                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS


 BNSF RAILWAY COMPANY,                         §
                                                              No. 08-13-00268-CV
                            Appellant,         §
                                                                 Appeal from the
 v.                                            §
                                                                34th District Court
 SALVADOR L. ACOSTA,                           §
                                                            of El Paso County, Texas
                            Appellee.          §
                                                             (TC# 2012-DCV01607)
                                               §


                                         OPINION

       In this permissive interlocutory appeal, BNSF Railway Company challenges the trial

court’s denial of its motion for summary judgment. We reverse the trial court’s order, render

summary judgment in favor of BNSF, and dismiss the case.

                                  FACTUAL SUMMARY

       On May 22, 1978, Salvador Acosta began working for BNSF, where he served as a

flagman, a machine operator, and a trackman laborer over a 31-year period. Acosta’s last

physical day on the job was March 21, 2010.

       In two to-whom-it-may-concern letters dated April 23, 2010, Acosta described the pain

and injuries he suffered in 1993 or 1994 and in 2005. In one letter, Acosta described that while
working on a “regional gang on the Colorado division” in “1993-1994,” he was replacing plates

with a hook for a new rail to be laid and suffered pain from his lower back to his calf. Acosta was

already in pain that day from “doing the same [j]ob” for the previous two to three months. Upon

reporting his condition to his road master and advising that he was not resting at night due to pain,

Acosta was permitted to have the day off to see a doctor. A doctor prescribed pain medication for

Acosta but after the pain continued, Acosta was sent for medical imaging “throughout the years

until now” and was also sent to physical therapy. Acosta described that “[a]s the years went by,”

doctors referred him to an orthopedic specialist who informed him that he was suffering from

arthritis in his lower back but was fine and able to return to his job and to continue his medication.

In his conclusion, Acosta claimed that “[a]fter all these years of working with the same pain[,] it

has gotten worse to the extreme,” “from all the pain in my back[,] I can’t bend down to do my job,”

and “the pain keeps me from doing my job.”

       In his second letter, Acosta explained that he was assigned to work on the back of a train

loaded with concrete ties in Fort Sumner, New Mexico, in 2005. Acosta’s left foot fell through a

hole as he walked on the deck. Using a radio, Acosta called for help without response and tried to

get out of the hole and return to work. A few minutes later, a mechanic who had observed Acosta

from a distance came to his aid and also called by radio for help with no response. Acosta and the

mechanic thereafter continued working. Acosta did not have any immediate pain but awakened

the next day with severe pain from his lower back and left hip to the bottom of his calf. Noting

that he had been seen by doctors on many occasions and had obtained medical imaging, Acosta

reported that his results were always the same and that he was diagnosed with arthritis and

prescribed pain medication. By March 2010, his pain had worsened and an MRI was performed.


                                                  2
A doctor informed Acosta that he had two dislocated discs on his lower back with hernias, and

prescribed spinal injections and physical therapy to assist with pain management.

           The record contains portions of Acosta’s medical reports. In notes dated April 6, 2010,

physical therapist Todd Marcee reported that Acosta was diagnosed with lumbar radiculopathy.

Acosta described intermittent low back pain over the preceding fifteen years and frequent

exacerbation, with current symptoms including pain through the buttocks and into the left calf.1

Acosta said that the initial onset of his low back pain occurred “in 1993-94” with constant pain in

his back registering “8 to 9/10,” and intermittent pain in the thigh and leg.

           In his notes of May 12, 2010, Dr. Brett Henderson reported an “MRI of [Acosta’s] left

spine shows very mild degeneration of the L4-L5 and L5-S1 segments” but there was “no

significant disc bulging or nerve compression.”2 Dr. Henderson determined that “[t]his probably

represents a recurrent lumbar strain,” and indicated that Acosta “would likely need axial and core

muscle strengthening to have any hopes of getting better and [returning] to work, however given

his age and his nature of his work, this is probably not likely.” His final recommendation was that

Acosta “does not need any type of surgical intervention.”

           Dr. Scott Protzman assessed Acosta on June 1, 2010, and observed that Acosta is not likely

to be able to return to his line of work “at all” as a trackman for BNSF due to some of the

degenerative changes in his back.3 Dr. Protzman opined that it was appropriate for Acosta to

perform work at a medium duty level “in a lighter duty position,” but he could not return to his

previous position.

