Green, Debra A. v. CSX Transportation ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2037
DEBRA A. GREEN,
Plaintiff-Appellant,
v.
CSX TRANSPORTATION,
INCORPORATED,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Southern District of Indiana, Evansville Division.
No. 02 C 194—Richard L. Young, Judge.
____________
ARGUED DECEMBER 2, 2004—DECIDED JULY 8, 2005
____________
Before BAUER, POSNER and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Debra Green sued her employer,
CSX Transportation, Inc. (“CSX”), for negligence when she
sustained injuries to her shoulders while performing her job
duties. The district court granted judgment in favor of CSX
because Green failed to file her claims within the statute of
limitations. Because there are genuine issues of fact
relating to when Green sustained her injuries and whether
her employer was negligent, we vacate and remand for trial.
2 No. 04-2037
I.
Debra Green began working for CSX in 1979. Although
her job title changed over the years, Green has been a “util-
ity worker” since 1981. As a utility worker, Green cleans
and services locomotives. One of her job duties involves
loading sand into compartments on the locomotives in a
process known as “sanding.” When the locomotives are in
use, this sand can be released onto the tracks to provide
traction for the vehicle’s wheels. Most locomotives have two
sand compartments (known as boxes) with intake holes on
top of the car at the front and rear. CSX uses a gravity feed
system to load sand into the boxes. The system consists of
large hoses which must be placed into the locomotive’s
intake holes. The hoses are filled with sand and are typi-
cally heavy and awkward to handle. In order to sand a
locomotive, a utility worker positions the locomotive
beneath the gravity feed system, climbs a ladder attached
to the locomotive, and while holding the ladder with one
hand, uses the other hand to lift and guide the hose into
position. The worker then pulls a lever to release sand into
the box.
On January 18, 2000, Green was up on the ladder pre-
paring to sand a locomotive.1 She was holding onto the lad-
der with her left hand when she reached for the hose with
her right hand. As she began to lift and place the hose, she
felt pulling and pain in her right shoulder and upper back.
She immediately released her hold on the hose, climbed
down off the locomotive and went to the office to report her
injury. When filling out a CSX Unsafe Condition Report on
1
There is some question as to whether this incident occurred on
January 18 or January 19 because the reports filled out at the
time of the incident reflect both of these dates. Because the case
comes to us on summary judgment, we will use the date provided
by the plaintiff, who is opposing judgment. For the purposes of the
appeal, the one-day difference is irrelevant in any case.
No. 04-2037 3
the incident, she noted that the hose was too heavy and too
long, making it unsafe. After Green reported this incident
to CSX management, one of her supervisors, George Kendle,
filled out an “Employee Incident/Injury Root Cause Analysis
Report” (“Incident Report”) and also a “Mechanical
Operations Near Miss Report” (“Near Miss Report”). On the
Incident Report, Kendle listed “over exertion” as the
accident type. R. 35, Ex. 5. In response to a request to
describe the nature and severity of the injury, he reported
that Green had suffered “strain to right inner shoulder.” Id.
He described the sequence of events similarly to Green’s
report; she had been attempting to place the sand hose into
the intake hole of the sand box when she felt pain in her
right shoulder. He identified the “root cause” of the incident
as “pulling and lifting sand hose with one hand,” which he
explained was necessary because Green was using her other
hand to hold onto the ladder. He further explained that
because the sand fill on the rear of the locomotive was on
top of the car body and because the facility used a gravity
feed system to sand the cars, this was the only way to sand
the car. Id. On the Near Miss Report, he specified that
Green had been sanding the rear box of an engine when she
felt pain in her right shoulder. R. 35, Ex. 4.
Two days later, Green went to her family physician,
Theresa Beckman, for treatment. Dr. Beckman found that
Green had a reduced range of motion for her right arm
and was tender over the supraspinatus muscle of her right
shoulder. She diagnosed the injury as “acute supraspinatus
strain versus tear” and prescribed Vioxx, an anti-inflam-
matory medication, and Lortab, a narcotic pain medication.
R. 35, Ex. 8, at 21. Dr. Beckman referred Green to an
orthopaedic surgeon, Ronald Sowa. Dr. Sowa examined
Green on January 24. Dr. Sowa’s notes of that meeting
reflect that “Debra was at work a couple weeks ago at the
railroad yard holding up on a diesel engine with her left
arm reaching out with her right arm to grab something
4 No. 04-2037
when she felt a pain and pull in her shoulder.” R. 35, Ex. 8,
at 24. Dr. Sowa ordered an MRI of Green’s right shoulder
and prescribed a course of physical therapy. Green com-
pleted the physical therapy and continued to work as a
utility worker at CSX, but stopped working on July 21, 2000
on the advice of Dr. Sowa. Dr. Sowa performed surgery on
Green’s shoulder in August of that year, ultimately diagnos-
ing the problem as rotator cuff syndrome of the right
shoulder. R. 39, Ex. N. Following surgery, Dr. Sowa pre-
scribed another extensive course of physical therapy and
advised Green not to work until March 2001. All in all,
Green missed approximately eight months of work due to
this injury.
