Ragland v. BNSF Ry. Co.

Decision Date14 September 2016
Docket NumberNo. 08-14-00094-CV,08-14-00094-CV
Parties Willard Ragland, Jr., Appellant, v. BNSF Railway Company, Appellee.
CourtTexas Court of Appeals

Michael J. Craddock, Craddock, Reneker & Davis, LLP, Dallas, TX, for Appellee.

Kenneth Fenelon, Houston, TX, for Appellant.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

STEVEN L. HUGHES, Justice

Willard Ragland, Jr. sued his employer, BNSF Railway Company, under the Federal Employers Liability Act. Ragland claimed he suffered a work-related cumulative trauma injury to both knees that manifested in early 2010. He also claimed BNSF made a negligent work assignment to him on August 2, 2010, knowing that he was having issues with his knees that day. BNSF moved for summary judgment asserting that Ragland's cumulative trauma claims were related to an injury Ragland had suffered to his left knee in 2008 and were barred by the three-year FELA statute of limitations. BNSF also asserted Ragland had no evidence to support his negligent work assignment claim. We conclude the trial court properly granted summary judgment on Ragland's negligent work assignment claim, but erred in granting summary judgment on Ragland's cumulative trauma claims.1

BACKGROUND
Ragland's Claims

Ragland filed suit against BNSF on November 5, 2012. In his second amended petition, Ragland sought damages in excess of $4 million. Although his petition was not a model of clarity, the parties appear to agree the petition raised two separate causes of action under the FELA: (1) a claim for work-related cumulative trauma injuries to both knees that culminated in the two meniscus repair surgeries in August 2010; and (2) a claim for negligent work assignment based on BNSF's assignment of Ragland to work on a pregauger machine on August 2, 2010.

BNSF's Motion for Summary Judgment

BNSF raised two separate grounds for summary judgment. First, BNSF sought traditional summary judgment on the ground Ragland's "cumulative trauma" knee-injury

claims were barred by the FELA three-year statute of limitation because those claims accrued in June 2008 when Ragland was first diagnosed with a meniscus tear in his left knee. According to BNSF, this put Ragland on notice he was suffering the effects of cumulative trauma in both knees. Second, BNSF sought both traditional and no-evidence summary judgment on Ragland's negligent work assignment claim because Ragland had failed to inform BNSF that he was suffering from any knee problems before his work assignment on August 2, 2010, and because Ragland waited until late that afternoon to disclose his knee pain after it was too late to alter the outcome.

Ragland's Response

As to his cumulative trauma claims, Ragland responded that he suffered two separate knee injuries

while working for BNSF. The first involved a June 2008 acute injury to his left knee, which occurred while he was working as a truck driver for BNSF. The second—the subject of this lawsuit—involved an injury to both knees that resulted from cumulative trauma that first manifested itself in early 2010 while he was working in BNSF's "maintenance of way" division. As to his negligent work assignment claim, Ragland contended the summary judgment evidence raised a fact issue that BNSF's supervisors continued his injurious assignment on August 2, 2010, even after learning the assignment was causing Ragland severe knee pain.

The Summary Judgment Evidence
The 2008 Left Knee Injury

On June 26, 2008, Ragland stepped out of a BNSF truck he had been driving, heard a "pop," and felt a pain in his left knee. Ragland was seen that same day by a doctor, who initially diagnosed Ragland with an "[i]nternal derangement of left knee." When Ragland's symptoms did not improve, the doctor ordered an MRI, which indicated Ragland had a tear in the medial meniscus

of his left knee.2 Ragland underwent arthroscopic surgery to repair the meniscus tear in July 2008, followed by several weeks of rehabilitation and physical therapy. The operative report indicates the 2008 surgery was successful, and after completing all required treatment, Ragland's doctor released him to work "full duty," without restrictions in September 2008.

