Cumulative FELA Injury Claims
Gordon & Elias, L.L.P. is pleased to announce that, after years of contemplation, we have now decided to accept cumulative or repetitive trauma FELA injury claims. Like everything else we try to do, we wanted to wait to do it right. That time has come.
Gordon & Elias, L.L.P. is pleased to announce that, after years of contemplation, we have now decided to accept cumulative or repetitive trauma claims. Like everything else we try to do, we wanted to wait to do it right. That time has come.
Gordon & Elias, L.L.P. is able to represent any craft in any railroad in the United States for any type of cumulative/repetitive trauma injury. We are doing this with two "Of Counsel" relationships that we have reached with two of the finest, in our opinion, cumulative FELA trauma lawyers in the nation.
In the law, there has to be medical testimony in a personal injury claim. A FELA claim is, in essence, a personal injury claim. It simply is a claim brought under a federal statute whereas, for example, an automobile accident is not necessarily brought under a statute but it is brought under "common law" [in Louisiana it is brought under "Civil Law"]. The point is that it is a personal injury claim in the final analysis.
Because of the need of medical expert testimony in a personal injury claim, that testimony is subject to legal challenge. In the federal courts there is a legal/evidentiary threshold that an expert must meet called the Daubert [pronounced “DAW-BEAR” or “DAW-BEART” in some regions] standard. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court enunciated a rule that modified Rule 702 of the Federal Rules of Evidence as to expert testimony. There are many Daubert challenges that can be asserted to strike [or limit] an expert's testimony. One of which is that there is not sufficient scientific data that is usually and typically relied upon by other type experts [doctors] to support the expert's opinion and, therefore, the expert should not be allowed to testify. The Daubert case, and the line of cases that flowed from it, were meant to check "junk science" at the courthouse steps. Hence, when cumulative injury claims were first coming upon the scene there was scant little science to support the experts' opinions and some of them were stricken or their opinions were drastically limited. However......the times they are a changing! They are changing due to cumulative injury lawyers, ergonomists , vocational experts and some medical doctors that knew in their hearts that what they were seeing was real and kept on testing verifiable and reliable scientific data that supports what they have been saying all along. Literally, as I write this, the law is evolving case by case. Recently, there was a nineteen million dollar verdict swept away by an intermediate appellate court because the carrier, according to the appellate court, was deprived the opportunity to obtain a jury instruction/question on "other factors" that could have reasonably been the "medical cause" of the plaintiff's medical complaints.
Is there risk that one could lose? Yes. However, that risk is present in every case. At least now, because of the FELA cumulative trauma lawyer "pioneers", the risk is basically the same as a normal risk in a single event traumatic FELA claim.
The only "problem" in cumulative trauma claims is the carrier. They are generally not making any "reasonable" offers to settle the claim as they do in a properly worked up “single event” FELA case. Why? The answer is obvious: If they did, they are scared that all the people that have their bodies worn to the point that their cartilage is gone; or their spine is brittle and subject to major bone and disc problems; or they have irreparable pain from knee, shoulder, neck, hip and/or back problems would want to be compensated for what has happened to their bodies over the years. Hence, most serious cumulative injury or repetitive trauma claims need to be tried to a verdict. Any lawyer that advises you that you do not have a risk of losing in a trial, then I advise you to stand up and walk out of their office because they are being less than forthright with you. But, Gordon & Elias, L.L.P. is exceedingly proud to say that we have assembled a team of those "pioneer" lawyers and with the normal benefits that are associated with being a Gordon & Elias client, the cumulative/repetitive trauma client gets it all! In fact, it is literally getting two law firms for the price of one. The representation is still on a contingency fee: No Recovery, then you pay no fees or expenses.
Liability of the Railroads: The Carriers Knew They Were Injuring Their Employees the Whole Time
There are documents that reveal the major carriers knew and had actual knowledge, that the method of work that was taking place in the way their employees were working and performing their required tasks were injuring their employees. They stood silently and idly by watching this and did absolutely nothing to correct the situation or even warn their employees of these dangers. Even today, when faced with irrefutable evidence of their knowledge of these matters, they deny the effects of this wear and tear. They continually try to slough the injuries to hereditary factors or life style factors. This conduct is reprehensible and FELA law grants an employee rights to sue for just and fair compensation in these circumstances.
Whole Body Vibration or WBV FELA Claims
The “newest” area of cumulative trauma claims is the area of whole body vibration or WBV. Whole body vibration refers to the mechanical energy vibrations transferred via seats or platforms in trains, trucks or industrial vehicles. In basic English, it is a constant wear and tear of the body. Over time, WBV can result in severe injuries to the: ankles and feet, hips and knees, elbows and wrists, back and neck, and shoulders.
While railroad employees are susceptible to the damage of whole body vibrations by simply sitting on trains year after year, other tasks of their jobs – such as lifting or being positioned in an awkward posture – can significantly increase the risk of sustaining WBV injuries. In addition engineers that have performed continued coupling over years and years are prone to experiencing spinal injuries.