1
    Only one of four pages comprising the report is present in the record.
2
    The first page of this two-page report is not present in the record.
3
    The first and third pages of this three-page report are not present in the record.
                                                              3
         On January 17, 2012, Acosta filed a negligence suit against BNSF under the Federal

Employer’s Liability Act (FELA) seeking damages of $5,000,000. See 45 U.S.C.A. § 51. He

alleged that due to the nature of his job, he had sustained injuries and wear and tear on his body

over the course of his employment which had a cumulative effect such that he was no longer able

to perform his duties as of April 25, 2010. In response to discovery requests, Acosta specified

that he had suffered hearing loss, back and hip injuries and severe pain in those areas, herniated

discs, and sciatic pain in his left leg and calf. During his deposition, Acosta acknowledged that he

did not suffer any injury between 2005 and when he was last “on the job” in 2010.

         BNSF moved for summary judgment contending Acosta’s suit is barred by the three-year

statute of limitations applicable to FELA actions. 45 U.S.C.A. § 56. The trial court ordered that

the motion be granted in part and denied in part. The trial court determined Acosta’s claim for

hearing loss was barred “by the applicable statute of limitations” and dismissed that claim with

prejudice. The trial court left pending Acosta’s other claims relating to his back and hip injuries,

herniated discs, severe back and hip pain, and sciatic pain in the left leg and calf.

         Stating that an immediate appeal may materially advance the ultimate termination of the

litigation, the trial court granted BNSF permission to pursue this interlocutory appeal pursuant to

Section 51.014(d) of the Texas Civil Practice and Remedies Code and Texas Rule of Civil

Procedure 168 for the purpose of resolving two controlling questions of law on which the trial

court believed there is substantial ground for difference of opinion. 4                            TEX.R.CIV.P. 168;


4
  Rule 168 provides that on a party’s motion or on its own initiative, a trial court may permit an appeal from an
interlocutory order that is not otherwise appealable, as provided by statute. Permission must be stated in the order to
be appealed. An order previously issued may be amended to include such permission. The permission must identify
the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why
an immediate appeal may materially advance the ultimate termination of the litigation. TEX.R.CIV.P. 168. Section
51.014(d) provides that on a party’s motion or on its own initiative, a trial court in a civil action may, by written order,
permit an appeal from an order that is not otherwise appealable if: (1) the order to be appealed involves a controlling
                                                             4
TEX.CIV.PRAC. & REM. CODE ANN. § 51.014(d)(West Supp. 2014). The questions posed ask:

(1) whether the continuing tort theory applies to toll the statute of limitations; and (2) whether the

aggravation rule applies “to allow for recovery for aggravation of an injury that occurred prior to

the limitations period.” The trial court’s order directs that if we answer either question in the

negative, Acosta’s claim for cumulative orthopedic injuries is time-barred and should be

dismissed.

                                                  THE FELA

        FELA provides that every railroad engaging in interstate commerce is liable in damages to

any employee injured during his employment when such injury results in whole or in part from the

railroad’s negligence or by reason of any defect or insufficiency due to its negligence. See 45

U.S.C.A. § 51. In its sole issue, BNSF complains Acosta’s FELA suit is barred by the statute of

limitations set forth in 45 U.S.C.A. § 56, which provides that no action shall be maintained unless

it is commenced within three years from the day the cause of action accrued. 45 U.S.C.A. § 56.

BNSF urges us to answer the specified controlling questions of law in the negative and hold that

the continuing tort theory and the aggravation rule are inapplicable.

                                             Limitation of Actions

        Compliance with the three-year statute of limitations of Section 56 is a condition precedent

to recovery in a FELA action. See Emmons v. So. Pac. Transp. Co., 701 F.2d 1112, 1117 (5th Cir.

1983). FELA does not define when an action accrues for purposes of recovery under the Act.

See 45 U.S.C.A. §§ 51-60. We begin our analysis with a survey of opinions which address or



question of law as to which there is a substantial ground for difference of opinion; and (2) an immediate appeal from
the order may materially advance the ultimate termination of the litigation. TEX.CIV.PRAC. & REM.CODE ANN. §
51.014(d)(West Supp. 2014).

                                                         5
reference the accrual of actions under FELA and other federal statutes in relation to limitation of

actions. 45 U.S.C.A. § 56.

                     Federal Court Opinions Where Suits Were Time Barred

                                        U.S. v. Kubrick
              444 U.S. 111, 123-25, 100 S.Ct. 352, 360-61, 62 L.Ed.2d 259 (1979)

       In this non-FELA medical malpractice case brought under the Federal Tort Claims Act, the

Supreme Court determined that Kubrick’s claim accrued under that Act when Kubrick, armed with

knowledge of the facts about the harm done to him, could have protected himself by seeking

advice in the medical and legal communities, but it did not appear that he had done so. Id.

