Ensign v. BNSF Ry. Co.
| Decision Date | 21 January 2014 |
| Docket Number | No. A-13-112,A-13-112 |
| Court | Nebraska Court of Appeals |
| Parties | RANDY ENSIGN, APPELLANT, v. BNSF RAILWAY COMPANY, A CORPORATION, APPELLEE. |
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Box Butte County: TRAVIS P. O'GORMAN, Judge. Affirmed.
Andrew Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, and Roger C. Denton and Elizabeth Wilkins, of Schlichter, Bogard & Denton, L.L.P., for appellant.
Nichole S. Bogen and Thomas C. Sattler, of Sattler & Bogen, L.L.P., for appellee.
Randy Ensign filed a complaint in the district court for Box Butte County under the Federal Employers' Liability Act (FELA) for shoulder injuries he sustained while working for BNSF Railway Company (BNSF). A jury trial was held, and the court granted BNSF's motion for directed verdict at the close of Ensign's case. Ensign appeals. Because Ensign failed to present sufficient evidence to support his claim that BNSF knew or should have known of a potential hazard in the workplace and yet failed to exercise reasonable care to inform and protect its employees, the district court did not err in granting BNSF's motion for directed verdict. Accordingly, we affirm.
In September 1990, Ensign began his employment with BNSF in Alliance, Nebraska, as an apprentice carman, training in multiple jobs. After the apprenticeship of approximately 60 days, he worked as a carman in the shop for 2 or 3 years. Thereafter, Ensign worked for about 15 years as an inspector and/or airman in the Alliance yard. Ensign then returned to the shop as a car mover until his report of injury in 2008. Carman duties were part of that position, which also involved driving cars in and out of the shop.
On August 1, 2008, Ensign reported to Andrew Callahan, a general foreman in the BNSF shop, that he had been to the doctor and needed shoulder surgery. A personal injury report was completed on August 1. Ensign eventually had surgery on both shoulders, and because of work restrictions, he did not return to work at BNSF.
Ensign filed a complaint in the district court on January 11, 2010, alleging that he was employed by BNSF between September 10, 1990, and July 29, 2008, and that he suffered injuries to his shoulders while employed by BNSF. Specifically, he alleged that throughout his employment, he was required to work in conditions which subjected him to frequent and/or repetitive stress, strain, impact, and jarring; to work with and lift, move, and carry heavy objects; and to otherwise engage in work activities requiring continuous, frequent, and/or repetitive use of his shoulders. Ensign alleged that BNSF was negligent and breached its duty to provide him with a reasonably safe workplace by failing to provide a reasonably safe place and conditions in which to work; failing to provide reasonably safe and adequate equipment to perform the work; failing to warn Ensign of the ergonomic dangers of his work and to perform an ergonomic risk analysis of his work; and failing to adopt, implement, install, enforce, and/or carry out safe customs, methods, procedures, and practices for inspecting, maintaining, and/or repairing its equipment and/or locomotives in an ergonomically safe manner. Ensign alleged that his injuries were due in whole or in part to one or more of these negligent acts or omissions, as well as other acts of negligence in violation of the FELA, and that he was unaware of the permanent nature of his injuries and the need for surgery or that his work at BNSF caused his injuries until less than 3 years before his complaint was filed. Ensign alleged that his shoulder injuries resulted in damages of severe pain and suffering, psychological and emotional injury, mental anguish and anxiety, medical expenses, and losses in wages, benefits, and earning capacity and that he would continue to suffer these damages.
BNSF answered, denying the cause of Ensign's injuries and denying that it was negligent.
A jury trial was held on January 28 through 30, 2013. The evidence included testimony from Ensign; Callahan; Tad Shallenberger, a carman in the Alliance shop; Danny Stefka, a carman supervisor in the Alliance shop; deposition testimony from Dr. Brian Scheer, an orthopedic surgeon; a vocational rehabilitation counselor; and numerous exhibits.
