Fletcher v. Union Pac. R. Co.

Decision Date26 June 1980
Docket NumberNo. 79-1472,79-1472
Citation621 F.2d 902
PartiesDonald D. FLETCHER, Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

John J. Higgins, Eisenstatt, Higgins, Kinnamon & Okun, Omaha, Neb., argued, for appellant.

Michael P. McReynolds, Legal Dept., Union Pac. R. Co., Omaha, Neb., argued, for appellee.

Before GIBSON, Chief Judge, * HENLEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Donald Fletcher appeals the judgment of the district court 1 that his personal injury claim against Union Pacific Railroad Company (the Railroad), under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., was barred by the FELA three-year statute of limitations. For the reasons discussed below, we reverse in part and remand to the district court.

Fletcher was employed by the Railroad as a sectionhand doing heavy labor. On March 22, 1962, Fletcher shoveled crushed rock for approximately forty-five minutes, under instructions to work as fast as he could. When the job was finished, he started to lay a shovel on the bed of the truck. He felt a sharp pain in his lower back and had to catch the edge of the truck to keep from falling. The foreman had Fletcher taken to the Union Pacific Railroad Employees Health Association (UPREHA) 2 Dispensary (the Dispensary). There he was examined by a physician, his back was taped, and he was given some pain pills and instructed to return in a week, which he did. For the next two months, Fletcher reported to work but was unable to carry on the activities of a sectionhand and was instructed to keep time records. Thereafter he was permitted to return to work.

It is undisputed that, since the injury on March 21, 1962, Fletcher has had a chronic back problem and has received extensive hospitalization and treatment. However, there is complete disagreement between the parties over whether and in what circumstances Fletcher reported to the Dispensary from 1962 to 1966. He says that he went frequently and was told that nothing was wrong with his back. The Railroad says that he did not see any physicians at all until he returned to the Dispensary of his own accord in 1966.

In any event, on February 24, 1966, Fletcher was referred to an orthopedic surgeon at the UPREHA ward for lower back pain. This doctor admitted Fletcher to St. Joseph Hospital (the Hospital) and diagnosed "lumbar disc syndrome." Fletcher's symptoms were treated conservatively, that is, with traction, bed rest and pain medicine. Upon his discharge from the Hospital, Fletcher was assigned to the same heavy work as a sectionhand that he had been doing when he injured his back on March 21, 1962. This pattern was to continue for the next several years, with at least four hospital stays and diagnoses ranging from "atypical disc syndrome" to "dorsal lumbar arthritis." 3

On June 18, 1973, Fletcher was readmitted to the Hospital by Dr. Bernard Kratochvil of the UPREHA ward who repeated a myelogram. The myelogram was within normal limits, and the diagnosis was "lumbar disc syndrome." However, for the first time, Fletcher was not released to work as a sectionhand. Dr. Kratochvil wrote a letter to the Railroad superintendent which said, "Because of his back condition I recommend Mr. Donald Fletcher be given less strenuous work." The letter, on UPREHA stationery, was dated July 11, 1973. Dr. Kratochvil's written recommendation was not followed by the Railroad. Fletcher was put back on as a sectionhand and remained on the job until he could not stand the pain any longer.

On December 7, 1973, Fletcher went on leave-of-absence status. He was then referred by the UPREHA district surgeon to a neurologist, who diagnosed "a chronic degenerative lumbar intervertebral disc or chronic lumbar strain."

In June 1974, the Railroad sent Fletcher to be evaluated for disability. Based solely on X-rays, these doctors decided that Fletcher was physically sound and rejected him for disability or retirement. Their report was made in early July 1974.

Coincidentally, in July 1974, Dr. Kratochvil told Fletcher he needed a fusion operation 4 for his "unstable back." Dr. Kratochvil testified that Fletcher's pain was precipitated by movement and that the purpose of the fusion operation was to decrease movement in the back and thus decrease the pain.

On March 4, 1975, Fletcher notified the Railroad that he was making a claim for his back injury and the claims agent took his statement. On March 15, 1975, the Railroad claims agent requested that Dr. Kratochvil send him all of Fletcher's medical records. Dr. Kratochvil's March 19, 1975, letter to the claims agent stated:

Mr. Donald Fletcher has continued under outpatient treatment following his back surgery in July, 1974. He will not be able to return to work for another thirty days because of the fact that he has had a back fusion. I would not recommend that he continue to do any work that requires heavy bending and lifting.