Green had reported some shoulder pain to other doctors
on other visits over the years. In 1988, she saw Dr. Randall
Oliver for pain in her left shoulder. Dr. Oliver noted that
Green also had a history of right shoulder pain when cold.
He diagnosed the problem as bursitis and prescribed
Tolectin DS, a non-steroidal anti-inflammatory medication.
Five years later, on September 13, 1993, she visited
Dr. Allega for head congestion and a cough. The diagnosis
was bronchitis and sinusitis. The main focus of the medical
record that day is on symptoms and treatment related to
that diagnosis but Dr. Allega also noted that day that Green
was “having some shoulder discomfort on the right side and
thinks she may have sprained the shoulder at work.” For
that visit, this single sentence is the only mention of
Green’s shoulders. She returned to Dr. Allega five months
later on February 25, 1994, for shoulder pain and intermit-
tent lower abdominal pain. In the clinic notes taken that
day, Dr. Allega reported, in relevant part:
Mr. [sic] Green is seen today with two problems. She
said that she is having right shoulder pain. She has had
no trauma. She does use the arm at work. She works on
locomotives for the railroad and also works at the
Sizzler.
No. 04-2037 5
EXAM She has some tenderness over the medial aspect
of the shoulder. Have not noticed any deformities. She
has full range of motion. Did not notice any crepitance.
A: Probable tendinitis [sic].
R. 39, Ex. J. For this problem, Dr. Allega prescribed
Voltaren, another non-steroidal anti-inflammatory drug. Dr.
Allega diagnosed the abdominal pain as menstrual cramps
and prescribed Voltaren for that pain as well. Green’s
medical records contain no other references to shoulder pain
until the January 18, 2000 injury that prompted this
lawsuit.
In 1997, one of Green’s co-workers, Keith Combest, sub-
mitted an informal complaint to CSX about the sanding
system. Combest’s handwritten letter stated, in relevant
part:
2nd shift hostler helper Debbie Greene [sic] also hostler
helper Nancy Hasslebrock also Kim Maddox & myself
Keith Combest have recently had some discomfort in
our right shoulder’s [sic], pretty much amazingly in the
same spot on our shoulder’s[sic]. Our sanding system
here is such that when you climb up on rear end of
eng’s you have to hang on with left hand & pick sand
hose that is full up with your right hand & arm about
a foot & put in hole.
R. 31, Ex. E. Combest went on to ask how much the hose
weighed when filled with sand. He inquired whether there
was a different way to hook up the hose, perhaps another
way to lift it in and out of the intake hole or whether a
counterweight could be utilized to ease the lifting of the
hose.
On October 15, 2002, Green filed a two-count complaint
against CSX under the Federal Employer’s Liability Act
(“FELA”), 45 U.S.C. § 51, et seq. Count I alleged that CSX’s
negligence caused injury to Green’s right shoulder in the
6 No. 04-2037
incident on January 18, 2000. Count II alleged that due to
CSX’s negligence, Green suffered injuries to both shoulders
as a result of cumulative and repetitive trauma during her
work for CSX. Green alleged that she became aware of
these cumulative injuries to both shoulders during the three
years prior to the filing of the complaint. CSX moved for
summary judgment on Count I in its entirety and on Count
II to the extent it pertained to Green’s right shoulder on the
grounds that those claims were barred by the FELA’s three-
year statute of limitations. The district court granted
judgment in favor of CSX on those claims, finding that
Green was aware of cumulative work-related injuries to her
right shoulder beginning in 1997, more than three years
before she filed this action against CSX. The parties
subsequently settled the remaining claim in Count II
related to cumulative injury to Green’s left shoulder. The
court then dismissed that claim, making the earlier partial
summary judgment a final, appealable judgment. Green
then appealed.
II.
