Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Cochran, Retired Justice
NORFOLK AND WESTERN
RAILWAY COMPANY
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 950585 January 12, 1996
ALFRED REID JOHNSON
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
In November 1989, plaintiff Alfred Reid Johnson began
employment with defendant Norfolk and Western Railway Company as
a "carman welder, junior student mechanic." After a period of
training in welding and "grinding," the plaintiff, age 38, was
assigned to defendant's "reclamation shop" in the City of
Roanoke.
There, plaintiff began welding and grinding on "bolsters"
and "side frames," components of wheel assemblies on which
freight car bodies are mounted. Grinding involved use of a hand-
held, two-handle, pneumatic tool having an abrasive wheel turning
at 6,000 revolutions per minute. Grinding on the bolsters and
side frames was performed before and after welding in order to
smooth the welds and the surface of the metal. The grinding
produced vibration described as "pretty tough."
During 1990, the plaintiff began experiencing pain in his
forearms and hands with associated numbness and difficulty in
finger dexterity and manipulation. He sought medical attention
and eventually was diagnosed as having bilateral carpal tunnel
syndrome, which was worse on the right side. This condition
involves "compression of the median nerve as it passes through
the tunnel of the wrist known as the carpal tunnel."
In 1991, the plaintiff had bilateral surgery to release
pressure on the carpal tunnels; this relieved the symptoms.
Later, he returned to work, performing the same duties. After a
while, the symptoms returned, and the defendant took the
plaintiff "out of service" in April 1993.
The plaintiff's condition resulted from vibration connected
with the grinding. The injury rendered him unable "to obtain or
retain employment in the economy."
The plaintiff filed the present action against the defendant
under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51
et seq., seeking recovery for his injuries. In an amended motion
for judgment filed in September 1994, plaintiff alleged defendant
exposed him to excessive vibration from the grinders which
"required constant repetitive use of both hands." He asserted
defendant negligently failed to provide him a reasonably safe
place to work, failed to provide suitable equipment to perform
his assigned task, failed to warn him of unsafe working
conditions, and failed to provide adequate instructions for the
safe use of the equipment. Responding, defendant denied the
allegations of negligence and denied it was indebted to the
plaintiff.
In a four-day trial beginning December 19, 1994, a jury
found in favor of the plaintiff and assessed his damages at
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$200,000. The trial court denied defendant's motion to set the
verdict aside and entered judgment on the verdict in a January
1995 order, from which we awarded the defendant this appeal.
The defendant assigns three errors, the first of which
raises the main question on appeal. That question is whether the
trial court erred in failing to rule as a matter of law that
defendant was free of primary negligence when, according to
defendant, plaintiff's evidence failed to establish defendant
deviated from any applicable standard of care, failed to show his
injury was foreseeable, and failed to establish causation.
The plaintiff comes to this Court in a strong position. He
is fortified with a jury verdict confirmed by the trial judge;
all conflicts in testimony have been resolved in his favor.
Accordingly, the judgment below will not be set aside "unless it
appears from the evidence that such judgment is plainly wrong or
without evidence to support it." Code § 8.01-680.
Applying settled appellate principles, we shall view the
evidence, much of which was conflicting, and all reasonable
inferences flowing from the evidence in the light most favorable
to the plaintiff. Prior to employment by defendant, the
plaintiff had used hand tools while in the Navy, had worked in
construction, had served as a police officer, had driven large
trucks, and had worked as a mechanic using mostly hand tools,
some of which were pneumatic. Prior to working for defendant in
November 1989, he had experienced no "problems" with his hands,
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wrists, or arms.
Upon reporting to work, defendant sent plaintiff to Georgia
for training. This training did not include any instruction
about "wrist posture," "static pressure" on wrists, or about
vibration from any of the tools or equipment plaintiff would be
using in his job.
When plaintiff returned from training, defendant assigned
him to a shop where he was involved for several weeks in welding
and grinding on grain hopper cars. Next, defendant transferred
him to the reclamation shop in February 1990. There, plaintiff
performed his task from an upright position, standing on a flat
surface. The heavy pieces of metal being worked upon were not
lifted by the employee but were moved into position for welding
and grinding by a crane and rotated by a "jig."
The work in the reclamation shop was not an assembly line
operation in that the grinding was not a continuous function.
Plaintiff did not grind and weld steadily during an eight-hour
work period. Instead, he would perform these tasks for
"[p]robably four to five hours" daily, according to the
plaintiff, and on an average of three hours daily, according to
his expert witness. He was required "to do" ten to eleven
bolsters per day. Later in 1990, plaintiff "moved from doing
bolsters to start doing the side frames." The side frame quota
per employee per work period was nine.