Given that whole body vibrations can affect many major parts of the body, these injuries vary greatly and may include: (1) joint injuries such as bursitis or tendonitis in the shoulders, (2) elbows, wrists, knees or hips; (3) neck injuries; (4) degenerated or herniated discs in the spine and repetitive stress injuries and (5) carpal or ulnar tunnel syndrome.
Railroad engineers, as well as other railroad employees who sit or stand for extended periods of time aboard locomotives, tend to have the highest risk of developing WBV injuries.
A railroad employee should seek help when they have symptoms of these conditions may include chronic:
• body aches
• burning or tingling sensation in the joints
• impaired range of motion and/or dexterity
• neck stiffness
• pain in the affected area that intensifies with increased activity
Railroad workers who start to develop any combination of the above symptoms should seek immediate medical attention for a proper diagnosis. Should a whole body vibration injury be diagnosed, it's essential to:
• Pursue all necessary treatments to prevent further health damage
• Consult with a FELA lawyer to find out if you are entitled to compensation under FELA
Over the years, FELA attorneys have recovered millions of dollars in settlements for victims of WBV injuries. Railroad companies regularly cited as defendants in WBV FELA cases include: Union Pacific [UP], BNSF, Canadian Pacific [CP], Metro-North, CSX Transportation, Norfolk Southern [NS], Kansas City Southern [KCS], Montana Rail Link, The Soo Line Railroad, CP rail, DM & IR RR and Amtrak
Coupling Injuries/Spinal Cord Injuries FELA Claims
Coupling injuries, also referred to as spinal cord injuries, occur when the sensitive fiber tracts inside of spinal vertebrae are damaged and interfere with the normal transmission of signals to and from the brain.
Coupling injuries develop as a result of repetitive trauma. Railroad employees are susceptible to incurring cumulative stress spinal cord injuries due to:
• long periods of sitting or standing
• the physical nature of the job (i.e. heavy lifting, having to assume awkward postures, etc.)
• the movement of the train, which causes whole body vibrations
The particular types of railroad employees who are especially susceptible to developing coupling injuries include: brakemen, Carmen, engineers, switchmen and conductors.
Shoulder & Arm Injuries Repetitive Trauma Claims
Repetitive stress injuries in the shoulders and arms are, unfortunately, extremely common among railroad employees whose job requires them to regularly: lift heavy objects, regularly put excessive strain on their shoulder joints (either by regularly lifting the arms overheard or taking regular blows to the joint) and those employees that constantly repeat the same arm movement fairly frequently in the course of their job duties. Railroad employees with the highest risk of developing shoulder and arm injuries include: brakemen, conductors, signalmen and switch pullers. These shoulder injuries may have the diagnosis of (1) Rotator cuff tears; (2) dislocated shoulder; (3) “frozen shoulder syndrome” where the development of scar tissue in the shoulder impairs movement and causes pain; and (4) shoulder impingement syndrome where the inflammation of the rotator cuff causes constant pain when the shoulder is raised.
Hand, Wrist & Elbow Cumulative Trauma Injuries
Certainly by far, the oldest and most recognized cumulative trauma claims in the railroad industry are to the elbows, wrists and hands. Commonly, these injuries include: carpal tunnel syndrome (CTS), stress fractures, and ulnar tunnel syndrome (UTS).
Cumulative Injury and/or Repetitive Trauma Statute of Limitations
In almost every cumulative trauma case the statute of limitations is an issue that needs to be addressed early on by the FELA practitioner. By its very definition, the injury has accumulated over time. Thus the prevailing test is whether the worker had a subjective knowledge that their injury was caused from work related causes. Interestingly, what has been a detriment in the past to “proving cumulative claims is actually a benefit to workers making a cumulative injury claim. What do I mean? Simply, orthopedic doctors that have seen patients and diagnosed rotator cuffs and disc herniations and the like, did not really know about these types of causes and, therefore, attributed them to “old age” or “hereditary traits”, etc. Therefore, when the medical records are retrieved, they often times do not demonstrate something similar to “Patient was advised that there diagnosis is from a work related event or events”. Be that as it may, the carrier ALWAYS tries to avoid liability on a statute of limitations defense.
Furthermore, as the medical science gets better know in the orthopedic practice community, good physicians will explore their patient’s type of work and, perhaps, conclude that it is, in fact, a work related issue.
Therefore, it is the advice of Gordon & Elias, L.L.P. that, as soon as you know of your injury or diagnosis, that you seek and get the advice of counsel.
ABOUT THE AUTHOR: Steve Gordon and R. Todd Elias
Gordon & Elias, L.L.P., represents clients in all aspects of personal injury and wrongful death. They are a boutique law firm with a nationwide practice focusing on FELA.
Gordon & Elias, L.L.P., was formed in 2000. Attorneys Steve Gordon and R. Todd Elias bring over 40 years of combined experience to the representation of their clients. The firm has the experience and resources to pursue recovery from large corporate defendants and/or their insurers.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.