In an April 16, 1975, letter to the claims agent, with a copy to the Roadmaster, Dr. Kratochvil wrote, "I will not be able to release him to return to his present job as sectionman. We would like to get him back to work as soon as another type of work is available." On July 23, 1975, Dr. Kratochvil wrote of Fletcher, "He is being released today for temporary work as a Crossing Watchman." Since that date, Fletcher has worked occasional Sundays as a flagman and receives a $25-per-day disability supplement for days he does not work. 5

This suit was commenced on June 8, 1977. In a June 22, 1977, letter to the claims agent, Dr. Kratochvil said that "the lumbar strain was the result of years of heavy work." He set Fletcher's disability at 20%.

Fletcher brought this action pursuant to the FELA to recover for a work-connected back injury. After a bench trial, the court granted the Railroad's motion to dismiss on the ground that Fletcher's claim was time barred by the FELA three-year statute of limitations. The court assumed that Fletcher's cause of action accrued on March 21, 1962, and rejected Fletcher's contention that the Railroad was equitably estopped from asserting the statute of limitations. In so deciding, the court held: (1) the doctors who treated Fletcher were not agents of the Railroad, (2) their diagnoses of Fletcher's condition were neither misrepresentations nor misdiagnoses, and (3) Fletcher was not misled as to the nature of his injury or his ability to work. The court did not reach Fletcher's allegation that the Railroad negligently assigned him to work which was not within his physical capacity to perform with reasonable safety.

On appeal, Fletcher first contends that the court erred in holding that the Railroad was not estopped from asserting the statute of limitations. Fletcher claims that, because of the various and erroneous diagnoses of the UPREHA doctors, he was induced to delay taking appropriate legal action until after expiration of the statute. Therefore, by his analysis, the claim accrued only when he received the correct diagnosis and underwent surgery in 1974. The Railroad counters that, under the FELA, an employee's claim for a traumatic injury accrues at the time of the accident. The Railroad also denies that the doctors were its agents. Furthermore, the Railroad argues that, even if the statute were tolled by Fletcher's initial treatment at the Dispensary in 1962, the statute would have expired before Fletcher returned to UPREHA physicians in 1966.

The FELA provides that actions for injuries to employees must be brought "within three years from the day the cause of action accrued." 45 U.S.C. § 56. In cases involving traumatic injury, when the symptoms are immediately manifested so that the employee is aware of the event causing the injury, the cause of action accrues upon the occurrence of the injury, regardless of whether the full extent of the disability is known at that time. Brassard v. Boston & Main R. R., 240 F.2d 138 (1st Cir. 1957); Deer v. New York Central Ry., 202 F.2d 625 (7th Cir. 1953); Felix v. Burlington Northern, Inc., 355 F.Supp. 1107 (D.Minn.1973). By the same token, with industrial diseases, where the symptoms are not immediately manifested, the cause of action does not accrue until the employee is aware or should be aware of his condition. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Young v. Clinchfield R. R., 288 F.2d 499 (4th Cir. 1961). However, even in cases of traumatic injury, the statute of limitations is not inflexible but may be extended beyond three years for equitable reasons. Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). A railroad is equitably estopped from asserting the statute of limitations as a defense if misrepresentations by either it or its agent caused the employee's failure to bring his action within the three-year period. Fravel v. Pennsylvania R. R., 104 F.Supp. 84 (D.Md.1952) (fraud re diagnosis and legal rights). The railroad is equitably estopped even if the misrepresentations upon which the employee relied were unintentional. Louisville & Nashville R. R. v. Disspain, 275 F.2d 25 (6th Cir. 1960) (misdiagnosis); Mumpower v. Southern Ry., 270 F.Supp. 318 (W.D.Va.1967) (misdiagnosis); Tillery v. Southern Ry., 348 F.Supp. 9 (E.D.Tenn.1971) (legal advice). But the railroad's misrepresentations will not estop it from asserting the statute of limitations where a substantial period of time supervened after expiration of the delay caused by the railroad. Holifield v. Cities Service Tanker Corp., 421 F.Supp. 131 (E.D.La.1976) (delay even after surgery to correct the injury); 53 C.J.S. Limitations of Actions § 25. Likewise, a railroad is not estopped where the employee did not in fact rely on its misrepresentation. Holifield v. Cities Service Tanker Corp., supra, 421 F.Supp....

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