After working in the reclamation shop for several months,
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plaintiff began to awaken at night with his hands "throbbing and
no feeling in them." He had "no idea" of the cause of the
discomfort. He continued to work for "a couple of months" before
going to a physician in July 1990 because the condition had
worsened. During the course of his treatment, plaintiff was also
seen by a neurologist, a neurosurgeon, and a rehabilitation
specialist. All four of his physicians diagnosed plaintiff with
carpal tunnel syndrome. The rehabilitation specialist testified
that plaintiff's "carpal tunnel was very consistent with his
history of grinding," and that plaintiff sustained the injury as
a result of vibration.
The plaintiff presented evidence that medical knowledge
existed many years before he was employed by defendant of a
relationship between grinding and carpal tunnel syndrome.
Numerous articles of medical literature published before 1990
were documented in the evidence that listed vibration as a risk
factor for occupational carpal tunnel syndrome.
For example, the results of a study published in 1987 in the
American Journal of Industrial Medicine, after indicating that
the grinder was one of the hand tools used to develop information
for the study, stated: "While vibration and awkward posture may
be important risk factors for carpal tunnel, only vibration
appeared to be important in this particular investigation." In
1981, an article entitled "Personal and Occupational Factors
Associated With Carpal Tunnel Syndrome" was published in the
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Journal of Occupational Medicine. The author stated: "In the
present study use of vibrating tools was found to be strongly
associated with carpal tunnel syndrome." Dr. Mahmoud Ayoub, the
defendant's expert witness in the fields of industrial
engineering and ergonomics (defined as "the study of the
relationship between people and the equipment or the systems that
they use"), in an article published in 1989, opined that the
"number one job type that placed one at risk for carpal tunnel
syndrome" was "buffing and grinding." Ayoub explained during
cross-examination that his conclusion was meant to apply only if
the worker was engaged in grinding continuously for eight hours.
The evidence established that during plaintiff's period of
employment by defendant and during the period of development of
medical knowledge about the occupational causes of carpal tunnel
syndrome, defendant had a medical department staffed by licensed
physicians. The defendant admitted "that in 1990, or before, its
Medical Director and Medical Department were generally aware that
certain literature existed which hypothesized that exposure to
excessive vibration from hand tools may precipitate cumulative
trauma disorders such as Carpal Tunnel Syndrome." The plaintiff
also established that, during the period beginning in the late
1960s to and including the early months of his employment with
defendant, no information was communicated by defendant's medical
department to employees about the symptoms of carpal tunnel
syndrome as they related to the use of grinders or welding
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apparatus.
The plaintiff presented evidence about the knowledge of the
industrial community regarding carpal tunnel syndrome during the
relevant period of time. For example, Dr. Michael D. Shinnick,
an expert in industrial engineering and ergonomics, testified
that since the late 1970s industry has been aware that risk
factors for the development of occupational carpal tunnel
syndrome have included repetitiveness ("the number of cycles or
the number of times that a person experiences a motion or even a
flexion"), vibration, force (torque from using a tool having "a
lot of" revolutions per minute), and "static positioning or
holding something in the same position for continued periods of
time." These factors were present in the plaintiff's job.
Shinnick testified that industry had established methods to
prevent occupational carpal tunnel syndrome. These include
making an analysis of the tools used and performing an ergonomics
study. If the study identifies hazards at the work site,
prevention and control is employed, which should include
redesigning the tools, redesigning the methods used in performing
the work, use of protective equipment (such as gloves and
"vibration isolator-type grips"), medical tracking of workers,
and training and education of employees.
Shinnick, who had examined plaintiff's job site in
defendant's reclamation shop, testified that he "saw absolutely
all of the risk factors associated with producing carpal tunnel.
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There is a high degree of repetitiveness in the fact that even
though the cycle time might be a number of minutes, the
repetitiveness is holding the grinder in a static position." He
emphasized: "I saw repetitiveness. I saw vibration."
Shinnick opined that the hazards he observed "were of
sufficient magnitude to invoke some ergonomic action." He added,
"My opinion is that this would be a high priority job. One would
begin to initiate the process of analyzing the job and invoking
engineering controls and changing them." The evidence showed
that defendant had conducted no formal analyses of the jobs in
its reclamation shop prior to the filing of this action.
Moreover, defendant admitted that, as early as 1988, it had
purchased grinders with a label attached to each grinder's
removable "guard" which stated: "Warning: Repetitive work
motions or exposure to vibration may be harmful to your hands and
arms." Also, the catalog from which defendant ordered the
grinders used in the reclamation shop stated that "excessive or
improper use may result in `white finger' or carpal tunnel
syndrome." Defendant did not advise its workers of either of
these warnings. And, there was evidence that defendant did not
warn its workers about grinder use as related to wrist positions
and carpal tunnel syndrome until 1994.
