Petition — Union Pacific Railroad v. Fletcher

: Suprene Court, U.S,

8 0 a 4 4 a FL ESO

P 20 1980

BR cise E

MICHAEL RODAK, JR. CLERK

——_——

In The

Supreme Court of the United States

OCTOBER TERM, 1980

>)

UNION PACIFIC RAILROAD COMPANY,

Petitioner,

vs.

DONALD D. FLETCHER,

Respondent.

>)

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

>)

MicHaEL P. McReyno.ps

1416 Dodge Street

Omaha, NE 68179

(402) 271-3441

Attorney for Petitioner

Union Pacific Railroad Company

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

QUESTION PRESENTED FOR REVIEW

May a railroad employee maintain an action under the

Federal Employers’ Liability Act for personal injurie:

arising from allegedly negligent assignment to overly

strenuous work if the suit is filed more than three years

after the employee has ceased performing such work and

more than three years after the employee learned of the

cause of his injuries?

il

TABLE OF CONTENTS

Pages

ERR ARE ESI mA Ca 2

Jurisdiction 2

EE LEAT OT RII 2

EE Se LT 3

Reasons For Granting The Writ:

1. The decision below is in conflict with appli-

eable decisions of this Court and other courts of

appeals to the effect that a suit alleging negligent

assignment to strenuous work must be brought

within three years from the time the employee

gE RT AEE Eee eae oe NE aT 5

2. The decision below represents such a depart-

ure from accepted negligence law as to call for

the exercise of this Court’s power of supervision. 11

asec neal imi 14

ia. sanmnsersoorgnseentnioosingnniilinins App. 1

SSS sstaenoninsnacsoen ieiniecheihensien App. 18

io pssammreneirnne seins ini App. 25

Sa App. 26

en me... Si icasbibatlinnesiaibe OE Re ee App. 27

4 SEE a a App. 28

Sa a App. 29

iii

TABLE OF AUTHORITIES

Pages

CasEs:

Brassard v. Boston and Maine Railroad, 240 F. 2d

138 (1st Cir. 1957) ........ ‘ 10

Fowkes v. Pennsylvania R. R. Co., 264 F. 2d 397

(3rd Cir. 1959) 6, 7,8

Simmons v. American Mutual Liability Insurance

Company, 433 F. Supp. 747 (S.D. Ala. 1976)

aff'd without opinion, 560 F. 2d 1022 (5th Cir.

1977) 9

Urie v. Thompson, 337 U. S. 163 Pe ket a ay Ae

STATUTES:

28 U.S.C. Sec. 1254 (1) ............... 2

45 -U.5. ©. Seo. 61 ‘et seg. 2, 3, 4

TrExTs:

51 Am. Jur. 2d, Limitation of Actions, See. 109 ............... 12

54 C. J.S., Limitations of Actions, Sec. 169 12

Prosser Torts 4th Edition, pp. 143-144 ......... 11,12

I alicecaheens

i)

In The

Supreme Court of the United States

OCTOBER TERM, 1980

o

UNION PACIFIC RAILROAD COMPANY,

Petitioner,

vs.

DONALD D. FLETCHER,

Respondent.

t)

Vv

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

>)

Petitioner Union Pacific Railroad Company prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Kighth Cir-

cuit entered in favor of the respondent in the above-en-

titled case on May 7, 1980, rehearing denied June 26, 1980.

ray

ae

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

621 F. 2d 902, and is printed in Appendix A. The opinion

of the District Court has not been reported and is printed

in Appendix B.

°

JURISDICTION

The opinion of the Court of Appeals was filed and a

judgment in accordance therewith, printed in Appendix C,

was entered on May 7, 1980. An order denying a rehear-

ing was entered on June 26, 1980 and is printed in Appen-

dix F. The jurisdiction of this court is involved under

Title 28 United States Code, Section 1254 (1). On July 25,

1980 the Court of Appeals stayed the issuance of its man-

date and granted an extension of time to file this Petition

of Certiorari until September 24, 1980, which order is

printed in Appendix G.

°

STATUTES INVOLVED

This case involves a question as to the proper appli-

eation of the Statute of Limitations provision of the Fed-

eral Employers’ Liability Act, 45 U.S.C. See. 51 et seq.

(hereinafter referred to as ‘‘the FELA” or “the Act’’).

The provisions of the Act involved here are contained in

Sections 51 and 56 which read, in pertinent part, as fol-

lows:

Section 51. “Every common carrier by railroad while

engaging in commerce between any of the several

States ... shall be liable in damages to any person

suffering injury while he is employed by such carrier in

such commerce ... for such injury... resulting in

whole or in part from the negligence of any of the

officers, agents, or employees of such carrier... .”

Section 56. “No action shall be maintained under this

chapter unless commenced within three years from the

day the cause of action accrued.

Under this chapter an action may be brought in a

district court of the United States, in the district of

the residence of the defendant, or in which the cause

of action arose, or in which the defendant shall be

doing business at the time of commencing such action.

The jurisdiction of the courts of the United States un-

der this chapter shall be concurrent with that of the

courts of the several States.’’

ray

Vv

STATEMENT OF THE CASE

Donald Fletcher, Respondent here, is an employee of

Petitioner Union Pacific Railroad Company (hereinafter

referred to as “Union Pacific” or “the Railroad’’). On

March 21, 1962 he experienced a traumatic, work-related

back injury for which he was treated but for which he filed

no claim against Union Pacific. Over the years Fletcher

was treated for back pain while still working as a section-

man for the Railroad. On December 7, 1973 he took a

leave of absence from that position and has never re-

4

turned to work as a sectionman. Fletcher remained on the

employee roster as a sectionman while on his leave of ab-

sence. (In 1975, Fletcher returned to work for the Rail-

road as a crossing watchman/flagman. His work as a

crossing watchmen has never been alleged to have been

negligently assigned and is not involved in this case.)

Fletcher brought suit against the Railroad in the

United States District Court for the District of Nebraska

on June 8, 1977, under the provisions of the Federal Em-

ployers’ Liability Act, 45 U.S.C. See. 51 et seq., alleging

that the doctors who had treated him were agents of Union

Pacific and had misdiagnosed the nature of his back prob-

lem until July, 1974. Jurisdiction in the District Court was

based on 45 U.S.C. Sec. 56. In addition, he alleged that

prior to December 7, 1973 the Railroad had ordered him

to perform overly strenuous work as a sectionman when

it knew or should have known that such work would aggra-

vate his back problem.

The District Court, sitting without a jury, found that

the doctors were not Railroad agents and that no misdiag-

nosis had taken place. Further, the Court found that

Fletcher knew he was injured, knew the causes of his in-

juries, knew his injuries impaired his working ability, and

had these facts confirmed as late as July, 1973 and Febru-

ary, 1974, more than three years before suit was filed.

