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Dimic v. Northeast Illinois Regional Commuter Railroad Corp.

December 29, 2009


The opinion of the court was delivered by: Judge John A. Nordberg


Plaintiff is seeking to recover for an injury allegedly incurred on June 20, 2005, while cleaning railroad coach cars for defendant Metra. On that day, as alleged in his initial complaint filed three months later, plaintiff was ordered to clean double the amount of railroad cars than he was normally assigned to clean in one day. The reason for the extra work -- again, according to the initial complaint -- was that Metra was short workers that day. See ¶ 9. Plaintiff asserted a single claim against Metra for negligence under the Federal Employers' Liability Act, 45 U.S.C. § 51 ("FELA").

This initial complaint did not contain a lot of detail. It did not describe what the injury was (later revealed to be a shoulder injury) nor did it specifically describe how it happened. Aside from a few general allegations about an unsafe workplace, the complaint pointed to only one specific possible cause; namely the extra work required by the worker shortage. Still, the complaint was sufficient because it sketched the outlines of the lawsuit by focusing on a particular day and by suggesting a specific theory of causation. The impression created was that plaintiff's injury arose out of the blue, acute and unexpected.

Over the course of the lawsuit, however, this initial picture became more complex. As it turns out, plaintiff had worked for Metra for many years and had suffered a series of similar onthe-job injuries. He injured his left wrist in 1997; his left elbow in 1999; and his right elbow in 2000, among other injuries. Several of plaintiff's doctors thought his injuries might all be connected to a larger problem, such as arthritis. Plaintiff believed his job was the cause of his medical problems and filed several claims against Metra, one of them resulting in a sizable monetary settlement.

Perhaps recognizing that his earlier injuries are relevant, plaintiff filed an amended complaint in April 2006 and added a second FELA claim. Plaintiff alleged that Metra knew, as early as 2002, about his medical problems and further knew that his job duties were aggravating those injuries. Despite this knowledge, according to plaintiff, Metra denied his requests to be reassigned to a less physically demanding job such as a desk job. This second claim thus broadened the time frame of the lawsuit and moved the focus to several years before the June 20th injury. It also characterized the injury in different terms. Rather than being solely an acute injury, the second claim portrayed the injury as chronic, the wear and tear over many years gradually causing damage with the June 20th incident serving as the final straw.

It is fair to say that plaintiff's two claims, while not strictly incompatible, are nonetheless in tension with each other. This tension lurks beneath the surface of plaintiff's arguments in several ways. One is causation. If plaintiff already had injuries, was the extra work ordered on June 20th really the primary cause of his shoulder injury? This question relates to Metra's statute of limitations argument (discussed below). Another area is plaintiff's deposition testimony where he insisted, contrary to all other evidence, that his shoulder injury was new and that he had never experienced any problems with his right shoulder, or even his right arm, before June 20th (an issue also addressed below).

Presently before the Court is Metra's motion for summary judgment. Although Metra seems to believe that plaintiff was faking the injury on June 20th, and it in fact fired him several months after the accident because it concluded that he failed to own up to the fact that his shoulder injury was pre-existing, Metra now relies on two narrower arguments for granting summary judgment. The first is that both claims are time-barred under FELA's three-year statute of limitations. See 45 U.S.C. § 56. The second argument is that plaintiff has come forward with no evidence to show that Metra breached any duty to plaintiff.


The facts are largely undisputed and consist primarily of plaintiff's medical history in the ten years before June 20, 2005. The main piece of evidence relied on by both sides is a chronology of plaintiff's doctor and therapist visits. For each visit, there are a few lines of text, presumably taken from the doctor's notes, summarizing the visit and conclusions. This list was prepared by plaintiff's counsel.*fn1

In 1995, plaintiff started working for Metra as a trackman but switched in 1997 to the job of buildings and bridges mechanic. (DF 1.)*fn2 In October of 1997, while working in that job, he felt a "pop" in his left wrist. (DF 2.) Dr. Jablon operated to correct the problem and released plaintiff back to work with the caveat that he could no longer continue as a bridges and building mechanic. (DF 6-7.) Believing his wrist injury was Metra's fault, plaintiff filed a claim against Metra. Represented by the same counsel who is now representing him, plaintiff negotiated a settlement of $190,000 plus payment of medical expenses for ten years. (DF 76-77.)*fn3

In May 1999, plaintiff hyperextended his left elbow at work. Dr. Jablon diagnosed him with left lateral epicondylitis and operated on the elbow. Dr. Jablon then released plaintiff to his job as a coach cleaner. (DF 14-18.)

In September 2000, plaintiff complained of pain in his right elbow. Plaintiff told Dr. Pomerance that the pain traveled up his right arm following the mopping of coach cars. (DF 20.) Both Dr. Pomerance and Dr. Jablon thought the right elbow injury was part of the same condition as the left elbow injury. (DF 21-22.)

In August 2001, plaintiff again reported that his right elbow was hurting from mopping coach cars. (DF 26.) That same month, Dr. Jablon operated on the right elbow, and plaintiff was off work for four months. (DF 27-28.) In January 2002, Dr. Jablon returned plaintiff to his job as a coach cleaner without any medical restrictions. (DF 29.)

On April 15, 2002, plaintiff was mopping under a coach car seat when his left wrist twisted and he felt a "pop," one similar to the "pop" he felt in connection with his 1997 wrist injury. (DF 30-31.) After taking X-rays, Dr. Jablon talked with plaintiff about his ongoing problems with arthritis in his left wrist. (DF 32.) Surgery was performed a month later. (DF 34.)*fn4

Also in April 2002, plaintiff realized that his job as a coach cleaner was causing him problems and made a request, pursuant to the Americans with Disabilities Act, for an accommodation. In this first of two ADA requests, he asked to be closer to a water source so he would have a shorter distance to carry his bucket. (DF 38; Ex. G.) Metra denied the request, stating that plaintiff never produced a medical restriction from a doctor. (DF 39-40.) On June 2002, plaintiff filed a second ADA request, asking that he be given an accommodation of a desk job or one that didn't have any lifting or heavy cleaning. (DF 41; Ex. I) Metra denied the request, again citing the lack of a doctor restriction. (DF 42-43.)

In January 2004, plaintiff complained to Dr. Jablon about his left wrist and about carrying the water bucket in his job. (DF 46.) The next month, plaintiff saw Metra's independent medical examiner, Dr. Fisher, who talked to Dr. Jablon. Neither doctor felt plaintiff should have a medical restriction, although they advised him to put less water his bucket so it would be lighter to carry. (DF 48-49.)

The Month Before the Injury

Beginning around early May 2005, plaintiff saw four doctors in a short period of time --Drs. Jablon, Foreit, Kelly, and Walsh. This period is important as it relates to the disputed issue of whether plaintiff's shoulder injury existed before June 20th.

On May 5, 2005, plaintiff saw Dr. Jablon about a pain in his right wrist. (DF 51.) Dr. Jablon referred plaintiff for an EMG which was conducted by Dr. Kelly. On May 13, 2005, plaintiff told Dr. Kelly that two weeks before he woke up with a right shoulder pain and there had been no triggering event and no relation to work. (DF 52.) In light of plaintiff's medical history, Dr. Kelly speculated whether a cervical problem might explain all his injuries. (DF 53.) Dr. Kelly diagnosed plaintiff with chronic right C5-6 and left C7-8 cervical radiculopathy. (DF 54.) On June 1, ...

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