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What Needs to be Done to Effectively Argue for Cumulative Trauma

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  • What Needs to be Done to Effectively Argue for Cumulative Trauma

    Repetitive motion injuries refers to the idea that if you keep doing the same task over and over with one part of your body, it will eventually wear out faster than your other body parts as a result of the repetition. For example, a baseball pitcher may wear out his throwing arm faster than if he didn't constantly do the same motion with that arm. In the on-duty work injury context, repetitive motion best describes what happens to a worker on an assembly line who is doing the same task, such as using scissors to cut open a chicken day after day after day.

    However, in the railroad context, I prefer the phrase cumulative trauma because the railroad tries to defend these cases by saying there are very few railroad jobs which are truly repetitious in the same way that a factory worker or baseball pitcher's job is. The railroad's argument is that although a conductor may throw a number of switches each day, he isn't doing nothing but throwing switches all day. Likewise, they argue that although a maintenance of way worker may be walking on the big ballast walk much of the day, he is not walking all day. This argument by the railroad is really based upon a false premise that you have to be doing exactly the same thing in a factory assembly line fashion in order for your musculoskeletal system to give out. In fact, cumulative trauma is a better way to describe it because many actions of railroad workers, although not necessarily repetitive, do cause cumulative wear on a particular part of the body over time, particularly in light of a 20 or 30 year career.

    Getting a doctor who is prepared to testify on behalf of his patient that the railroad work likely injured his body over time can sometimes be difficult. The general attitude of most doctors is, "I treat the disease; I do not worry about exactly how it arose." However, without the doctor's opinion that the railroad work caused the injury more likely than not, the plaintiff is not going to be able to get anywhere in court. The judge will only allow the claim to go forward if the doctor is willing to render this opinion on causation to a reasonable degree of medical probability. Thus, it is extremely important that the attorney handling such a case be knowledgeable about cumulative trauma and how to succeed in court.

    One of the main ways our law firm is able to prove to the doctor and, ultimately, to the court about the causal connection between the injury and the repetitive motion is by use of an ergonomist. An ergonomist is a scientist who has studied work tasks. Although not a medical doctor, the ergonomist can link particular actions at work to wear and tear on the body by showing how much pressure and force is necessary and exerted by a railroad worker to do different things. Typically, we would have an ergonomist go do a job study at the work site of the client to prove the exposure to cumulative trauma effects of the job on that person's body. Once a study is done, the ergonomist report can be provided to the doctor, which, together with the patient's own history of his work, will typically help the doctor to render opinions which are reasonable and convincing.

    Obviously, all of the expert testimony necessary in a cumulative trauma case costs money. It would not be uncommon for our law firm to spend $20,000.00 to put on such a case. This is not money that goes to the lawyer for his time, but rather is what we have to pay these various experts in order to properly prove this kind of repetitive injury case to win in court. Although the law firm will advance these sums for expert testimony on behalf of the injured worker, the money has to be reimbursed at the time of the resolution of the case. To succeed in handling cumulative trauma cases the lawyer must be knowledgeable enough as to how to put the case on should that be required in order to make sure to get fair compensation for the client. Because our law firm knows how to try the case in court if needed, we often do not have to, and can settle the case before trial.

    About Us: Shapiro, Cooper, Lewis & Appleton FELA/Railroad Injury Attorneys have authored hundreds of railroad and FELA articles on our main website, and have over 100 years combined injury law experience. Firm attorneys included among “The Best Lawyers in America” 2010 Edition and the law firm has the highest rating (AV) granted by Martindale-Hubbell attorney rating service.
    John Cooper
    Norfolk, Virginia
    [Railroad/FELA Attorney-
    Licensed: VA, WV, and NC]

  • #2

    Dear Yardlimits Members-

    For those of you that did not know, the Shapiro, Cooper, Lewis & Appleton firm has (1) agreed to be an "attorney advertiser" on YL and (2) has also voluntarily committed to give a .05% commitment from all their FELA fees from all their FELA cases to the Fallen Brother Fund.