Accordingly, the Court entered an order, printed in Ap-

pendix D, dismissing the Respondent’s complaint on the

grounds that it was filed more than three years after any

cause of action accrued. Respondent moved to alter judg-

ment or in the alternative for a new trial. The Court en-

tered an order, printed in Appendix EK, overruling this

motion.

5

Fletcher appealed the decision to the Court of Ap-

peals for the Eighth Cireuit. On May 7, 1980, that court

unanimously upheld the District Court’s finding that no

misdiagnosis had taken place, which disposed of Fletcher’s

first allegation without requiring a ruling on the issue of

the treating physician’s relationship to the Railroad. The

Court of Appeals reversed, with one judge dissenting, on

the issue of the negligent assignment, holding that the

statute of limitations was tolled so long as Fletcher was

maintained on the employee roster as a sectionman al-

though he was no longer engaged in such work. The Court

ordered the matter remanded to the District Court for

further proceedings. The Railroad’s Petition for Rehear-

ing was denied on June 26, 1980 by a five to three vote of

the Court of Appeals.

-0-

REASONS FOR GRANTING THE WRIT

1. The decision below is in conflict with appli-

cable decisions of this Court and other courts of

appeals to the effect that a suit alleging negligent

assignment to strenuous work must be brought

within three years from the time the employee

ceases such work.

The central issue before this Court is the accrual of

Fletcher’s cause of action for the alleged negligent as-

signment to overly strenuous work as a sectionman. In

this regard, two dates are of critical importance: Decem-

ber 7, 1973, the last date on which Fletcher performed

work as a sectionman, and June 8, 1977, the date his-suit

6

against the Railroad was filed. This period of time was

three and one-half years long. After December 7, 1973,

Fletcher no longer performed any of the work of which

he complains in his suit. In 1975, he took a position as a

crossing watchman for the Railroad. His work at that

job is not involved in this ease.

In its opinion the Court of Appeals relied heavily

on the decision in Fowkes v. Pennsylvania R. R. Co., 264

F. 2d 397 (3rd Cir. 1959). An examination of this case

shows that it is actually in direct conflict with the con-

clusion of the Court of Appeals and supports Union Pa-

cifie’s position.

The plaintiff in Fowkes brought a FELA action

against the defendant railroad on August 31, 1955 alleg-

ing that traumatic arthritis has resulted from a series

of jolting impacts caused by a defect in an air hammer

which the plaintiff had used from 1924 until September 9,

1952. The plaintiff complained to his superiors about the

air hammer over the years but he continued to use it until

September 9, 1952 when he took another position using

a smaller air hammer when the larger one became too

difficult to handle.

The trial court found that the suit had been brought

within the Statute of Limitations period, reasoning that

the statute was tolled until the plaintiff was aware that

~—~~ean arthritis condition had developed in his back. The

Court’s reasoning was grounded on Urie v. Thompson,

337 U. S. 163 (1949), which involved industrial disease.

The Court of Appeals, however, found it unnecessary to

involve the doctrine of Urie v. Thompson. Instead, the

Court of Appeals noted that the plaintiff’s injuries were

7

the result of the cumulative effects of his work over the

years and accordingly, held that suit need be filed within

three years of his last day of participating in such work.

Thus, Fowkes stands for the proposition that the statute

of limitations under the FELA begins to run when the

injury producing conduct on the part of the employer

ceases.

The Fowkes decision indicated that there was a causa-

tion question which might have involved the Urie v. Thomp-

son doctrine that a cause of action for industrial disease

does not accrue until the employee knows or should have

known he was afflicted and that his employment caused

his injury. However, as noted, the Court ultimately held

that a resolution of that issue was not necessary to decide

the case. Moreover, that issue is not involved here as the

Court of Appeals, in the decision below, clearly held that

there had been no misdiagnosis and, further, that Fletcher

was thus aware of the injury and its causation more than

three years before suit was brought (App. p. 9).

The holding in the Fowkes case has been fundamental-

ly misconstrued by the Court of Appeals:

On page 11 of its opinion, the Court says:

“Fowkes v. Pennsylvania Railroad stated that the

statute does not begin to run on the injury until the

master-servant relationship ends.” (App. p. 12.)

This is, however, incorrect. As noted, the focus of Fowkes,

and of all other FELA cases concerning the statute of

limitations which can be located, is not on the master-serv-

ant relationship but rather is on the injury producing

conduct. Fowkes held that the statute did not begin to

run until the plaintiff was relieved of the injury producing

~

8

type of work he was doing. In fact, in Fowkes, as in this

case, the master-servant relationship did not end when

the injury producing conduct did. There, as in the case

at bar, the plaintiff continued to work for the defendant

railroad but in a different job. In the present case, Fletch-

er did not terminate his relationship with the Railroad but

took a leave of absence and later returned to work as a

flagman.

From the foregoing it is clear that there are many

similarities between the facts in Fowkes and the facts in

the instant case. However, the cases are strikingly dis-

similar with regard to the most crucial fact in both cases:

In Fowkes the plaintiff brought suit within three years

of the time he ceased to perform the injury producing

work; however, in the instant case Fletcher did not bring

suit within three years of the time he ceased to perform

the injury producing work. Put more simply, Fowkes

brought suit before the statute of limitations had run

but Fletcher did not bring suit before the statute of lim-

itations had run.

The Court of Appeals on page 11 of its opinion also

states that:

“The salient factor is how long the Railroad persisted

in its allegedly tortious conduct.” (App. p. 12.)

Apparentiy, the Court of Appeals believed that leaving

Fletcher on the roster as a sectionman was tortious and,

therefore, the salient factor. In fact, the salient factor

is when the Railroad last caused injury. It is unquestioned

that Union Pacific did not place Fletcher in an injury pro-

ducing environment after December 7, 1973. However, the

Court has adopted the fiction that the mere fact that Fletch-

9

er continued with the title of sectionman after December

7, 1973 (but performed no injury producing work after

that date) was sufficient to cause the injury producing

conduct to continue.

The Court of Appeals maintains that certain physi-

cians’ reports in July, 1974 and April, 1975 referring to

Fletcher as a “sectionman” serve to show that the Rail-

road negligently assigned work to Fletcher (App. pp. 12-

13). Here, again, the decision makes little sense. The re-

ports concern Fletcher’s condition; they are not orders

from the Railroad to return to work which he followed.

Manifestly, he did not return to strenuous work after De-

cember 7, 1973 and the mere fact that he was referred to

as a “sectionman”’ in certain medical reports is clearly

irrelevant. (As previously noted, Fletcher took a job with

the Railroad as a crossing watchman in 1975. No com-

plaint of negligence is involved with that work.)

