Robinson v. BNSF Railway Company
MEMORANDUM AND ORDER granting 26 Defendant's Motion for Summary Judgment. Signed by District Judge John W. Lungstrum on 10/4/2012. (ses)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
Case No. 11-2464-JWL
BNSF Railway Company,
MEMORANDUM & ORDER
Plaintiff filed suit against defendant under the Federal Employers’ Liability Act (FELA),
45 U.S.C. §§ 51-60, seeking compensation for carpal tunnel injuries he sustained as a result of
his work as a boilermaker for defendant. Defendant moves for summary judgment on the
grounds that plaintiff’s claim is barred by FELA’s three-year statute of limitations (doc. 26). As
explained in more detail below, the motion is granted.
The following facts are either uncontroverted or related in the light most favorable to
plaintiff, the nonmoving party. Plaintiff Darren Robinson is a 32-year-old male employed as a
boilermaker by defendant BNSF Railway Company in Topeka, Kansas. Plaintiff began his
work with defendant in 1997 as a laborer and, in 2004, became a boilermaker. In late 2006,
plaintiff began experiencing pain, tingling, numbness and loss of grip in his hands. Plaintiff
testified in his deposition that at the time he began experiencing these symptoms, he attributed
those symptoms to his work for defendant. He further testified that, in 2006, he did not attribute
the symptoms to carpal tunnel and he did not know what “the actual problem was.” According
to plaintiff, his symptoms continued “and then they finally took a rest and then it got worse to
the point where it was hard to do the job” and he “needed to find out what was wrong.”
Toward that end, plaintiff visited his family doctor, Dr. Eduardo Austria, in November
2007. When asked why he waited nearly one year to see a doctor about his symptoms, plaintiff
responded, “Because I, being twenty-nine, I really didn’t think, you know the old guys have it
and I’m thinking well, maybe, you know, I don’t know what it is, it’ll go away, it’s one of them
where you, I don’t want surgery any more than the next guy.” Dr. Austria discussed with
plaintiff the possibility that his symptoms were caused by carpal tunnel syndrome. Plaintiff
testified that he and Dr. Austria, at that time, discussed the nature of plaintiff’s work for
defendant. Plaintiff did not discuss any other activities with Dr. Austria that might cause or
contribute to plaintiff’s symptoms. Ultimately, Dr. Austria decided to pursue the possibility that
plaintiff’s symptoms were caused by carpal tunnel syndrome (CTS).
Dr. Austria referred plaintiff to Dr. Sankoorikal for an electromyographic (EMG) exam
of both hands. That exam was administered in late November 2007. The EMG showed no
evidence of CTS. Plaintiff visited Dr. Austria again on January 18, 2008. They discussed the
results of the EMG. Plaintiff was still experiencing tingling, numbness and weakness in his
hands. Dr. Austria ordered an MRI of plaintiff’s cervical spine to rule out cervical disk disease.
The MRI was performed on January 24, 2008 and the results were normal. Plaintiff returned to
Dr. Austria on January 31, 2008 and Dr. Austria referred plaintiff to Dr. Parminder Chawla, a
neurologist, for another EMG and a second opinion.
On February 12, 2008, plaintiff was evaluated by Dr. Chawla for his hand symptoms. Dr.
Chawla’s notes reflect that he and plaintiff discussed the nature of plaintiff’s work for defendant
and that plaintiff is required “to do a lot of wrist work” as a boilermaker for defendant. Dr.
Chawla ordered another EMG exam to rule out the possibility of CTS. On February 14, 2008,
Dr. Chawla interpreted the EMG and noted as follows:
Suggestive of bilateral carpal tunnel syndrome. Right slightly worse than left. Please
Although plaintiff testified that Dr. Chawla diagnosed him with CTS “in early ‘08” based on the
results of the EMG, he now contends that he was not diagnosed with CTS in February 2008
because the results of the EMG were only “suggestive” (meaning that he might have it but might
not) and that the results needed to be “correlated clinically,” meaning that the EMG results had
to be confirmed by physical examination. Nonetheless, Dr. Austria testified that plaintiff was
given a “working diagnosis” of CTS by Dr. Chawla in February 2008 for the purpose of sending
plaintiff to physical therapy and that he advised plaintiff of that working diagnosis in February
2008. On February 28, 2008, plaintiff began a six-week course of occupational therapy for his
injuries. When his condition did not improve, he returned to Dr. Chawla who referred him to a
Plaintiff filed his lawsuit on August 17, 2008. On September 3, 2008, plaintiff saw Dr.
Mark Barbadan, a surgeon. Dr. Barbadan concluded that the evidence of bilateral CTS in the
EMG was supported by symptoms and he recommended surgery. Plaintiff underwent surgery
on his wrists in October 2008 and December 2008.
Additional facts will be provided as they relate to the specific arguments raised by the
parties in their submissions.
Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In applying this standard, the court views the evidence and makes inferences in the
light most favorable to the non-movant. Kerber v. Qwest Group Life Ins. Plan, 647 F.3d 950,
959 (10th Cir. 2011). A dispute is genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party” on the issue. Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). Although the court views the evidence and draws reasonable
inferences therefrom in the light most favorable to the nonmoving party, the “nonmoving party
must present more than a scintilla of evidence in favor of his position.” Id. (quoting Ford v.