Observing that a putative medical malpractice plaintiff must determine within the applicable

two-year limitations period whether to file suit, the court also noted that where such plaintiff “fails

to bring suit because he is incompetently or mistakenly told that he does not have a case, [there is]

no sound reason for visiting the consequences of such error on the defendant by delaying the

accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit,

even though more than two years have passed from the plaintiff’s discovery of the relevant facts

about injury.” Id. at 123-24, 100 S.Ct. at 360. The court explained that if it had misconceived

congressional intent, Congress may exercise its prerogative to achieve its intended result through

amendment of the statute at issue. Id. at 125, 100 S.Ct. at 361.

                                        Crisman v. Odeco
                                 932 F.2d 413, 414 (5th Cir. 1991)

       William Crisman brought suit under the Jones Act alleging he suffered hearing loss,

chemical toxicity disorder, and respiratory injuries. See 46 U.S.C.A. § 30104. Crisman, who

had been hired by the defendant in 1970, admitted in his deposition that he knew at the time of his


                                                  6
exposure that paint and solvent fumes had caused his problems and he complained to supervisors

and co-workers by 1978 or 1979. His symptoms only occurred at work and disappeared when he

was away from work for extended periods, but by the early 1980’s, he was experiencing problems

almost every time he went to work. Crisman, 932 F.2d at 414, 416. His physician informed him

in 1979 that workplace toxins might be the cause of his problems. Id.

        The Fifth Circuit Court of Appeals observed that the occurrence of an event that should put

a plaintiff on notice to check for injury is sufficient to commence the running of the prescriptive

period, even if the event results in only minor physical effects. Id. The court affirmed the

dismissal of Crisman’s suit as time-barred upon determining that Crisman had actual knowledge of

all his injuries more than three years before he brought his case and knew or should have known

that those symptoms were caused by his work. Id. at 414-16. Quoting its prior opinion in

Dubose v. Kansas City S. Ry., 729 F.2d 1026, 1029, 1030 (5th Cir. 1984), the court noted, “Once a

plaintiff possesses critical facts, . . . legal and medical professionals are available to give advice to

an injured person concerning whether he has been legally wronged[,]” and “[once] a plaintiff

should reasonably have been aware of the critical facts of injury and causation,” suit must be

brought. Crisman, 932 F.2d at 417.

        The court also considered Crisman’s alternative theory that the continuing nature of his

employer’s acts required application of the continuing tort theory to permit the period of

limitations to run from the time he last worked with the toxic chemicals. Id. The court recalled

its opinion in Emmons in which it rejected the continuing tort theory where the employer had no

knowledge of the employee’s condition. Id.; Emmons v. So. Pac. Transp. Co., 701 F.2d 1112,

1117 (5th Cir. 1983). As Emmons had never applied for a transfer to a different job and had failed


                                                   7
to inform any Southern Pacific official that his ankle problem was caused by his work until just

before he was fired, the Fifth Circuit Court of Appeals held that there could be no continuing tort

without such knowledge on the part of Southern Pacific. Crisman, 932 F.2d at 417; Emmons, 701

F.2d at 1121. Because Crisman never alleged that he had requested to be transferred to another

job and never suggested that his employer knew of his purported physical problems, which are the

important factors necessary for the invocation of the continuing tort theory, the court concluded

Crisman was precluded from utilizing that theory. Crisman, 932 F.2d at 417; Emmons, 701 F.2d

at 1121. In footnote 5 of its opinion, the Crisman court rejected Crisman’s claim for aggravation

of time-barred injuries because the employer did not commit a new separate tort but merely

continued Crisman’s job assignment. Crisman, 932 F.2d at 417.