The cases are replete with support for the Railroad’s

position in this case. The Court of Appeals itself on page

10 of its opinion says:

“An employee’s right of action against his employer

for personal injuries may be tolled until the last day

the employee was subjected to the conditions causing

the injury.” Simmons v. American Mutual Inability

Insurance Company, 433 F. Supp. 747, 751 (S. D. Ala.

1976) aff’d without opinion, 560 F. 2d 1022 (5th Cir.

1977). (App. p. 11).

The Simmons’ case dealt with silicosis, an industrial di-

sease considered under Alabama law to be a continuing

injury. There the Court said:

“The time of injury is determined by the last date

of exposure. The last date of exposure is the last date

10

of employment in the type of werk causing the injury,

Minyard v. Woodward Iron Company, 81 F. Supp.

414 (N. D. Ala. 1948), affirmed 170 F. 2d 508. Here it

would be the last date of exposure while using the ar-

ticles in question.” 433 F. Supp. at 751.

Thus, even the cases which the Court of Appeals relied

on for its opinion actually support Union Pacific’s con-

tention. The Court of Appeals erred in not following the

cases which it cited.

The First Circuit also had occasion to rule on the ap-

plication of the statute of limitations in a FELA case

somewhat similar to the present action. In Brassard v.

Boston and Maine Railroad, 240 F. 2d 138 (1st Cir. 1957),

the plaintiff alleged that he had been required to do heavy

lifting without proper equipment or help, causing injuries

to his back. The Court of Appeals, in reviewing the Dis-

trict Court’s dismissal of the amended complaint, treated

the complaint as alleging separate and distinct torts over

a period of time and said:

“The familiar rule is that if defendant commits a single

breach of duty, plaintiff’s cause of action in tort or-

dinarily accrues at the time his interest is invaded.

Restatement, Torts, 4899 comment ec. If, however,

defendant commits successive breaches of duty toward

plaintiff, and these cause separate invasions of plain-

tiff’s interest, each new invasion is a new tort. (cita-

tions omitted). It is the second branch of this rule

that applies to the amended complaint at bar as we

construe it. Hence it follows that if plaintiff can prove

his allegation that defendant committed a new breach

in October 1953, and that this breach caused a new

invasion of plaintiff’s interest, he has a valid cause

of action which arose within three years.” 240 F. 2d

at 141.

11

In the present case, essentially Fletcher is alleging

successive breaches of Union Pacifie’s duty to him. In no

instance, however, did a breach occur after December 7,

1973, and, therefore, his cause of action accrued at the very

latest at that time. |

This court recognized the traditional purposes of the

statutes of limitations in the Urie v. Thompson, supra, de-

cision. There it was said these purposes “. . . convention-

ally require the assertion of claims within a specified period

of time after notice of the invasion of legal rights.” 337 U.

S. at 170. In this case the facts are that Fletcher had

notice that continuing heavy work was causing harm and

he not only failed to assert his claim for more than three

years after receiving such notice, but also failed to assert

his claim for more than three years after ceasing to per-

form such work.

2. The decision below represents such a depart-

ure from accepted negligence law as to call for the

exercise of this Court’s power of supervision.

The decision of the Court of Appeals is not only in

conflict with the decisions of other Courts of Appeals, as

established, supra, but it is in conflict with recognized au-

thorities on the question accrual of a cause of action in tort.

The nexus of a cause of action in tort is injury. Pross-

er states:

“Negligent conduct in itself is not such an interfer-

ence with the interests of the world at large that there

is any right to complain of it, or to be free from it,

except in the case of some individual whose interests

have suffered.” Prosser Torts 4th Edition, pp. 143-

144,

12

Further, Pross« ° says:

“Tt follows that the statute of limitations does not

begin to run against the negligent action until some

damage has occurred.” Prosser, p. 144.

The legal encyclopedias are in accord on this point.

C.J.S. states:

“Subject to rules governing single or successive suits,

it may be broadly stated that, where a tort involves

a continuing or repeated injury, the cause of action

accrues at, and limitations begin to run from, the date

of the last injury, or when the tortious overt acts

cease.” 54 C.J.S. Limitations of Actions, Sec. 169.

In the present case, tue last possible date of injury and

the last possible date of allegedly tortious acts by the Rail-

road is December 7, 1973.

To the same effect is Am. Jur. 2d:

“As a general rule, the occurrence of an act or omis-

sion, whether it is a breach of contract or of duty,

whereby one sustains a direct injury, however slight,

starts the statute of limitations running against the

right to maintain an action.”

51 Am. Jur. 2d Limitation of Actions, See. 109.

No personal injury cases have been found which ex-

tend the accrual of a cause of action beyond the last date

of injury when the injured party is aware of the cause

of his injuries. The findings of the District Court and

the Court of Appeals in this case are clear that Fletcher

was aware of his problems before he ‘took his leave of

absence on December 7, 1973, after which date he per-

formed no strenuous work (App. pp. 9 and 23).

The statute of limitations is an important element in

the FELA and its provisions are deserving of respect.

13

However, it appears that the Court of Appeals simply did

not like the result reached by the applying of the statute

of limitations in this case and “stretched” to find a reason

to reverse the District Court to allow Fletcher another

opportunity to try his case.

By focusing on the relationship of the parties, rather

than on the injury producing conduct, the Court of Ap-

peals simply defies logic. A look at other results if this

approach is followed by the courts should be instructive.

Consider the result if, instead of granting Fletcher’s re-

quest for a leave of absence on December 7, 1973, the Rail-

road had fired him. According to the Court of Appeals,

enly under such circumstances would Fletcher’s cause of

action have accrued at that time because the master-serv-

ant relationship would have ended. Accordingly, the Rail-

road would be more prudent to fire employees in order to

begin the running of the statute. Such a result is hardly

in keeping with the FELA but makes perfect sense under

the Court of Appeals ruling.

If one were to use the logic of the Court of Appeals

on the issue of negligent assignment and apply it to an

ordinary automobile accident case, the absurdity would be

magnified. For example, if a motorist negligently struck

a pedestrian on December 7, 1973, and thereafter con-

tinued to drive negligently but never struck the pedestrian

again, the Kighth Circuit’s logie would hold that the pedes-

trian’s cause of action for the December 7, 1973 accident

did not accrue until the motorist ceased driving negligently,

although no further harm resulted to the pedestrian.

If the statute of limitations does not apply in this case,

where the respondent knew of his injuries and knew that

14

the alleged negligent assignment to strenuous work was a

cause, where does the statute apply? The Court of Ap-

peals effectively says that it does not ever apply so long

as the employment relationship continues to exist.

The importance of the statute of limitations question

involved in this case cannot be over emphasized. If the

decision of the Court of Appeals is not reversed, confus-

ion will reign in this area and the intent of Congress will

be emasculated.