On appeal, Green maintains that the district court erred
in granting judgment on Count I on statute of limitations
grounds because the injury she suffered on January 18,
2000 was a new and distinct injury and not merely a
progression or aggravation of prior injuries to her right
shoulder. She similarly argues that the district court erred
in granting judgment on Count II because she did not know
that she had suffered a cumulative injury nor that her
railroad employment was the cause of that injury until less
than three years before the filing of the complaint. We
review de novo the district court’s order granting summary
judgment, viewing the facts and making all reasonable in-
ferences that flow from them in the light most favorable to
the non-moving party. Corley v. Rosewood Care Center, Inc.
No. 04-2037 7
of Peoria, 388 F.3d 990, 1001 (7th Cir. 2004); Gil v. Reed,
381 F.3d 649, 658 (7th Cir. 2004). Summary judgment is
appropriate where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any
affidavits, demonstrate that there is no genuine issue of
material fact for trial and that the moving party is entitled
to judgment as a matter of law. Corley, 388 F.3d at 1001.
Section 1 of the FELA renders common carrier railroads
“liable in damages to any person suffering injury while . . .
employed by [the] carrier” if the “injury or death result[ed]
in whole or in part from the [carrier’s] negligence.” Norfolk
& Western Ry. Co. v. Ayers, 538 U.S. 135, 144-45 (2003); 45
U.S.C. § 51. Congress designed the FELA to “shif[t] part of
the ‘human overhead’ of doing business from employees to
their employers.” Ayers, 538 U.S. at 145 (quoting
Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 542
(1994)).
A.
We begin with Green’s claim in Count II for injury to her
shoulder caused by repetitive and cumulative trauma from
her job. The FELA provides that “[n]o action shall be main-
tained under this chapter unless commenced within three
years from the day the cause of action accrued.” 45 U.S.C.
§ 56. The district court noted that Green filed her suit on
October 15, 2002 and thus “must show that she first began
experiencing shoulder symptoms after October 15, 1999, or
did not suspect that her should[er] symptoms were related
to her railroad employment until after October 15, 1999.”
Entry on Defendant’s Motion for Partial Summary
Judgment and Motion for Leave to File Surreply Affidavit
(“Entry on Motion”), December 31, 2003, at 7. The court
found that Green “knew she had right shoulder problems as
far back as 1997, if not earlier.” Id. The medical records
from 1994 indicated that Green used her arm at work, the
8 No. 04-2037
court reasoned, and thus Green was aware that her prob-
lems could be work-related as of 1994. The court also found
that the 1997 letter from Keith Combest to CSX provided
evidence that Green knew she was having work-related
shoulder pain as of 1997 at the latest. The court concluded
that Green’s cause of action for cumulative injury accrued
as of 1997 and thus her 2002 complaint was barred by the
statute of limitations. Entry on Motion, at 9.
In an FELA case, a cause of action accrues for statute of
limitations purposes when a reasonable person knows or in
the exercise of reasonable diligence should have known of
both the injury and its governing cause. Tolston v. National
R.R. Passenger Corp., 102 F.3d 863, 865 (7th Cir. 1996);
Fries v. Chicago & Northwestern Transportation Co., 909
F.2d 1092, 1095 (7th Cir. 1990). The question here is
whether the evidence, read in a light most favorable to
Green, creates a genuine issue on whether a reasonable per-
son knew or with reasonable diligence should have known
before October 15, 1999 not only that she had suffered this
cumulative injury to her right shoulder but also that the
injury was caused by her work at the railroad. When the
specific date of injury cannot be determined because an in-
jury results from continual exposure to a harmful condition
over a period of time, a plaintiff’s cause of action accrues
when the injury manifests itself. Fries, 909 F.2d at 1094
(citing Urie v. Thompson, 337 U.S. 163 (1949)).
We believe that Green has sufficient evidence to create a
genuine issue of fact on this issue. Recall that the only
evidence of shoulder injury before that time were a few
references to shoulder pain in Green’s medical records and
a co-worker’s claim in a letter to CSX. Specifically, in 1988,
when Green sought treatment for pain in her left shoulder,
her physician noted that she also had a history of pain in
her right shoulder when she was cold. In 1993, Green went
to the doctor for head congestion and a cough. Her doctor
noted that she was “having some shoulder discomfort on the
No. 04-2037 9
right side and thinks she may have sprained the shoulder
at work.” The doctor diagnosed the problem as bronchitis
and sinusitis and treated those conditions and nothing else.
In 1994, Green saw her physician for right shoulder pain
and abdominal pain. That doctor diagnosed “probable ten-
donitis” and “menstrual cramps” and prescribed Voltaren,
a non-steroidal anti-inflammatory, for both problems. In
1997, her co-worker, Keith Combest, reported to CSX that
he and some of his fellow utility workers, had “recently”
experienced some discomfort in their right shoulders. He
noted they all felt this discomfort in the same spot on the
shoulder and that he tied it to the sanding system at CSX.
