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Campbell v. Consolidated Rail Corp.

August 8, 2008


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge



Plaintiff was employed by the defendant railroad companies from 1975 to 2005 and has sued pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., for alleged work-related injuries. Defendants have moved for summary judgment on two grounds: 1) plaintiff's claims for injuries to his hands and knees are barred by the FELA's three-year statute of limitations; and 2) the claim of repetitive-type trauma and injury to plaintiff's hands is barred by his acceptance of a previous settlement for work-related bi-lateral carpal tunnel syndrome. Plaintiff opposes defendants' motion.


The relevant facts in this case are as follows: Plaintiff is a fifty-eight year old welder/foreman who began his railroad career at defendant Consolidated Rail Corporation in September 1976. On June 1, 1999, he began working for defendant CSX. As a welder/foreman, plaintiff's work consisted of 80% to 90% orgotherm or boutet welding. Plaintiff spent the remaining 10% to 20% of his work time doing wire or stick welding. Plaintiff believes that he exposed his hands to constant vibration by using a rail saw and grinders in his work. He started having pain, numbness and tingling in his hands in 1983 which he attributed to his work on the railroad. In 1995, plaintiff underwent bilateral carpal tunnel surgery. He sued defendants for said injury to his hands and received a settlement in 1998. As part of the settlement, plaintiff signed a full release of any and all past or future claims or medical treatment related to his bilateral carpal tunnel syndrome.

During an office visit with his primary care physician for a "CPE"*fn1 on May 4, 2001, plaintiff told Dr. James LaDolce that he had "concerns" regarding his hands, "particularly his right."*fn2 Dr. LaDolce wrote that plaintiff said his hands "hurt" and that he "uses them all the time - hammering, welding and grinding." In addition, Dr. LaDolce wrote that plaintiff complained of pain in his knees "when he bends a lot." According to Dr. LaDolce, plaintiff was "worried that he has bad arthritis."

Dr. LaDolce concluded in his notes that plaintiff suffered from "moderately advanced DJD of the right hand, MP joints of 2nd and 3rd fingers secondary to his work." In addition, Dr. LaDolce noted that plaintiff had "chronic knee pain secondary to bending with his work." There

is no indication in the note of whether Dr. LaDolce discussed these findings or his diagnosis with plaintiff. In connection with his symptoms, Dr. LaDolce advised plaintiff to lose 20 pounds and "[s]tay active in terms of his hands."

Radiographic images taken of both of plaintiff's hands on May 4, 2001, revealed "advanced osteoarthritic change involving the MCP joints of the thumb, index and middle fingers with narrowing, sclerosis and marginal spurring" on the right. The radiologist also noted

"[s]ubchondral cysts" in the heads of the second and third metacarpals and "mild osteoarthritic change at the DIP joints of the middle and ring fingers and at the PIP joints of the index and middle fingers." In plaintiff's left hand, the radiologist observed "osteoarthritic change at the MCP joints of the index and middle fingers, as well as the MCP joint fo the thumb. Osteoarthritic change is also present in the DIP joints of the middle and ring fingers. A subchondral cyst is present at the DIP joint of the ring finger." The "impression" noted on the radiologiy report is "bilateral osteoarthritis, most severe involving the MCP joints of the index and middle fingers, right greater than left." The radiologist also noted that x-rays of plaintiff's knees showed "very minimal osteoarthritis" based on the presence of "mild osteoarthritic changes spurring on the intercondylar eminences bilaterally." During a follow-up visit with plaintiff in July 2001, Dr. LaDolce made no mention of plaintiff's hands or knees.

In September 2003, plaintiff sought treatment for pain in his right knee from Dr. Glenn Axelrod, an orthopedic surgeon. Six weeks later, Dr. Axelrod performed surgery on plaintiff's right knee due to "degenerative changes and a lateral meniscus tear." Plaintiff had a second arthroscopic procedure performed on his right knee in June 2006. Plaintiff commenced the instant action in December 2004 alleging a work-related injury to both knees.

In April 2005, plaintiff saw Dr. George Mtanos, a rheumotologist, at the request of his then primary care physician, Dr. Robert Parke, a partner of Dr. LaDolce. In Dr. Mtanos' letter to Dr. Parke regarding the visit, Dr. Mtanos described plaintiff's history as follows:

Harold was seen at your kind request on 4/22/05. As you know, he is a 56-year old pleasant white male whose symptoms started many years back with pain in the hands. He was given a diagnosis of carpal tunnel syndrome and he underwent surgery on both sides. However, over the years the symptoms have persisted and for the last three years they have been worse. He also started noticing progressive deformity in the hands. The hand pain is constant. it affects the knuckles mainly the MCP an[sic] PIP areas. He is quite stiff in the morning. He is unable to open his hand especially the left one. He has to make an effort to do it. the pain is aggravated by activity. . . . He also has been having knee pain on the right side for many years. He had undergone meniscal surgery by Dr. Axelrod whom he continues to see.

In April 2006, plaintiff filed an amended complaint in this action which added a claim for injuries to both hands and knees and/or aggravation of ...

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