°

CONCLUSION

For the foregoing reasons it is respectfully submitted

that this Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

MicHaku P. McReyvnoups

1416 Dodge Street

Omaha, NE 68179

(402) 271-3441

Attorney for Petitioner Union

Pacific Railroad Company

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1472

DONALD D. FLETCHER,

Appellant,

vs.

UNION PACIFIC RAILROAD COMPANY :

a corporation,

Appellee,

Appeal from the United States District Court

for the District of Nebraska

Submitted: December 7, 1979

Filed: May 7, 1980

Before GIBSON, Chief Judge, HENLEY and

MoMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Donald Fletcher appeals the judgment of the district

court! that his personal injury claim against Union Pacific

*The Honorable Floyd R. Gibson was Chief Judge of the

Eighth Circuit at the time this case was submitted and took

wi ~ cy on December 31, 1979, before the opinion

was filed.

1 The Honorable Albert G. Schatz, United States District

Judge for the District of Nebraska.

App. 2

Railroad Company (the Railroad), under the Federal Em-

ployers 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 section-

hand doing heavy labor. On March 22, 1962, Fletcher

shoveled crushed rock for approximately forty-five min-

utes, 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)?’ 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 re-

turn to work.

It is undisputed that, since the injury on March 21,

1962, Fletcher has had a chronic back problem and has re-

2 UPREHA is a health care group formed by the Railroad em-

loyees. The Railroad sends employees who are sick or

injured on the job to the Dispensary for medical treatment.

The Dispensary is located in the Railroad’s headquarters in

Omaha, Nebraska, in office space that it leases from the

Railroad. UPREHA also maintains a ward at St. Joseph

Hospital and refers employees to outside specialists for

treatment of problems within their medical specialities.

As a condition of employment, each employee is required

to sign an authorization granting the Railroad Claim De-

partment access to all medical records.

App. 3

ceived 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 physi-

cians at all until he returned to the Dispensary of his own

accord in 1966,

In any event, on February 24, 1966, Fletcher was re-

ferred 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

dise syndrome.’’ Fletcher’s symptoms were treated con-

servatively, that is, with traction, bed rest and pain medi-

cine. 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 rang-

ing from “atypical dise syndrome” to “dorsal lumbar ar-

thritis.’”

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 syn-

drome.” 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, ‘‘Be-

3 On two occasions, Fletcher was also treated for depression

as the pain got worse and more constant.

App. 4

cause 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. Kra-

tochvil’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-ab-

sence status. He was then referred by the UPREHA dis-

trict surgeon to a neurologist, who diagnosed “a chronic

degenerative lumbar intervertebral dise or chronic lumbar

strain.”

In June 1974, the Railroad sent Fletcher to be evalu-

ated 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‘ 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

4 In a fusion operation the fourth and fifth lumbar vertebra

are fused to the sacrum by means of a transverse fusion

process in which a section of bone is removed from the hip

and fused to the body of the vertebra.

App. 5

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 out-

patient 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 sec-

tionman. 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. Ina 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%.

5 On June 23, 1977, the Railroad estimated Fletcher’s approxi-

mate wage loss from 1973 through 1977 as follows (ex. 16):

1973 - $ 739.00

1974 - 9,563.04

1975 - 10,523.52

1976 - 11,630.16

1977 - 13,008.24

Total - $45,463.96

App. 6

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 as-

sumed that Fletcher’s cause of action accrued on March

21, 1962, and rejected Fletcher’s contention that the Rail-

road 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 mis-

representations 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 as-

serting the statute of limitations. Fletcher claims that,

because of the various and erroneous diagnoses of the

UPREHA doctors, he was induced to delay taking appro-

priate 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

App. 7

have expired before Fletcher returned to UPREHA physi-

cians in 1966.

The FELA provides that actions for injuries to em-

ployees must be brought “within three years from the day

the cause of action accrued.’’ 45 U.S.C. §56. In eases

involving traumatic injury, when the symptoms are im-

mediately 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. Bras-

sard 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); Felia v. Burlington Northern, Inc., 355 F.Supp.

1107 (D. Minn. 1973). By the same token, with industrial

diseases, where the symptoms are not immediately mani-

fested, the cause of action does not accrue until the em-

ployee is aware or should be aware of his condition. Urie

v. Thompson, 337 U.S. 163 (1949); Young v. Clinchfield

R.R., 288 F.2d 499 (4th Cir. 1961). However, even in

eases 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 Ter-

minal, 359 U.S. 231 (1959). A railroad is equitably estop-

ped 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 misrepresenta-

tions upon which the employee relied were unintentional.

Lowsville & Nashville R.R. v. Disspain, 275 F.2d 25 (6th

Cir. 1960) (misdiagnosis); Mwmpower v. Southern Ry,.,

App. 8

270 I’. 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 Serv-

ice Tanker Corp., 421 F. Supp. 131 (E. D. La. 1976) (delay

even after surgery to correct the injury) ; 53 C.J.S. Limi-

tations of Actions 4 25. Likewise, a railroad is not estopped

where the employee did not in fact rely on its misrepresen-

tation. Holifield v. Cities Service Tanker Corp., supra, 421

F. Supp. at 135. Apart from the estoppel cases, the statute

of limitations may be tolled by extenuating circumstances,

especially where there is no prejudice to the railroad.

Burnett v. New York Central R. R., 380 U.S. 424 (1965)

(allowed to refile in proper forum); Billings v. Chicago,

Rock Island & Pacific R. R., 581 F.2d 707 (8th Cir. 1978)

(improper venue).

We agree with the district court that Fletcher’s claim

for the back injury is barred by the statute of limitations.

Because it is not necessary to our conclusion, we do not

reach the issue of whether the many doctors who treated

Fletcher after 1962 were agents of the Railroad.6 How-

ever, we note that the trend is toward finding agency in

such cases and that the record before us does not include

many of the determinative facts, such as: whether medical

care is provided pursuant to a contract or statute; who

pays the physicians or contributes to the fund for com-

6 The Railroad conceded, in it brief as well as at oral argu-

ment, that the UPREHA doctors at the Dispensary were its

agents at least as to the initial visit.

App. 9

pensating the physicians; who administers the fund and

how; who selects the physicians; who sets the standards

for employment and disability physicals; whether injured

employees are required to report to the company physi-

cian; what non-monetary advantages accrue to the rail-

road; and what is the custom and practice. See Annot., 16

A. L. R. 2d 564 (1966).

There is no equitable estoppel here simply because

there was no misrepresentation within three years of filing

suit. Giving Fletcher the benefit of every doubt, we might

assume that he received a misdiagnosis at the Dispensary

in March of 1962, which kept him unaware of his condition.