Pryor, 552 F.3d 1174, 1177-78 (10th Cir. 2008)).
“FELA permits railroad workers to recover for injuries caused by the negligence of their
employers or fellow employees.” Matson v. Burlington N. Santa Fe R.R., 240 F.3d 1233, 1235
(10th Cir. 2001). “To maintain a claim under FELA, the plaintiff must allege and prove that the
action was filed ‘within three years from the day the cause of action accrued.’” Id. (quoting 45
U.S.C. § 56).
To grant defendant’s motion for summary judgment, then, the court must
conclude both that the “statute of limitations has run” and that “there exists no genuine issue of
material fact as to when the plaintiff’s cause of action accrued.” Robinson v. BNSF Ry. Co., 412
Fed. Appx. 113, 115-16 (10th Cir. 2011) (quoting Fries v. Chi. & Nw. Transp. Co., 909 F.2d
1092, 1094 (7th Cir. 1990)). Given the three-year statute of limitations, plaintiff’s cause of
action is time barred if it accrued before August 17, 2008—three years before August 17, 2011.
“FELA does not define when a cause of action accrues.” Matson, 240 F.3d at 1235. In
Matson, the Tenth Circuit held that in “cases involving latent injuries which cannot be
discovered immediately or those where the injury has an indefinite onset and progresses over
many years unnoticed,’ the “discovery rule” defines when a FELA cause of action accrues. Id.
(quotations omitted). Pursuant to that rule, the “statute of limitations begins to run when the
plaintiff knows or has reason to know of the existence and cause of the injury which is the basis
of the action.” Id. (quoting Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d
963, 969 (10th Cir.1994)). “This rule imposes upon plaintiffs an affirmative duty to exercise
reasonable diligence and investigate the cause of a known injury.” Id.
In its motion, defendant contends that, even viewing the evidence in the light most
favorable to plaintiff, plaintiff undisputedly had knowledge of both the existence and cause of
his injuries no later than February 2008.
Defendant persuasively argues that the Circuit’s
opinion in Matson is factually analogous to the facts here and, thus, controls the resolution of its
motion. In Matson, the plaintiff Matson worked for BNSF as a locomotive brakeman and
conductor from 1974 to 1998. Id. at 1234. At an appointment with a doctor in February 1995,
he complained of multiple ailments, including what he described as chronic lower back pain. Id.
On April 21, 1995, he returned for a second visit, reported increased back pain, and shared his
belief the pain was “due to his work on the railroad.” Id. He and his doctor then discussed “the
relation of some of these symptoms or all of these symptoms possibly to some factors of
working on the railroad,” including Matson’s irregular work schedule, his positioning on the
locomotive and the length of time he spent in that position. Id. Seeking to avoid any invasive
treatment for his back condition, Matson began seeing a chiropractor on May 26, 1995. Id. The
chiropractor gave Matson a work status form on June 1, 1995, which stated that he was suffering
from work-related “repetitive vibration causing degenerative joint dysfunction.” Id. It was later
determined that Matson had a herniated and degenerated disc in his lower back, allegedly caused
by years of exposure to “whole-body vibrations” while riding on BNSF's locomotives. Id.
Matson filed his lawsuit on May 29, 1998, alleging that BNSF was liable under FELA for his
back injury. Id.
BNSF moved for summary judgment, asserting that the claim was barred by FELA’s
three-year statute of limitations because Matson knew or should have known prior to May 29,
1995, that his back injury was work-related. Id. The district court agreed and granted the
motion. Id. The Tenth Circuit affirmed the district court, concluding that Matson’s claims
accrued no later than April 21, 1995—the date by which Matson “knew about his back injury
and should have known that his employment with the railroad was a potential cause of that
injury.” Id. at 1236. As summarized by the Circuit:
He complained of “chronic” back pain during his February 1995 appointment and
attributed that pain to “his work on the railroad” at his second appointment on
April 21, 1995. Matson’s doctor similarly “started to draw an inference” during
the April appointment that the back pain was work-related, and Matson and his
doctor discussed the possible ways the pain could be connected to Matson’s
employment. By that date, Matson was on notice that his job was a potential
cause of his back injury. Armed with that knowledge, Matson had a duty to
exercise reasonable diligence and investigate whether this suspicion was correct.
Id. (citations omitted).
The court agrees that Matson strongly supports defendant’s motion. In this case, several
significant events occurred well outside the three-year window. In late 2006, plaintiff began
experiencing pain, tingling, numbness and loss of grip in his hands. He admits that, during that
time frame, he at least considered the possibility that his symptoms were related to his work for
defendant. In November 2007, plaintiff visited his family doctor for persistent symptoms and he
and his doctor discussed the possibility that his symptoms were caused by carpal tunnel
syndrome and discussed the nature of plaintiff’s work for defendant. Plaintiff and his doctor did
not discuss any other activities besides his work for defendant that might have caused his
symptoms. In mid-February 2008, plaintiff discussed with his neurologist the nature of his work
for defendant and received a “working diagnosis” of CTS . There is no evidence in the record of
any other activities that could have caused plaintiff’s injuries (or any discussions about other
possible causes) besides his work for defendant.
