Rice v. Bnsf Ry. Co.

• Decision Date: 29 July 2011
• Docket Number: No. SD 30895.,SD 30895.
• Citation: 346 S.W.3d 360
• Parties: Ronald W. RICE, Appellant,v.BNSF RAILWAY COMPANY, Respondent.
• Court: Missouri Court of Appeals

346 S.W.3d 360

Ronald W. RICE, Appellant,

v.BNSF RAILWAY COMPANY, Respondent.

No. SD 30895.

Missouri Court of Appeals, Southern District, Division Two.

July 29, 2011.

Kenneth E. Rudd, St. Louis, MO, for Appellant.Laurel E. Stevenson, Springfield, MO, for Respondent.WILLIAM W. FRANCIS, JR., Presiding Judge.

Ronald W. Rice (“Rice”) brought suit under the Federal Employers' Liability Act (“FELA”) against his former employer, BNSF Railway Company (“BNSF”), for injuries arising out of BNSF's alleged negligence. Rice appeals the trial court's directed verdict in favor of BNSF following the close of Rice's evidence. We reverse and remand.

Factual and Procedural History

On May 12, 2009, Rice filed a petition for damages claiming he sustained permanent and cumulative injuries, including bilateral carpal tunnel syndrome and neck and lower back injuries, from BNSF's failure to provide adequate work methods, conditions, equipment, and training to perform his assigned duties as a BNSF employee. Rice further alleged he did not know, nor did he have reason to know, of his separate injuries or that the injuries were related to his work until after June 1, 2006, less than three years before suit was commenced. In the course of the jury trial, beginning on September 20, 2010, the following evidence was adduced.

Rice's Employment With BNSF

On August 8, 1974, BNSF ¹ hired Rice as a trackman in the “Maintenance–of–Way” department. Rice worked at various locations as a trackman for BNSF for over thirty-three years. The focus of Rice's lawsuit, however, was primarily related to Rice's work on the BNSF's “Regional Production 13” (“RP–13”) rail gang from 1999 until 2007. The RP–13 rail gang was a production gang that operated like an assembly line, putting in and replacing rails. As a member of the RP–13 rail gang, Rice performed basic trackman duties, but his primary job was that of a “hooker” for the Grove crane.

As part of Rice's basic trackman duties he would, at the beginning and end of each day, manually pull spikes with a claw bar and manually re-drive spikes with a spike maul. The claw bar Rice used to pull spikes was a 5–foot–long steel bar weighing 40 pounds. Pulling a spike with a claw bar requires “quite a bit of force.” To pull the spike, Rice would put the foot of the claw bar under the spike and push down on the opposite end of the bar with both hands “like you were going to pull a nail with a hammer only it's on a much bigger scale.” At first the wrists are pretty straight, but as the claw bar is pushed down, the wrists bend over the top of the claw bar. When using the claw bar, a person's back starts in the upright position, “but as you're pulling [the] spike, you go over to a bent over position at the waist....” Sometimes a “violent motion” was required to get the spikes out of the railroad tie.

On December 4, 2000, Rice underwent BNSF's “Backs Plus” safety and ergonomics training program. BNSF's Backs Plus 2000 literature—developed by its own engineering department—indicated that at least since the year 2000, hydraulic spike pullers were the preferred method for removing spikes. Hydraulic spike pullers provided an alternative to using the claw bar to manually pull spikes. By squeezing the handle of the hydraulic spike puller, it would release the “pinchers” which pulled the spike out. Co-worker John Wadlow (“Wadlow”) testified that the RP–13 rail gang had a quality cart, which had a hydraulic spike puller on it, but it was never working. Rice confirmed that the RP–13 rail gang did not use a hydraulic spike puller.

As a Grove crane hooker Rice helped build rail joints using a rail saw, a hydraulic rail drill, and a hydraulic impact wrench. Rice used the rail saw to cut between 10 and 20 sections of rail each day; each cut took approximately a minute and a half. Use of the rail saw caused a tremendous amount of vibration in the hands and arms. After using the rail saw, Rice's hands “would tingle and sometimes be numb afterwards.” This was a frequent occurrence and depended upon how many cuts Rice made. Rice also used the hydraulic rail drill to drill between 40 and 80 holes through the web of the rail each day. The rail drill was handheld and also vibrated. Rice used the hydraulic impact wrench to tighten and untighten rail bolt nuts; he tightened between 40 and 80 bolts a day. The hydraulic impact wrench also vibrated and jerked as soon as you pulled the trigger.

