocational testing for career assessment and will detail how your client’s injuries have affected his or her ability to return to the workforce and at what detriment to his or her earning capacity.

Safe work practices or industrial safety. An expert familiar with railroad work and the applicable state and federal safety regulations is crucial to proving negligence. A former safety manager, compliance officer, Department of Labor employee, or other railroad worker with many years of experience could be a good pick.

The safety expert will analyze all relevant documents and photographs to determine whether the railroad was at fault. The expert will apply government regulations to your case’s facts and conclude whether the defendant acted appropriately.

For example, with regard to lower back injuries from lifting, a railroad safety supervisor could take pictures of how the tasks that caused injury were being done. He or she would need to analyze whether the staff complied with the National Institute for Occupational Safety and Health’s lifting criteria and guidelines on safe lifting weights and positions. Computer software is available that the railroad could use to evaluate lifting loads for repetitive lifting tasks. Employers can implement training on reducing the weight of objects or using lift equipment rather than workers.

Ergonomics. An ergonomist is an egonomics specialist who has analyzed and designed ergonomics safety programs, such as for an industry. This expert will evaluate whether the railroad has taken appropriate steps to help ¬prevent your client’s injury. Accepted ergonomic methodology includes a work site analysis along with assessments of hazard reduction, medical surveillance, and education and training.9

He or she will also investigate the railroad’s knowledge about the subject. The expert will look to both your client’s injury and other related, similar injuries that have been reported to determine whether the railroad should have linked stress with the client’s activity.

Most ergonomics experts agree that the science involves designing workplace tools and equipment to make them more user-friendly and safe for workers. The field involves not only changing equipment design or what equipment is used, but also changing work duties themselves to prevent repetitive stress injuries. Changing the way work tasks are done is considered an administrative change; changing the tool or equipment is an engineering change.

An ergonomics expert could testify, for example, about the design of locomotive cab seats and the railroad’s ability to reduce potentially harmful vibration that the seats transmit to the operators. This expert should also show the judge or jury that other industries have implemented successful ergonomic improvements that have significantly reduced similar repetitive trauma suffered by those in similar jobs. For example, a change in seat design for subway and bus drivers has helped with back pain and other occupational injury issues.10

Potential pitfalls

Frequently, when a railroad worker reports an injury to his or her employer that may be the result of cumulative trauma, he or she is asked to provide a recorded statement to a corporate representative and to complete a special cumulative trauma questionnaire as well as a standard personal injury report. Both of these investigative techniques by railroad employers create a plethora of potential landmines for the employee. For example, signing a statement that contains the railroad’s version of events can be akin to helping them deflect your allegations later on. You must make sure to obtain copies of all three and thoroughly review them while preparing your client for deposition.

Even though cumulative trauma claims are covered by FELA, the statute of limitations becomes harder to determine in a case of an RSI than it is in a typical single-incident trauma. The three-year statute of limitations, which applies to all FELA claims, can cause a cumulative trauma case to be dismissed, preventing an employee from pursuing his or her claim. The prevailing test is whether the worker had subjective knowledge that the injury was caused by tasks performed at work. Beware that the carrier will always try to deny claims for RSI based on the limitations defense. Overall, it is a best practice to file FELA RSI claims as quickly as possible to preserve the statute of limitations.

In addition to the potential for employer-generated “bad” evidence and statute of limitations issues, Daubert problems appear consistently in cumulative trauma railroad injury cases. Your experts must base their opinions on recognized methodology. Be sure to investigate whether your expert has made it past Daubert challenges in similar cases before retaining him or her.

Determining the venue for your RSI case can be challenging because all the incidents giving rise to your client’s injuries may not have occurred in the same location. Plaintiffs may have both federal and state venue options. Obtaining a desirable venue can make or break your case, so be sure to research and brief all available options, ultimately selecting the best choice for your client.

Proving your client’s damages can be challenging if the client remained at work through many years of the injury but only recently complained of it. You will have to show that the injury became progressively worse—that at one time the plaintiff was able to work through the pain but now cannot. A good medical time line from a medical provider who treated the client throughout the injury will go a long way in establishing the progression of this occupational injury.

By choosing the right experts and thoroughly analyzing the railroad’s practices and your client’s work environment, you can put your client’s best case forward in a newly burgeoning area of FELA practice. While the case law regarding RSIs is still developing, the practices mentioned here should help the practitioner build a solid case.

Matthew D. Shaffer is a partner in Schechter, McElwee, Shaffer & Harris in Houston. He can be reached at mshaffer@smslegal.com.

Notes

  1. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
  2. 2011 WL 2472795, at *8 n. 3 (June 23, 2011).
  3. Id. at *13.
  4. See e.g. Gallick v. Balt. & Ohio Ry. Co., 372 U.S. 108, 120–21 (1963).
  5. Research & Innovative Tech. Admin., U.S. Bureau of Transp. Statistics, Tbl. 2-44: Fatalities and Injuries of On-Duty Railroad Employees, www.bts.gov/publications/national_transportation_statistics/html/table_02_44.html.
  6. U.S. Dept. Transp., Bureau of Transp. Statistics, The Changing Face of Transportation 1–16, Rep. No. BTS00-007 (2000), www.bts.gov/publications/the_changing_ face_of_transportation/pdf/entire.pdf.
  7. Jason M. Solomon, Fulfilling the Bargain: How the Science of Ergonomics Can Inform the Laws of Workers’ Compensation, 101 Colum. L. Rev. 1140, 1141 (2001).
  8. The Association of American Railroads (AAR) provided handouts at seminars in 1990 and 1991. One example is Michael D. Shinnick, AAR Ergonomic Reviews, Tie Plate Lifting, Handbrake Operations, Yardmen Activities, Hand Switch Operations, Adjusting Drawbars, Heavy Industrial Corporations (1987–1994).
  9. Michael D. Shinnick & Martha J. Lanphear, Dynamics Research Group, Inc., An Expert’s Analysis of Daubert, www.drshinnick.com/RECENT_ PUBLICATIONS.html.
  10. See Steven Markowitz et al., The Health Impact of Urban Mass Transportation Work in New York City 61, 73 (July 2005), http://tinyurl.com/4xzrdpu.


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