Plaintiff contends that there are disputed facts as to when he knew about both the
existence of his injury and the cause of his injury. According to plaintiff, he did not know about
the existence or cause of his injury until September 2008, when he received a diagnosis of CTS
from Dr. Barbadan. In support of these arguments, plaintiff does not attempt to distinguish
Matson and, instead, relies on cases from outside the Circuit—Mest v. Cabot Corp., 449 F.3d
502 (3rd Cir. 2006) and Williams v. CSX Transportation Inc., 2005 WL 1845173 (N.D. Ind. July
27, 2005). The facts of those cases, however, varied significantly from those presented here. In
Mest, the court held that the limitations period under Pennsylvania’s discovery rule may be
tolled if a plaintiff receives a definitive diagnosis that a plaintiff does not have a particular
disease, and thus that the defendant is not the cause of the injury. Id. at 511, 514 (emphasizing
that the important point is whether a doctor rules out the actual disease that would implicate the
Relying on Mest, plaintiff asserts that he received a negative diagnosis for CST in
January 2008 such that the limitations period did not begin to run until after his firm diagnosis in
September 2008. The court disagrees. In Mest, the plaintiffs continued to exercise reasonable
diligence to ascertain the cause of injuries sustained by their cows and no other evidence
indicated that the injuries were caused the by defendant until a subsequent diagnosis overturned
the initial diagnosis years earlier that had ruled out the specific disease that implicated the
defendant. Id. at 514-15. While plaintiff’s initial EMG was negative for CST, no medical
professional ever ruled out the possibility of CST and, in any event, additional evidence
suggested CST outside the three-year window. Similarly, no evidence in the record reflects that
anything other than plaintiff’s work could have been the source of his injuries, regardless of
whether those injuries were officially labeled as CST. As explained by the Third Circuit in
Mest, “a misdiagnosis does not relieve a patient of all responsibility in pursuing the cause of her
symptoms, and continued reliance on a misdiagnosis in the face of contrary evidence may be
unreasonable.” Id. at 514. In the face of ample evidence immediately following the negative
EMG that plaintiff was, in fact, suffering from CST (and, significantly, in the absence of any
suggestion that plaintiff might be suffering from some ailment that would not have been caused
by defendant), plaintiff cannot rely on his negative EMG to toll the limitations period.
In Williams, the district court denied the defendant’s motion for summary judgment and
concluded that the FELA statute of limitations did not begin to run until the plaintiff received a
diagnosis of CTS. Id. at *7. In that case, the only events that occurred outside the three-year
window were plaintiff’s complaints of numbness and tingling in his fingers; his doctor’s initial
suggestion that his symptoms were related to smoking cigarettes; and his doctor’s subsequent
diagnosis of tennis elbow. Id. at *2-3. Unlike plaintiff here, then, the plaintiff in Williams was
initially given diagnoses other than CTS, neither of which were job-related.
Id. at *6.
Moreover, there was no evidence in the record that anyone outside the three-year window ever
considered a diagnosis of CTS or made a connection between the plaintiff’s injuries and his job.
Id. at *3. Here, of course, plaintiff received a working diagnosis of CST back in February 2008
and was never given any information to suggest that the cause of his injuries might be related to
anything other than his work for defendant.
Plaintiff’s final argument is that defendant has mischaracterized plaintiff’s deposition
testimony that, back in November 2006, he attributed his symptoms to his work for defendant.
Plaintiff contends that this testimony is ambiguous as to whether plaintiff contemporaneously
attributed his symptoms to his work back in 2006 or whether he did so only in hindsight. While
the court believes that plaintiff’s testimony clearly indicates that he contemporaneously
attributed his symptoms in November 2006 to his work for defendant, the court would grant
summary judgment in favor of defendant even in the absence of plaintiff’s testimony. It remains
undisputed that plaintiff, in the context of assessing his injuries, discussed the nature of his work
with both his family doctor and his neurologist. The record does not reflect any other activities
or sources outside of his work that could have caused the pain, numbness and tingling in
plaintiff’s hands and plaintiff did not discuss any other potential causes with this physicians.
The court’s decision, then, does not hinge on plaintiff’s testimony concerning his subjective
beliefs in November 2006. See Robinson v. BNSF Ry. Co., 412 Fed. Appx. 113, 117 (10th Cir.
2011) (statute of limitations period governing FELA actions began to run when employee
reported neck and back pain and could not identify any other cause of injury).
Plaintiff has not shown any disputed material facts concerning his knowledge of the
existence or cause of his injuries. Plaintiff knew or should have known no later than February
2008 that his employment with defendant was a potential cause of his injuries. See Matson, 240
F.3d at 1236. Because his lawsuit was filed more than 3 years after that time, it is time-barred.
The motion for summary judgment is granted.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion for
summary judgment (doc. 26) is granted.
IT IS SO ORDERED.
Dated this 4th day of October, 2012, at Kansas City, Kansas.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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