However, the back problem was definitely diagnosed no

later than February of 1966. From then on, all the medical

terms applied to Fletcher’s back—from “lumbar dise syn-

drome” to “unstable back”—refer to chronic back strain.

The 1974 surgery was not delayed by misdiagnosis, but

was performed as soon as his degenerative condition had

progressed to the point where surgery was indicated.

Moreover, Fletcher was not misled by the difference

in medical terminology. His attorney conceded, “Mr.

Fletcher has never claimed that he was told that nothing

was wrong with his back or that a slumbering symptom

suddenly erupted and disabled him.” Brief of Appellant

at 22. This admission also undermines Fletcher’s alterna-

tive theory that his condition was analogous to an indus-

trial disease. We agree in theory that a traumatic injury

could produce latent symptoms such that tolling the statute

of limitations until the employee knew he was’ injured

would be appropriate. See Paynter v. Chesapeake & Ohio

Ry., 60 F.R. D. 153, 157 (W. D. Va. 1973). However, the

App. 10

situation at bar does not present such a case. As soon as

Fletcher became aware that something was wrong with

his back,’ his lack of reliance on the doctors’ representa-

tions obviated equitable estoppel. Therefore, Fletcher’s

cause of action for his March 21, 1962, injury is barred by

the statute of limitations.

Fletcher’s second contention is that the Railroad is

liable for negligently assigning him to work more strenu-

ous than that for which he was reasonably suited. The

Railroad argues that this cause of action accrued when he

quit working in December 1973 and therefore is also barred

by the statute of limitations. The threshold question is

whether the statute had run on the negligent assignment

claim.

The statute of limitations for the negligent assignment

claim is distinguished from the claim for the original in-

jury. Where injury results from a negligent act and the

injury continues by reason of continued negligence, a re-

covery may be had for damages® caused by the continuing

negligence although a cause of action based on the original

negligent act is barred. 54 C.J.S. Limitations of Actions

§174a. Therefore, although the cause of action for the

original injury was barred by limitations, the statute of

7 If his back bothered him constantly from March 21, 1962,

his cause of action accrued on that date. Even if his cause

of action had not accrued until February 1966, more than

three years supervened after the delay allegedly caused by

the Railroad.

8 Some courts hold that, in order to toll the statute, the dam-

ages must be separate and distinct injuries. 54 C. J. S. Limi-

tations of Actions § 174a.

App. 11

limitations for the negligent assignment claim did not be-

gin to run until its own time of accrual.

Where an injury is caused by continuing or repeated

acts, the statute of limitations may not begin to run even

when the tort is complete. Steubig v. Hammel, 446 F.

Supp. 31, 35 (M.D. Pa. 1977); Lathon v. Parish of Jeffer-

son, 358 F.. Supp. 558, 559 (KE. D. La. 1973); 4 Restatement

of Torts 2d §899ce. The statute of limitations may be

tolled until the tortious conduct ceases, on the theory that

one should not be allowed to acquire a right to continue

the tortious conduct. Donaldson v. O’Connor, 493 F. 2d

507, 529 (5th Cir. 1974), vacated on other grounds, 422

U. S. 563, on remand, 519 F. 2d 59 (1975); Harper v.

Union Savings Ass’n, 429 F, Supp. 1254, 1260 (N. D. Ohio

1977). An employee’s right of action against his employer

for personal injuries may be tolled until the last day the

employee was subjected to the conditions causing the in-

jury. Simmons v. American Mutual Liability Ins. Co.,

433 F. Supp. 747, 751 (S. D. Ala. 1976), aff’d without opin-

ion, 560 F.. 2d 1022 (1977).

At least one court has applied these principles to a

FELA claim for an injury which was not an occupational

disease. In Fowkes v. Pennsylvania R. R., 264 F. 2d 397

(3d Cir. 1959), the plaintiff’s use of a defective air ham-

mer had the cumulative effect of causing joint damage and

arthritis. That harmful working condition was treated as

a continuing or frequently repeated wrong which tolled the

running of the statute of limitations. The court refused

to limit the claim to aggravation of the injury that had

occurred within three years of when suit was filed. In-

stead, it reasoned that the master’s failure to perform its

App. 12

duty was a single wrong, so that the statute did not begin

to run on the injury until the master-servant relationship

ended. Jd. at 399.

Fletcher filed this lawsuit on June 8, 1977. The FELA

has a three-year statute of limitations. If Fletcher is to

recover for negligent assignment, the statute must have

been tolled until June 8, 1974. Fowkes v. Pennsylvania

R. R. stated the rule that the statute does not begin to run

on the injury until the master-servant relationship ends.

But we have been unable to locate a case with facts such

as those at bar. ‘In the typical case, regardless of when

the tort was complete, the employee was still working under

the harmful conditions within three years of filing suit;

here Fletcher took leave-of-absence status more than three

years before filing suit but never terminated the master-

servant relationship. Although economic coercion is one

rationale for tolling the statute as between master and

servant, Fletcher’s decision to forego compensation does

not defeat his recovery. Rather, the salient factor is how

long the Railroad persisted in its allegedly tortious con-

duct. There is sufficient evidence to convince us that,

even after a physician had recommended otherwise and

while Fletcher continued to seek a different assignment,

the Railroad repeated its assignment of Fletcher as a sec-

tionhand. In June of 1974, the Railroad sent Fletcher to

a doctor to be evaluated for disability. The report, which

was completed in July of 1974, found that Fletcher could

be returned to work as a sectionhand. This fact alone

brings Fletcher’s filing within the statutory period. A

further indication that Fletcher was still officially assigned

as a sectionhand is that, on April 16, 1975, Dr. Kratochvil

had to write to the Railroad, ‘‘T will not be able to release

App. 13

him to return to his present job as a sectionman.” The

Railroad’s allegedly tortious conduct did not cease until

it assigned Fletcher to lighter work. Therefore, the stat-

ute was tolled sometime after April 16, 1975. Fletcher’s

June 8, 1977, filing was timely as to the negligent assign-

ment claim.

The next question which arises is whether the assign-

ment caused his present condition. The test of causation

under the FELA is whether the railroad’s negligence

played any part, however small, in the injury which is the

subject of the suit. Dunn v. Conemaugh & Black Lick R. R.,

267 F. 2d 571, 575 (3d Cir. 1959), aff’g 162 F. Supp. 324

(W. D. Pa. 1958) ; Isgett v. Seaboard Coastline R. R., 332

F. Supp. 1127, 1143 (D. S.C. 1971). An employee’s claim

under the FELA does not depend on showing that the in-

jury was caused by a particular negligent act, Massimiani

v. Monongahela Ry., 339 F. Supp. 832, 833 (W.D. Pa.