Ragland worked directly with BNSF to settle his claim for the 2008 injury, and signed a release waiving any additional claims arising out of the "accident of June 26th, 2008[.]" During his recorded interview with a BNSF Claims Representative on October 1, 2008, in which the release was discussed, Ragland stated that he had no complications from the 2008 surgery and had "[n]o pain at all" in his knee. He informed the representative, however, that he experienced a "little soreness every once in a while," which he believed was normal post-surgical pain. Ragland also informed the Claims Representative that he had been back at work for three weeks at the time of the interview, and that he believed he would have no issues being able to perform his job satisfactorily.3

Events Leading Up to August 2, 2010

After the October 2008 interview, Ragland did not complain to any medical professionals that he was suffering from pain in either of his knees until February 26, 2010, when he first presented at the Electra Medical Clinic, complaining of pain in his right knee only. The doctor's notes indicated that Ragland reported his right knee the pain was "chronic" and that it had "recently worsened" and felt as if it was "going to buckle." A subsequent MRI of Ragland's right knee, performed on March 11, 2010, revealed a tear in the medial meniscus

in the right knee.

Ragland returned to the same clinic on July 26, 2010, complaining of "bilateral knee pain." During that visit, Ragland reported for the first time that he had pain in his left knee, informing the doctor that he had "re-injured" that knee while "squatting" on an unspecified date. Ragland further complained that his right knee was "gradually getting worse." The doctor's notes from that visit reflected that, although Ragland's March MRI report indicated that surgery was necessary to repair the meniscus tear

in his right knee, Ragland was unable to "take off" from work until November, at which time he intended to schedule the surgery.

Ragland acknowledges that he intentionally delayed having the surgery because his "plan was to just get through to layoff season" before scheduling the surgery, and to then "[t]ake the lay off" and not bid on any other jobs until after he healed from the surgery. In the meantime, Ragland intended to bid only on jobs he believed would not cause further pain or damage to his knees. In particular, he intended to target jobs in which he could operate machinery from a seated position so that he could be off his knees.

The August 2, 2010 Job Assignment

In July 2010, Ragland bid for and received a two-week temporary assignment on a rail gang to perform maintenance along the tracks near Sherman, Texas beginning August 2, 2010. Ragland believed he had been assigned to a seated machine that would not cause further strain to his knees. When he arrived at the job site that morning, however, the foreman, who had never met Ragland before and did not know his medical history, assigned him to operate a "pregauger" machine that required Ragland to walk alongside the machine on the ballast or ties of the railroad tracks. Ragland does not dispute that the foreman had the right to assign him to a different machine that morning. He further acknowledges that he could have objected to the assignment to either the foreman or the other supervisor at the job site, Assistant Roadmaster Adam Bankston, but that he chose not to do so because he was concerned that if he did object, he might be sent home without pay.4 When first assigned to the pregauger machine, Ragland did not tell either the foreman or Bankston that he had been experiencing any problems with his knees or that he had any other physical limitations that would cause him difficulties in operating the machine.5 Further, the record reflects that neither the foreman nor Bankston had any record of Ragland's medical history at the job site, and had no way of knowing about his prior knee surgery because Ragland had no active work restrictions in his file at that time.

Ragland admits that he operated the pregauger machine, without complaint or objection, from approximately 4 a.m. until at least 10 a.m., when the crew took their lunch break. Ragland claims that either shortly before or during the lunch break, he told Bankston, and another supervisory employee, Assistant Director of Management Production (ADMP) Matthew Keller, that he was having "severe pain" in his knees from operating the pregauger machine, and that the machine was causing his knees to "kill" him. Ragland further contends that he informed Keller that he had been recently diagnosed with a torn meniscus

in his right knee and that he was awaiting surgery to repair the tear. Ragland asserts that the two supervisors nevertheless advised him to continue working, which he did until approximately 12:30 p.m., when he claims he stepped in a hole that had been dug out by a piece of railroad equipment along the gang line. Ragland contends this caused him to have such severe pain that he was unable to continue working, and he thereafter informed Bankston that he was in need of medical attention.

In his deposition testimony, Keller acknowledged he had a conversation with Ragland at approximately 10 a.m., shortly after he arrived at the worksite, when he stopped to introduce himself to Ragland. Apparently prompted by the fact that Keller was wearing a knee brace that day as the result of his own recent knee surgery, the two men discussed Keller's surgery

as well as Ragland's prior surgery on his left knee, the meniscus tear in Ragland's right knee, and Ragland's upcoming surgery. However, Keller denied that Ragland informed him that he was in any pain or that Ragland had asked to be taken off the pregauger machine. Keller recalled only that he advised Ragland "to take it...

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