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Lecy v. Burlington Northern6/24/2003
This appeal arises out of an action brought under the Federal Employers Liability Act (FELA), 45 U.S.C. ยง 51 (2002). The district court granted summary judgment in favor of respondent Burlington Northern and Santa Fe Railway Company, concluding that appellant's claims for damages associated with knee injuries are barred by the FELA three-year statute of limitation. Appellant argues that summary judgment was granted in error, because his cause of action arose within the three-year statute of limitations and respondent's continuing negligence tolled the statute of limitations.
Because we conclude that there are material issues of fact regarding notice to appellant of the left-knee injury and the actual cause of that injury, summary judgment as to the left-knee claim is not appropriate. But because there are no disputed issues of material fact regarding notice to appellant of the injury to his right knee, and because the statute of limitations was not tolled, we affirm in part, reverse in part, and remand.
FACTS
Appellant Duane Lecy has worked as a laborer with physically demanding job responsibilities for Burlington Northern and Santa Fe Railway Company since 1966. He alleges that he was regularly required to work while kneeling, without the aid of proper kneepads, and it is undisputed that his work as a laborer required the lifting of heavy objects and significant use of ladders. Appellant asserts that this work environment, combined with inadequate tools to complete his work assignments, caused permanently disabling injuries to his knees.
Appellant has a long history of knee problems. Doctor S.H. Lovold testified during his deposition that he treated appellant for bilateral knee complaints on several occasions between throughout the 1980s and 1990s, beginning in 1982. Based in part on appellant's statements to Lovold that appellant suspected his knee troubles were work related, Lovold formed the opinion that appellant's knee problems were indeed caused by his job .
Lovold's records are not complete and contain only two entries, both in July 1988, pertaining to treatment of appellant's left knee. Appellant argues that the 1988 left-knee treatment was a result of a specific injury appellant suffered when his left knee was struck by machinery. Further, appellant notes that Lovold's records contain only sparse mention of appellant's right knee. Although these records are incomplete, they do indicate that in 1995 appellant had received treatment for "knee problem for years." During his deposition, Lovold testified that he treated both appellant's knees on several occasions
Doctor Jonathan Bieble's records and affidavit present a different picture of appellant's medical history. Appellant first saw Bieble after an on-the-job injury in 1986. At that time Bieble felt that appellant "really had a stable [left] knee." Bieble next saw appellant on May 5, 1997. Appellant came to Bieble about constant pain in his knees that was so severe that it prevented him from sleeping. In his notes, Bieble wrote:
This is a 57 year old male I saw ten years ago for his left knee. Now he is here for his right knee. He has severe pain in the medial side. He can't sleep at night. He is getting 4 hours of sleep.
Bieble diagnosed appellant with degenerative arthritis of the right knee. In August 1998, Bieble began treating appellant's left knee. Both knees were eventually replaced. In his affidavit, Bieble stated that he had reviewed Lovold's deposition testimony and records and it was Bieble's opinion that he and Lovold were treating different knee problems.
In 2000 appellant brought a claim under the Federal Employer
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