1972), but may be caused by the cumulative effect of a

series of incidents, Fowkes v. Pennsylvania R. R., supra,

264 F’. 2d at 399, or due to the employee’s weakened con-

dition, Dunn v. Conemaugh & Black Lick R. R., supra, 162

F. Supp. at 330. Recovery for the resulting injury may

be had under the FELA. Dunn v. Conemaugh & Black

Lick R.R., supra, 267 F. 2d 571; Nuttall v. Reading Co.,

235 F. 2d 546 (3d Cir. 1956).

All the evidence was consistent that Fletcher’s back

condition improved in response to rest and symptomatic

treatment but flared up each time he was returned to work

as a sectionhand. As Dr. Kratochvil succinctly put it in

his letter to the Railroad claims agent, ‘“The lumbar strain

was the result of years of hard work.’’ It is clear that the

App. 14

Railroad’s returning Fletcher to work as a sectionhand

played a part in causing his present condition.

The remaining issue is whether the Railroad’s re-

peated assignment of Fletcher as a sectionhand was in fact

negligent. A railroad has a duty to assign employees to

work for which they are reasonably suited. A railroad

breaches that duty if it negligently assigns an employee

to perform work beyond his capacity. Massimiani v. Mo-

nongahela Ry., supra, 339 F. Supp. at 833; Bascho v. Penn-

sylvania R. R., 3 N. J. Super. 86, 65 A. 2d 613, 616 (1947).

The railroad is negligent if it knew or should have known

that its assignment exposed the employee to an unreason-

able risk of harm. Dunn v. Conemaugh & Black Lick R. R.,

267 F. 2d 571, 576 (3d Cir. 1959), aff’g 162 F. Supp. 324

(W. D. Pa. 1968) ; Gulf Colorado ¢ Santa Fe Ry. v. Water-

house, 223 8. W. 2d 654, 659 (Tex. Civ. App. 1949). Whether

the assignment was negligent is a question of fact. Dunn

v. Conemaugh & Black Lick R. R., swpra, 162 F. Supp. at

327. Generally, a railroad has no duty to ascertain whether

an employee is physically fit for his job, but if it under-

takes to give physical examinations, it is liable if it per-

forms such undertaking negligently.’ Isgett v. Seaboard

Coastline R. R., supra, 332 F. Supp. at 1141; McGuigan v.

Southern Pacific Co., 129 Cal. App. 2d 482, 277 P. 2d 444,

452 (1954). Where a physician certifies the employee as

fit to return to heavy labor, it is not the employee’s burden

9 This result is not harsh when one considers, first, that this

doctor is almost certainly an agent of the employer and,

second, that the employer undoubtedly has a hand in set-

ting the standards for disability and employment physicals.

App. 15

to show malpractice by the examining physician,! rather

it is sufficient to show that the railroad knew or should

have known that the employee was unfit for the work be-

cause of his condition. Dunn v. Conemaugh & Black Lick

R. R., supra, 267 F. 2d at 576; Mroz v. Dravo Corp., 293

F. Supp. 499, 504 (W. D. Pa. 1968) (fit-for-duty slip from

hospital was not conclusive of plaintiff’s fitness to work).

The employee’s knowledge of his physical condition does

not absolve the railroad of its duty to protect the employee

from further injury. Massimiani v. Monongahela Ry,.,

supra, 339 F. Supp. at 833; Mroz v. Dravo Corp., supra,

293 F. Supp. at 504 (3d Cir. 1956) (étmployee called in

sick but was refused permission). But cf. McGuigan v.

Southern Pacific Co., supra, 277 P. 2d at 454 (railroad

liable if it knew that employee was ignorant of his con-

dition); George v. Hillman Transportation Co., 340 F.

Supp. 296, 301 (W.D. Pa. 1972) (claim barred when em-

ployee aware of condition but didn’t give notice to em-

ployer).

The district court did not reach the negligent assign-

ment claim. It has not yet had an opportunity to apply

the law on negligent assignment to the facts before us.

Neither have the parties briefed the point. Because of

our findings that Fletcher’s filing was timely as to the

negligent assignment claim and that Fletcher’s assignment

played a part in his current condition, we reverse in part

10 Most such cases find that the examining physician was an

agent of the railroad. £.g., Dunn v. Conemaugh & Black

Lick R.R., supra, 162 F.Supp. 324; McGuigan v. Southern

Pacific Co., aw 277 P. 2d 444. However, such a finding

is not essential.

App. 16

and remand to the district court for proceedings consistent

with this opinion."

HENLEY, Circuit Judge, concurring in part, dissenting

in part.

The result reached by the majority is acceptable ex-

cept as it deals with the issue of negligent assignment.

Since the district court did not reach the negligent

assignment claim and the parties did not brief the issue,

it might have been preferable to have remanded that en-

tire issue for initial findings and conclusions by the dis-

trict court. However, a majority of this panel has found

that there was an assignment to heavy labor continuing

beyond June 8, 1974, the critical date for limitations pur-

poses, and has remanded for determination of the question

whether that assignment was negligent and, if so, for de-

termination of the amount of damages. I accept the ma-

jority’s finding of fact.

It seems to be conceded by all that appellant took leave

of absence from heavy work as a sectionhand on December

7, 1973. Thus, we have a final date of injasx no later than

December 7, 1973 but perhaps a continuing technical as-

signment as a sectionhand after June 8, 1974.

11 If the district court finds that the Railroad’s repeated assign-

ment of Fletcher to heavy labor became ne igent at some

—. then it will necessarily determine the damages award.

amages for ne ge ai assignment may include loss of

wages, actual and or ive medical expenses, pain and

su wal 4 and loss of future earning capacity. Isgett v. Sea-

board Coastline R. R., supra, 332 F. Supp. at 1142-43; Brown

v. Pennsylvania R. R., 179 F. Supp. 858 (W. D. Pa.), aff’d, 282

F, 2d 522 (3d Cir. 1960).

App. 17

In such circumstances the holding of the majority that

there is a timely claim or tolling of the statute of limita-

tions is troubling indeed.

It is elemental that for a statute of limitations to begin

to run on a negligent act, some injury or damage must

oceur which will entitle the victim to maintain the cause of

action. Continental Grain Co. v. Fegles Const. Co., 480

F, 2d 793, 797 (8th Cir. 1973) (Minn. law). By extension

it seems to follow that occurrence of a mere negligent act

without injury cannot constitute a continuing tort suffi-

cient to toll the statute of limitations. Garelick v. Goer-

lich’s, Inc., 323 F. 24 854, 856 (6th Cir. 1963). See also

Fitzgerald v. Seamans, 553 F. 2d 220, 230 (D. C. Cir. 1977).

It is one thing to say that a continuing or repetitive

injury within the statutory period may bring forward

earlier injuries or aggravations, Donaldson v. O’Connor,

493 F. 2d 507, 529 (5th Cir. 1974), vacated on other

grounds, 422 U. S. 563, on remand, 519 F. 2d 59 (1975) ;

Fowkes v, Pennsylvania R. R., 264 F. 2d 397, 399 (3d Cir.