On only one of these four occasions did Green seek medical
treatment for right shoulder pain, in 1994 when she was
diagnosed as having tendonitis, a condition that was ap-
parently so mild that her doctor treated it with the same
anti-inflammatory he prescribed for menstrual cramps. On
none of these occasions is there evidence that Green suf-
fered the same injury or a precursor to the cumulative
injury she claimed in her complaint. And finally, there is no
evidence that any of these reports related to a right shoul-
der injury serious enough to put Green on notice that it was
time to sue her employer or lose her right to do so:
It is not the law that if you are scratched as a result of
someone’s negligence or other tort you must sue, even
though the scratch is trivial, against the possibility that
it might develop into something serious after the period
of limitations has run. “Presumably there is room for a
de minimis concept where there has been some tortious
impact but such inconsequential manifestations that a
reasonable person would not consider he was either
injured or that it was appropriate to make inquiry.”
Lancaster v. Norfolk & Western Ry. Co., 773 F.2d 807, 821
(7th Cir. 1985), cert. denied, 480 U.S. 945 (1987) (quoting
Nivens v. Signal Oil & Gas Co., Inc., 520 F.2d 1019, 1024
(5th Cir.) (modified on other grounds, 523 F.2d 1382 (5th
10 No. 04-2037
Cir. 1975))). Construing the record in favor of Green, her
shoulder pain prior to October 1999 may have been little
more serious than a scratch, failing to put a reasonable
person on notice that she had suffered a cognizable injury
and must sue or risk losing her right to do so. Her situation
is certainly distinguishable from that of the plaintiff in
Tolston. Tolston suffered from extreme, chronic pain in her
knee for six years before she brought suit. In fact, Tolston
had a total knee replacement more than three years before
filing suit for work-related injury to the affected knee.
Tolston, 102 F.3d at 866-67. In contrast, Green suffered
intermittent pain in her shoulder for which she sought
treatment on only one occasion without missing any work
prior to the January 18, 2000 injury. Green’s shoulder
issues were not on the same scale as Tolston’s knee prob-
lems and may not have been sufficient to put a reasonable
person on notice that she had suffered a cognizable work-
related injury. Green is entitled to have a jury decide
whether and when a reasonable person in her circum-
stances would have realized she had suffered more than a
de minimis cumulative injury to her right shoulder and that
the injury was work-related.
B.
We turn to Green’s claim for injury to her right shoulder
in the January 18, 2000 incident. This injury is subject to
the same statute of limitations that governs Green’s cumu-
lative injury. Again, the FELA provides that “[n]o action
shall be maintained under this chapter unless commenced
within three years from the day the cause of action ac-
crued.” 45 U.S.C. § 56. Although Green brought this cause
of action less than three years from the January 18, 2000
incident, the district court found that the injury Green sus-
tained that day was merely a progression or aggravation of
prior work-related injuries to her shoulder. The court noted
No. 04-2037 11
that Green was performing the same sanding work she
performed other times and was using the same equipment
she had previously used at the time of the injury. The court
concluded that “[a]lthough the pain she experienced on
January 18, 2000, was more intense in her right shoulder
than the pain she had previously experienced, this progres-
sion or aggravation of the cumulative trauma is not a
separable cause of action under the FELA.” Entry on
Motion, at 11. Because the court considered the January 18,
2000 injury a progression of earlier injuries, the court ruled
that Count I was barred by the three-year statute of
limitations.
Construing the record in favor of Green as we must on
summary judgment, Green suffered a new and distinct in-
jury on January 18, 2000 and the statute of limitations
clock was not triggered for this injury until that day. The
defendant points to no evidence in the record supporting the
idea that Green’s injury that day was merely an aggra-
vation of any prior injury. Instead, the evidence seems to
support the opposite conclusion. Green described lifting the
sand hose that day and experiencing a pain unlike any
other she had experienced in her work. She immediately
sought treatment and received a diagnosis different from
any prior diagnosis of shoulder pain. Her treatment con-
sisted of physical therapy, surgery and more physical
therapy, resulting in an eight-month absence from work.
CSX points to no other occasion where Green suffered an
injury to her shoulder so severe that she missed any work
much less eight months’ worth. Moreover, it is irrelevant
that Green was performing the same work she had been
performing for years in same manner and with the same
equipment at the time of her injury. This fact makes it no
more or less likely that the injury suffered was an aggrava-
tion or a new injury and in any case cannot be construed
against Green on summary judgment.