On August 1, 2008, Ensign went to Callahan's office and reported that he had been to the doctor and needed shoulder surgery. Ensign told Callahan he thought he had worn his shoulders out at work over time. Ensign had not reported any shoulder problems to Callahan or anyone else at BNSF prior to August 1. Based on this conversation with Ensign, Callahan understood thatEnsign had had a problem with at least one of his shoulders for over a year. According to Callahan, Ensign did not report the occurrence of a specific incident and did not identify a specific task, a particular tool, or a work process that was causing him injury.
The personal injury report, dated August 1, 2008, was received into evidence. In the report form, Ensign indicated that he first noticed symptoms "? 3 month ago" and that he was first treated or diagnosed in May 2008. He indicated that an MRI on July 29 revealed that both of his "rotator cup[s] [sic]" were torn. In the section of the form asking for a description of how the injury, illness, or condition occurred, Ensign wrote "deteriorated over time" and in the section asking about the type of medical attention administered, he wrote "exam & surgrie [sic]." Ensign checked "No" in boxes inquiring whether the accident was caused by the conduct of another person, whether he could have prevented his injury, and whether there were any defects, malfunctions, or problems with the equipment or work procedures.
A fitness for duty recommendation form from BNSF's medical department shows that as of August 1, 2008, Ensign had temporary restrictions of "no overhead work, no heavy lifting, [and] no repetitive movements" but was unable to be accommodated with those restrictions. This form also shows that he was scheduled for surgery August 13, would have a second surgery approximately 3 months later, and would be off work until cleared for return to work.
Callahan is responsible for receiving injury reports, and he investigates or has oversight of injury investigations. Callahan testified that because Ensign did not report a task or procedure in connection with his injury, there was nothing for Callahan to investigate. Callahan contacted the director of safety for the division to confirm that he did not need to investigate further, since there was no task identified in the injury report. Callahan testified that if there is a specific task identified as causing an injury, the railroad will attempt a reenactment with the safety assistant or any coworkers, determine whether there were any witnesses, and then "do an analysis [of] what we can do different to prevent it."
During his trial testimony, Ensign agreed that after he began experiencing problems with his shoulders, he never reported having difficulties with any of the tools or equipment he was using, he never inspected for or reported any defects related to his tools or equipment, he never requested different or alternative tools or equipment to perform his duties, and he never requested reassignment of his work duties to alleviate any of the shoulder problems he was experiencing at work. When Ensign was asked if he claimed that "every task of every job [he] ever did for the BNSF" contributed to his injury, he replied, "I'm not for sure what caused it."
Ensign, Shallenberger, and Stefka all testified consistently about the job requirements and duties of a carman. Daily tasks of a carman include changing brake shoes, changing out wheels and couplers, and repairing cars. These tasks involve, among other things, lifting, reaching, pulling, pounding, exerting force and pressure with the arms, some repetitive work, kneeling, and working in awkward positions. The work involves some use of heavy tools. Employees are not doing the same tasks over and over again in succession, because the work required on the cars that come in for repair varies. Not all of the carman's work is heavy-duty work, but it is a requirement to be able to lift. The carmen work at their own pace. Assistance with tasks is always available from coworkers, and equipment is available to aid in moving heavy objects.The carmen look out for one another, and safety is a primary concern. According to both Shallenberger and Stefka, the carmen in the Alliance shop are experienced and are well-trained and well-equipped by BNSF. Employees can request additional or different tools to do their jobs, and management is responsive to those requests.
Employees at BNSF in Alliance are required to undergo annual safety certification, which includes mechanical safety rules and instruction on proper lifting. Employees are informed not to manually strain themselves, and they are encouraged to bring any safety concerns to the attention of the supervisor. Annual safety audits are performed by the supervisors. BNSF has a safety assistant position, and according to Callahan, managers are always looking at the different tasks performed. In addition, systems safety initiatives are received from the corporate headquarters, which offer different tools and mechanical advantages for the tasks specific to the carmen, machinists, and electricians. These initiatives are reviewed to determine whether the tasks are being performed in Alliance and should be implemented.
The issues of ergonomics and cumulative trauma injuries were discussed at trial. Callahan testified that although there is no one specifically in charge of...
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