1959) ; it is quite another to say that a continuing tort ex-

tending into the statutory period but unaccompanied by

injury within that period will bring forward pre-period

injuries. Since I am not prepared to go that far, I re-

spectfully dissent from so much of the opinion and result

reached by the majority as would reverse or remand in

part.

A true copy.

ATTEST:

CLERK, U. 8S. COURT OF APPEALS,

EIGHTH CIRCUIT.

App. 18

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 77-0-178

DONALD D. FLETCHER,

Plaintiff,

vs.

UNION PACIFIC RAILROAD COMPANY,

a corporation,

Defendant.

MEMORANDUM OPINION

(Filed March 15, 1979)

This action was commenced, and the jurisdiction of

this Court properly invoked, under the provisions of the

Federal Employers’ Liability Act (FELA), 45 U.S.C.

$51, et seq. Plaintiff Donald Fletcher, an employee of

the defendant Union Pacific Railroad Company (U.P.),

alleges that he sustained a compensable work-related back

injury in 1962 while shoveling crushed rock in the course

of repairing a section of railroad track in Omaha, Ne-

braska. Plaintiff further alleges that the condition of his

back steadily worsened over the ensuing years until finally,

in July, 1974, he underwent surgery and a spinal fusicn

was performed. This suit was thereafter filed in June of

1977.

The case was tried to this Court sitting without a jury.

At the close of the plaintiff’s case, U. P. moved to dismiss,

claiming that the action was time-barred under FELA’s

three-year statutory limitation period. The defendant did

App. 19

not thereafter present any evidence and the cause was thus

submitted. For the reasons stated herein, the Court will

enter a separate order granting defendant’s motion to dis-

miss.

Damage actions under FELA must be commenced

“within three years from the day the cause of action ac-

erued.” 45 U.S.C. §56. It is well settled that where the

source of injury is traumatic, the plaintiff’s cause of action

accrues under this section on the day the injury is sus-

tained even though the full extent or seriousness of the

injury is not ascertained until a later date. DeHerrera v.

Union Pacific Railroad, No. 78-1563, Slip Op. at 5-6 (10th

Cir. Dec. 14, 1978); Holifield v. Cities Service Tanker

Corp., 421 F. Supp. 131, 184 (E. D. La. 1976), aff’d 552 F. 2d

367 (Sth Cir. 1977) ; Felix v. Burlington Northern, Inc., 355

F. Supp. 1107, 1109 (D. Minn. 1973); Deer v. New York

Cent. R. Co., 202 F.2d 625 (7th Cir., 1953).!_ Such is the

case here. Mr. Fletcher testified that as he was finishing

his shoveling activity something in his back suddenly

“popped,” causing instant and severe pain. He was at

that moment fully aware of the fact of injury. The Court

thus concludes that plaintiff’s cause of action accrued on

March 21, 1962, the date his injury was sustained. This,

of course, is some fifteen years before suit was brought.

1 A distinction is drawn in FELA cases between traumatic in-

juries and industrial diseases. An exception to the usual

accrual date is recognized where the nature of the injurious

event is such that its symptomatic impacts are not immedi-

ately manifest. See Urie v. Thompson, 337 U. S. 163, 169-70

(1949) (silicosis contracted through long-term inhalation of

silica dust); Young v. Clinchfield Railroad Co., 288 F. 2d 499,

502-03 (4th Cir. 1961) (same).

App. 20

For practical purposes, the plaintiff does not dispute

the above conclusion and has shown the Court no authority

supporting an argument that a different accrual standard

is applicable to FELA cases than is generally applicable

to other tort actions for personal injuries. Instead, the

assertion is made that the defendant is equitably estopped

from invoking the statute of limitations as a bar to this

action and this is the issue before this Court.

In this connection, it is well established that an em-

ployer may not avail himself of the statute of limitations

if his own wrong, or that of his agent, has prevented the

plaintiff from filing his claim within the limitations period.

For instance, i! the employer, or a physician acting on be-

half of the employer, misrepresents to the employee the

true nature and extent of his injury and thereby induces

the employee to forego his cause of action, the employer

may not thereafter rely on the statute as a defense to the

employee’s untimely claim. Moreover, the misrepresenta-

tion need not be intentional or fraudulent, so long as it is

relied upon in good faith by the employee and in fact mis-

leads him in respect to his awareness that a cause of action

exists. Holifield v. Cities Service Tanker Corp., supra,

421 F.Supp. at 135; Mumpower v. Southern Railway Co.,

270 F. Supp. 318, 319 (W. D. Va. 1967). In support of his

contention that U.P. is thereby estopped from relying on

the statute of limitations in this case, plaintiff relies on the

following course of events.

The evidence shows and the Court finds that immedi-

ately after he injured his back, Fletcher was taken to the

Union Pacific Railroad Employees’ Hospital Association

dispensary (UPREHA). The UPREHA is an association

App. 21

of U.P. employees which provides a variety of medical

services for its employee members. Though the staff,

management and control of the UPREHA are wholly inde-

pendent of U.P. management, a medical dispensary is

operated on U.P. premises. Fletcher was treated at this

dispensary and released the same day. Because of pain

associated with his injury, Fletcher was unable to return

to his normal work duties for approximately two months.

During the next several years, Fletcher’s back gave him

occasional, and sometimes serious, difficulty in perform-

ing his duties as a section hand, which duties include a sub-

stantial amount of heavy labor.

In February of 1966, responding to complaints of back

pain, Fletcher was referred by the UPREHA to the office

of Gross, Iwersen, Kratochvil and Klein, orthopedic sur-

geons. This office has treated Fletcher since that time.

Plaintiff’s hospital records, which were introduced in evi-

dence, reflect that between February of 1966 and July of

1973, Fletcher was admitted to the hospital on at least five

different occasions, each time complaining of back pain.

Tests were administered and diagnoses rendered. At var-

ious times during this period, Fletcher was diagnosed, at

least tentatively, as suffering from chronic back sprain,

lumbar dise syndrome, sciatic neuritis, dorsal lumbar ar-

thritis, and functional psychoneurosis. Treatment for his

condition included medication, exercise programs, and

traction therapy, both in the hospital and on an out-patient

basis. These treatments met with varying degrees of suc-

cess, but each time Fletcher’s return to work resulted ulti-

mately in a recurrence of pain. Fletcher also sought the

help of chiropractors and others. He gave up working in

December of 1973 and took a leave of absence because he

7%

App. 22

felt he was unable to continue. Finally, in July of 1974,

under the care of Doctor Bernard Kratochvil, Fletcher was

diagnosed as having an unstable back and a spinal fusion

was performed.