12 No. 04-2037
C.
CSX argues in the alternative that Green’s injuries were
not caused by its negligence and that the company is en-
titled to judgment on this basis as well. Because it granted
judgment on statute of limitations grounds, the district
court did not address this alternate argument. We may
affirm the judgment based on any ground found in the rec-
ord, and we therefore will address CSX’s argument, which
the parties have fully briefed in this court. The intent of the
FELA is to provide broad remedial measures for railroad
employees. Walker v. Northeast Regional Commuter R.R.
Corp., 225 F.3d 895, 897 (7th Cir. 2000); Williams v.
National R.R. Passenger Corp., 161 F.3d 1059, 1061 (7th
Cir. 1998); Fulk v. Illinois Central R.R. Co., 22 F.3d 120,
124 (7th Cir.), cert. denied, 513 U.S. 870 (1994). A railroad
will thus be held liable if the employer’s negligence played
any part, even the slightest, in producing the injury.
Walker, 225 F.3d at 897; Williams, 161 F.3d at 1061; Fulk,
22 F.3d at 124. A plaintiff’s burden in an FELA action is
therefore significantly lighter than it would be in an ordi-
nary negligence case. Williams, 161 F.3d at 1061; Fulk, 22
F.3d at 124. Indeed, some of our cases have noted examples
of FELA cases submitted to juries based upon evidence
“scarcely more substantial than pigeon bone broth.” Wil-
liams, 161 F.3d at 1061 (quoting Harbin v. Burlington
Northern R.R. Co., 921 F.2d 129, 132 (7th Cir. 1990)). As
light as this burden is, the plaintiff must still present some
evidence of negligence in order to survive a motion for
summary judgment. Walker, 225 F.3d at 897. Specifically,
the plaintiff must offer evidence creating a genuine issue of
No. 04-2037 13
fact on the common law elements of negligence, including
duty, breach, foreseeability, and causation.2 Williams, 161F.3d at 1062; Fulk, 22 F.3d at 124.
CSX argues that Green has failed to produce evidence
that the company breached its duty to its employees,
maintaining that it provided a reasonably safe method to
sand the locomotives. CSX asks us to discount the report of
Green’s expert, Sheree Gibson, a professional industrial
ergonomist. According to CSX, Gibson relies on circum-
stances that were not present the day of the injury. Gibson
opined that the sanding system presented two serious
safety hazards to workers: “the risk of a fall from the top of
the locomotive and the risk of a musculoskeletal disorder
such as shoulder strain, rotator cuff tear, or upper back
disorder from the need to apply high forces while in an
awkward posture (shoulder abduction).” She noted that this
posture occurred when lifting the hose into the fill spout of
the rear sand compartment of the locomotive. CSX com-
plains that Green was not “lifting” the hose at the time of
her injury but simply testified she was pulling the hose
toward herself. CSX also notes that Gibson initially applied
her opinion to wide-body locomotives and the engine that
Green was sanding was not a wide-body.
These arguments are both factually and legally faulty.
First, Gibson supplemented her report to specify that her
opinions applied to all locomotives, not just the wide-body
type to which she first referred in her report. Secondly, CSX
mischaracterizes the evidence regarding Green’s motions at
the time she was injured. She testified that she “reached out
2
Consistent with its broad remedial purpose, the FELA abolished
a number of traditional defenses to liability, including the fellow-
servant rule, contributory negligence and assumption of risk.
Williams, 161 F.3d at 1061. None of these defenses are at issue in
this appeal.
14 No. 04-2037
to get the sand hose to pull it towards” herself. When
questioned about what she meant, she confirmed that she
was guiding the sand hose into the intake hole at the time
of the injury. In the report she filled out for her employer at
the time of the injury, she stated that she was holding onto
the engine with her left hand and “reaching with [her] right
hand to lift up [the] sand hose and put [it] in the hole of the
engine.” By her account, she was lifting and pulling the
hose into the intake hole at the time of the injury. This
comports with the type of situation the expert opined was
a serious safety hazard. Gibson reported that, in her pro-
fessional opinion, Green was exposed to “unreasonable, un-
necessary, and hazardous levels of ergonomic risk factors
associated with lifting the sand hose.” Gibson went on to
list the particular hazards as well as the steps that CSX
could have and should have taken to minimize these risks.
This is more than enough evidence to overcome CSX’s
motion for summary judgment. Because Green provided
adequate evidence to survive summary judgment on the
statute of limitations issue as well as the negligence issue,
we vacate the judgment and remand the case for trial.
VACATED AND REMANDED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-8-05