    I cannot tell you how wonderful this firm is and how fine their lawyers are; most of the partners have either been officers in or Past-Presidents of the AAJ railroad section. Their recognition that the community is the way of the future shows great foresight on their part and their voluntary commitment to the FBF demonstrates that they want to "give back" to the people that have been so much a part of their professional lives.

    I hope you join me in welcoming them as YL Forum Members, a YL advertisers, as contributors to the FBF and, finally, and equally as important, as contributor in the legal forum and other forums.

    Since "we started this Forum and some of the other "new directions of YL the past 9 months, I have tried my best to "keep it interesting" but I have been pretty much on my own and that is not good for you as Members nor me [and my family!].

    So....Welcome John Cooper & Rick Shapiro and all other members of your wonderful firm!

    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365


    • #3
      Indeed welcome to the YardLimits family.... we're all glad you guys are here on our side!! We've already seen some great information posted & looking forward to more!
      Standard lengthy disclaimer / warning / terms of use: All postings by "NSRLink" are fictional, public information, for entertainment purposes only, should never be taken seriously, and in no way should be construed to represent the positions, views, ideas, or thoughts of any railroad carrier, person, entity, organization, or otherwise. By reading anything posted or associated with the user ID, "NSRLink," any entity agrees they shall not be offended, harmed, sad, defamed, inflamed, upset, mad, harassed, have their feelings hurt, or similar. Parties or entities not agreeable to these "terms of use" are hereby required to block this profile "NSRLink" and agree to not read or view posts so they will no longer be offended, harmed, sad, defamed, inflamed, upset, mad, harassed, have their feelings hurt, or similar in any manner, and may do so via UserCP "Edit ignore List" & adding "NSRLink" to the list. Thank you & good day to you.


      • #4
        welcome JCooper.
        live well ......laugh often.........Love much

        shop local
        buy American

        never wrestle with a pig, you both get all dirty & the pig likes it


        • #5
          I recently found out about this web site and joined up, as browsing thru the postings I stumbled into this one and it struck a nerve with me. I was an Amtrak engineer, I was injured twice on the job, with the second one being the nail in the coffin so to speak. I suffered two lower back injuries, two crushed discs in the lower back at L4/5 and L5/S1, resulting in not one, but two surgeries with instrumentation consisting of eight screws and two rods to hold the fusion in place.

          I was represented by a law firm and they did a great job on my case, well as best as could be done. I had a great doctor too, in which if anyone wants to know about him, I'd be happy to pass his information along as after handling my case he's very familiar with how the RR can do damage to ones body in particular lower backs. He was ready and willing to testify on my behalf in court, he was to the point that there was no question that my injury was the result of constant shock and vibration from running the engines, which was exaggerated on my second injury with a defective seat, rough riding engine and rough track.

          Amtrak continually said, well he had degenerative disc disease, that he was over weight, which we all know you can be as skinny as a rail and if it's one traumatic event that does it, the party is over. All persons have some degree of degenerative disc disease, it is just a matter of how it progresses over the years and to what extent brings out the issues and certainly the repetitive motions, shock and vibrations, rough riding engines, bad track, you name it.

          It's very frustrating to work your way up through the ranks as I did, only to be sucker punched by lack of maintenance on the equipment, all anyone is to the carriers are a number, once your used up they throw you out like a piece of trash. I try to bring the point across to the brothers and sisters I keep in contact with that you have to take care of yourself, cya and write up that equipment, talk to the local chairman, make your voice heard so you don't end up like I did.

          I'm more than happy to share anything about my case with anyone who's interested, because I want to help to educate others, my case settled out of court and I signed no confidentiality agreements, so aside from settlement amounts I'm happy to discuss anything else related to what I went thru.
          Last edited by FELA FELLA; 01-15-2010, 05:21 PM. Reason: Advertisin Violation


          • #6
            Have y'all researched cubital tunnel syndrome? Potential goldmine with the way we are forced to sit.