On appeal, incorrectly placing a slant on the evidence in a
light more favorable to it, the defendant argues that plaintiff
failed to present evidence of any deviation from a standard of
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care, failed to establish causation, and failed to establish his
carpal tunnel syndrome was foreseeable where the evidence showed
no prior claims of such injury had ever been made by reclamation
shop workers. We do not agree with any of defendant's
contentions.
The principles applicable to this case are settled. Because
whether negligence has been established for purposes of the FELA
is a federal question, federal decisional law formulating and
applying the doctrine governs in cases in state courts. Stover
v. Norfolk and Western Ry., 249 Va. 192, 199, 455 S.E.2d 238, 242
(1995). "Under the FELA, a plaintiff's proof must `justify with
reason the conclusion that employer negligence played any part,
even the slightest, in producing the injury . . . for which
damages are sought.'" Norfolk and Western Ry. v. Hodges, 248 Va.
254, 260, 448 S.E.2d 592, 595 (1994) (quoting Rogers v. Missouri
Pacific R.R., 352 U.S. 500, 506 (1957)). "Reasonable
foreseeability of harm is an essential ingredient of FELA
negligence." Stover, 249 Va. at 201, 455 S.E.2d at 244 (citing
Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 117 (1963)).
Ordinarily, the issue of FELA negligence, including questions of
causation and foreseeability, should be decided by the jury.
Hodges, 248 Va. at 260, 448 S.E.2d at 595.
Under the FELA, a railroad has a nondelegable duty, which is
continuing, to exercise reasonable care in furnishing its
employees a safe place to work. Id. (citing Atchison, T. & S. F.
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Ry. v. Buell, 480 U.S. 557, 558 (1987), and Bailey v. Central
Vermont Ry., 319 U.S. 350, 353 (1943)). "The employer must
perform proper inspections to discover dangers in the place where
employees are required to work, and after determining the
existence of dangers the employer must take reasonable
precautions for the employees' safety." Id. at 260-61, 448
S.E.2d at 596 (citing Williams v. Atlantic Coast Line R.R., 190
F.2d 744, 748 (5th Cir. 1951)).
In the present case, our responsibility is not to
redetermine the facts on appeal. Rather, we must decide whether
there was credible evidence to raise a jury issue on the question
of primary negligence. If so, the judgment must be affirmed.
A rehash of all the evidence we have just summarized is
unnecessary to support the conclusion we now reach that a jury
question was presented on the issues of negligence, causation,
and foreseeability. It is sufficient to point out that the jury
was entitled to find from the evidence that plaintiff, prior to
his employment by defendant, had no problems with his hands or
arms; and, that after working in the reclamation shop for several
months, he developed carpal tunnel syndrome due to grinder
vibration, an injury that eventually became permanent.
The jury also was entitled to find that prior to 1989,
defendant had actual knowledge, from manufacturer's warnings, of
industry opinion about the relationship between grinder vibration
and carpal tunnel syndrome; and that, prior to 1989, defendant
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had actual or constructive knowledge of opinion in the medical
community about such relationship.
Finally, the jury was entitled to find that defendant
reasonably should have foreseen injury to its reclamation shop
workers if precautions were not taken to address the problems of
grinder vibration; that accepted standards and methods existed to
allow the railroad, in the exercise of ordinary care, to provide
a safe work site for grinder users; and that defendant
negligently failed to warn of the known danger and failed to
provide adequate instruction to its workers regarding the
symptoms of carpal tunnel syndrome and the methods to be used to
avoid its onset.
In sum, paraphrasing Hodges, we hold the plaintiff presented
proof sufficient to take the case to the jury that employer
negligence played a part, even the slightest, in producing the
injury for which damages were sought.
The defendant dwells on the contention that because no
person complained prior to plaintiff's injury regarding excessive
vibration from the tools used in the reclamation shop and because
no acceptable vibration standard for the workplace was shown to
exist, plaintiff's injury was not foreseeable and no deviation
from any standard of care was established. This contention
disregards the overwhelming evidence, and reasonable inferences
drawn from the evidence, that vibration from grinder use was a
known risk factor in development of carpal tunnel syndrome, that
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all the risk factors associated with producing the malady were
present in defendant's reclamation shop, and that the risk
factors were of sufficient magnitude to invoke ergonomic action,
which defendant failed to take. The plaintiff's evidence
established that whatever may have been his "dosage" of
vibration, it was of a sufficient level to cause him to acquire
occupational carpal tunnel syndrome, and defendant should
reasonably have anticipated such a result. This amounts to
negligence, causation, and foreseeability.
In conclusion, we have considered defendant's two remaining
assignments of error dealing with what it contends to be
speculative testimony of one of plaintiff's experts and admission
of irrelevant evidence relating to conditions in the workplace
having no effect on plaintiff's injury. There is no merit to
either contention.
Accordingly, we hold the trial court did not err in
submitting the case to the jury and in refusing to grant
defendant's motion to set the verdict aside. Therefore, the
judgment below will be
Affirmed.
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