Plaintiff claims that it was not until the spinal fusion

was performed that a definitive medical basis could be

discerned for his continuing back problems. The earlier

“misdiagnoses” of plaintiff’s condition, it is argued, served

to conceal from Fletcher the true extent and precise nature

of his injuries and misled him into ‘a belief that no reason

existed which would prevent him from continuing his job as

a section hand. Finally, plaintiff contends that because

of these misdiagnoses U.P. should not now be allowed to

rely on the statute of limitations to bar Fletcher’s claim.

The Court has serious doubts that the doctrine of

equitable estoppel has any application whatever to the

facts of this case. As noted above, an estoppel is made

out only when the plaintiff has demonstrated that (1) the

employer or his agent (2) misinformed the plaintiff, and

(3) thereby misled the plaintiff in respect to his cause of

action. In this case the doctors who treated Fletcher were

not employees or agents of U. P., but members of an inde-

pendent firm of physicians to which Fletcher was referred

by the employees’ hospital association. Moreover, on the

evidence presented, this Court is unable to conclude that

any of the various diagnoses of Fletcher’s condition were

medically inaccurate when made, though surgery was not

indicated until 1974. Finally, and most importantly,

Fletcher was not misled. He was well aware that he had

a back injury which seriously impaired his ability to per-

form his job. Fletcher related this fact to his doctors and

App. 23

sought their assistance in receiving less strenuous work

duties. By deposition, Doctor Kratochvil testified to the

following conversation between himself and Fletcher which

transpired in July of 1973:

Dr. Kratochvil: Why don’t you get a different job?

Fletcher: I was hired for this job, and this is the

job I have the rest of my life.

Dr. Kratochvil: There must be something else you can

do on the section besides this.

Fletcher: Yeah. There is a flagging job that I

could do.

Dr. Kratochvil: What do you want me to write?

Fletcher: Just tell them that I can’t do that heavy

work.

By letter dated July 11, 1973, Doctor Kratochvil wrote to

W. A. Ridge, superintendent of the Nebraska Division of

U.P., stating: “Dear Mr. Ridge: Regarding Donald D.

Fletcher. Because of his back condition, I recommend Mr.

Donald Fletcher be given less strenuous work.”

Following his consultation with Doctor Kratochvil,

Fletcher returned to his job as a section hand and con-

tinued working until December 7, 1973, when, due to reeur-

ring back pain, he took an extended leave of absence. In

February of 1974, Fletcher consulted Doctor Daniel Me-

Kinney, a neurologist. Doctor McKinney, noting Fletcher’s

1962 injury and subsequent history, diagnosed Fletcher as

“probably suffering from a chronic degenerative inter-

vertebral dise or chronic lumbar strain.’

Under the facts thus developed at trial, the Court must

grant defendant’s motion to dismiss. This is clearly not a

case in which a company doctor tells an injured workman

App. 24

that nothing is wrong, and then, years later, a slumbering

symptom suddenly erupts and disables the plaintiff. On

the contrary, Fletcher knew he was injured from the out-

set. He knew the injury impaired his ability to work.

Fletcher’s doctors confirmed that knowledge at least as

early as July of 1973, and again in February of 1974, more

than three years before this suit was filed. Under these cir-

cumstances, the Court can find no basis for holding that

the provisions of the statute of limitations were tolled, or

that U.P. should, in equity, be estopped from relying

thereon. Accordingly, the Court will enter a separate

order granting defendant’s motion to dismiss.

By the Court:

/s/ Albert G. Schatz

Judge, United States District Court

App. 25

APPENDIX C

JUDGMENT

UNITED STATES COURT OF APPEALS

For the Eighth Cireuit

No. 79-1472, September Term, 1979

DONALD D. FLETCHER,

Appellant,

VS.

UNION PACIFIC RAILROAD COMPANY,

a corporation,

Appellee.

(Filed May 7, 1980)

APPEAL FROM the United States District Court for

the District of Nebraska.

THIS CAUSE came on to be heard on the original

designated record of the United States District Court for

the District of Nebraska and briefs of the respective par-

ties and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court, that the judgment of

the said District Court, in this cause, be, and the same is

hereby, reversed in part in accordance with the opinion

of this Court.

It is further ordered by this Court that this cause be,

and it is hereby, remanded to the said District Court for

proceedings consistent with the majority opinion of this

Court.

May 7, 1980

—__

App. 26

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 77-0-178

DONALD D. FLETCHER,

Plaintiff,

vs.

UNION PACIFIC RATLROAD COMPANY,

a corporation,

Defendant.

(Filed March 15, 1979)

ORDER

In accordance with the memorandum opinion entered

herein this date,

IT IS HEREBY ORDERED that defendant’s motion

to dismiss plaintiff’s complaint should be and the same is

hereby sustained, each party to pay its own costs.

By the Court:

/s/ Albert G. Schatz

Judge, United States District Court

App. 27

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

CIV. 77-0-178

DONALD D. FLETCHER,

Plaintiff,

Vs,

UNION PACIFIC RAILROAD COMPANY,

a corporation,

Defendant.

(Filed May 4, 1979)

ORDER

This matter coming on for hearing with reference to

plaintiff’s motion to alter judgment or in the alternative

for a new trial (Filing No. 29), and the Court having

examined and studied the briefs filed in support of and in

opposition to said motion and having heard oral argument

by counsel, and being fully advised in the premises,

IT IS HEREBY ORDERED that plaintiff’s said mo-

tion be and the same is hereby overruled.

By the Court:

/s/ Albert G. Schatz

Judge, United States District Court

App. 28

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1472, September Term, 1979

DONALD D. FLETCHER,

Appellant,

vs.

UNION PACIFIC RATLROAD COMPANY, ETC.,

Appellee.

Appeal from the United States District Court

for the District of Nebraska

The Court, having considered appellee’s petition for

rehearing and suggestions for rehearing en bane and being

now fully advised in the. premises, hereby orders the peti-

tion for rehearing and suggestions for rehearing en banc

denied.

Judges Bright, Ross and Henley would grant the peti-

tion for rehearing en bane,

June 26, 1980

App. 29

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1472, September Term, 1979

DONALD D. FLETCHER,

Appellant,

vs.

UNION PACIFIC RAILROAD COMPANY,

a corporation,

Appellee.

Appeal from the United States District Court

for the District of Nebraska

On motion of appellee, it is now here ordered that the

issuance of the mandate herein be, and the same is hereby,

stayed to and including September 24, 1980, If within

that time there is filed with the Clerk of this Court a cer-

tificate of the Clerk of the Supreme Court of the United

States that a petition for writ of certiorari has been filed,

the stay hereby granted shall continue until the final dis-

position of the case by the Supreme Court.

July 25, 1980