In 1995, while working for BNSF at the “Switch Panel Plant” in Springfield, BNSF provided Rice with anti-vibration gloves for use while cutting rail. Rice testified the anti-vibration gloves made a difference and there was a lot more vibration without the anti-vibration gloves.² In 1999, after Rice went to work as the Grove crane hooker on the RP–13 rail gang, he requested anti-vibration gloves from a BNSF fuel truck driver, whose job it was to supply fuel, oil, gloves and safety equipment. Rice specifically asked the driver for anti-vibration gloves, but never received any. Co-workers Wadlow and Richard Jones (“Jones”) confirmed they too never received any anti-vibration gloves while working on BNSF's RP–13 rail gang.

Assistant Roadmaster Ed Blackburn (“Blackburn”) testified the RP–13 rail gang was intended to be staffed with thirty-five men. BNSF, however, cut the crew back to thirty-two. As the Assistant Roadmaster, Blackburn received numerous complaints about lack of manpower. Blackburn took those complaints to his immediate supervisor, Calvin Bray (“Bray”). Blackburn complained to Bray that more help was needed on the crew. According to Blackburn, Bray took the complaints to his superiors. Ultimately, however, Bray instructed Blackburn he would have to make do with the men he had.

Rice was heard making complaints about needing help with his work. Complaints were made to the roadmaster or the foremen during job briefings. The RP–13 rail gang “pretty much worked short-handed every day.” Sometimes they were three-to-four men short. Jones complained personally to the foremen and the roadmasters about being short-handed.

During the final three-to-four years Rice worked for BNSF, he only received help about 20 to 25 percent of the time.³ The rest of the time Rice performed the work without the requested help. Blackburn explained that when he supervised Rice (1999 to 2001), the Grove crane hooker job had more lifting and was more strenuous than any other job on the BNSF RP–13 rail gang. According to Blackburn, no one on the BNSF RP–13 rail gang needed assistance more than Rice. Blackburn testified Rice would tell him he was tired and needed help. Blackburn testified that if he had been given the additional three men he had requested, he would have been in a position to occasionally give Rice more help. Rice explained that when he actually got help, the job was easier, not as strenuous, and he was not “nearly as tired at the end of the day.”

The Grove crane that Rice used had a defective guide wheel; complaints were made to the foremen, roadmasters, and mechanics. Jason Phillips, Rice's co-worker and fellow trackman, testified he asked for four years (two of those years working with Rice) that the Grove crane guide wheel be fixed, but it was never fixed. When the guide wheel malfunctioned and the boat derailed, Rice, Phillips, and Jones had to re-rail it, which “cause[d] a lot of extra work ....”

Symptoms and Medical Treatment

Rice testified he first noticed symptoms of carpal tunnel syndrome (“CTS”) in August or September 2007. He began waking up at night with numbness and tingling in his hands and was unable to fall back asleep. These symptoms prompted him to see his primary care physician, Dr. Tegtmeyer, in January 2008. Dr. Tegtmeyer referred Rice to Dr. Edwin Cunningham (“Dr. Cunningham”), a board certified neurosurgeon.

Rice's initial visit with Dr. Cunningham was on March 5, 2008. During Dr. Cunningham's treatment and evaluation of Rice, Dr. Cunningham discussed with Rice his employment and made notes in his records—in the original history and physical. Dr. Cunningham diagnosed Rice with CTS. An electromyogram/ nerve conduction study (“EMG/NCS”) demonstrated mild sensory motor neuropathy on the right, and sensory abnormality in the left median nerve. Dr. Cunningham expressly testified that Rice “had electrical findings suggesting that which fit with what [Rice] was telling me in history.” In Dr. Cunningham's opinion, Rice's complaints, history and electrical findings were consistent.

Dr. Cunningham explained that the

carpal tunnel is a little bony and ligamentous tunnel that is at the base of the wrist and through that little bony tunnel, travel multiple tendons that work with the fingers that flex the fingers or bend them up. A couple of small arteries and most importantly in terms of problems for patients, a specific nerve called the median nerve which is fairly sizable.

Dr. Cunningham went on to explain that the process of aging, and other factors such as repetitive use of the finger flexors, can progressively narrow the tunnel and push on the nerve, causing pain and numbness. Rice initially thought he could live with the pain but returned for additional care and treatment in September 2009. Rice subsequently underwent two surgeries for CTS.

A hypothetical question was posed to Dr. Cunningham during trial regarding whether Rice's work with BNSF contributed to his CTS and his low back injuries. Dr. Cunningham responded:

A. I think it's possible with that kind of repetitive behavior using his hands that it most likely did contribute. It's hard for me to assign a percentage to it, but it did contribute in particular to the carpal tunnel syndrome.

Q. And would that be a yes?

A. Yes.

Dr. Cunningham also testified that in his opinion, to a reasonable degree of medical certainty, Rice's CTS was related to his work. This was based on his discussion with Rice, his clinical evaluation of Rice, and the EMG/NCS results. Dr. Cunningham...