                                     Albertson v. T. J. Stevenson & Co.
                                    749 F.2d 223, 227-28 (5th Cir. 1984)

           Albertson had suffered from headaches, sought medical treatment over the course of ten

years as his symptoms worsened, and eventually filed suit under the Jones Act twelve years after

his exposure to the toxic chemicals with which he worked.5 See 46 U.S.C.A. § 30104 (previously

46 U.S.C.A. app. § 688). The Fifth Circuit held Albertson was duty-bound to evaluate his

symptoms to determine whether they had become more serious. Id. at 232. The court observed

that, “[i]f the plaintiff later discovers that his injuries are more serious than originally thought, his

cause of action nevertheless accrues on the earlier date, the date he realized that he had sustained

harm from the tortious act[,]” and:

           Application of the time of event rule, rather than the discovery rule, reflects the
           collective legislative and judicial judgment that a plaintiff possessing knowledge of
           the critical facts of his injury and its cause has the duty to comply with the
           applicable statute of limitations and make the defendant aware that he will pursue a
5
    The Jones Act adopts the same three-year statute of limitations applicable to FELA suits. 46 U.S.C.A. § 30104.
                                                          8
       claim against it. A plaintiff armed with these facts cannot argue persuasively that
       the time of event rule offends notions of fair play and substantial justice, even
       though he is unaware of all of the facts related to his inquiry or its cause.

Albertson, 749 F.2d at 228-29, 232.

                 Federal Court Opinions Where Suits Were Not Time Barred

                                      Urie v. Thompson
              337 U.S. 163, 168-71, 69 S.Ct. 1018, 1024-25, 93 L.Ed. 1282 (1949)

       The United States Supreme Court determined that Urie’s FELA action was not time-barred

where the record showed that Urie had been exposed to silica dust since 1910, became too ill to

work in May 1940, was diagnosed with silicosis in the following weeks, and filed suit in

November 1941. Assuming that Congress intended to include occupational diseases within the

scope of FELA actions, the court determined that “mechanical analysis of the ‘accrual’ of

petitioner’s injury – whether breath by breath, or at one unrecorded moment in the progress of the

disease – can only serve to thwart the congressional purpose.” Urie, 337 U.S. at 169, 69 S.Ct. at

1024. Observing that “the humane legislative plan” did not intend the FELA statute of limitations

to attach to “blameless ignorance,” the court applied to its construction of the FELA limitations

provision language adopted from a California worker’s compensation case:

       It follows that no specific date of contact with the substance can be charged with
       being the date of injury, inasmuch as the injurious consequences of the exposure
       are the product of a period of time rather than a point of time; consequently the
       afflicted employee can be held to be “injured” only when the accumulated effects
       of the deleterious substance manifest themselves[.]

45 U.S.C.A. § 56; Urie, 337 U.S. at 170, 69 S.Ct. at 1025. The court concluded Urie’s action was

not barred by the FELA statute of limitations. Id.

                           Pretus v. Diamond Offshore Drilling, Inc.
                               571 F.3d 478, 482 (5th Cir. 2009)


                                                9
          Pretus commenced his employment in 1978, and in 2000 began suffering cold-like

symptoms which tended to improve when he left his workplace on submersible drilling rigs. Id.

at 479.     His employer directed that any employee with respiratory problems was to take

antibiotics and antihistamines, and offered flu and pneumonia injections to employees upon

request. Id. Pretus took the medications which typically alleviated his symptoms. Id. Pretus

was diagnosed and treated for bronchitis on one occasion, but when his symptoms continued to

worsen, he took a leave of absence from work in July 2004, and was treated by a pulmonologist.

Id. at 479-80. In January 2005, another physician informed Pretus that he may be suffering from

a fungal infection in his lungs, and in March 2005, his employer’s insurance company referred

Pretus for an independent medical examination. Id. at 480. Pretus was thereafter diagnosed with

hypersensitivity pneumonia and, when the condition is treated in the early stage of the disease, a

complete cure may be had but, as in Pretus’ case, when the condition is not recognized, it worsens

and progresses to fibrosis of the lungs rendering the condition fixed with irreversible loss of lung

function. Id. at 480. The condition is often not diagnosed, and the independent physician noted

that the employer’s “standing orders” to dispense medication for respiratory infections likely

prevented diagnosis, delayed recognition of the condition, and contributed to Pretus’ illness. Id.

Pretus sued his employer on September 6, 2006, under the Jones Act. Id. The district court

granted partial summary judgment on the basis that Pretus’ suit was time-barred. Id.

          The Fifth Circuit observed that cases continue to distinguish between pure latent injury

cases and the traumatic event/latent manifestation cases which are dependent on the facts of the

particular case. 6 Pretus, 571 F.3d at 483. The cases on which it relied focused on three


6
 The Fifth Circuit recounted the time-of-event rule for non-latent injuries in which a plaintiff’s cause of action is
deemed to accrue if some injury is discernable when the tortious act occurs, and contrasted the use of the discovery
                                                         10
considerations: (1) the severity of the traumatic event and initial symptoms; (2) the plaintiff’s

correlation of his ultimate injury with the traumatic event; and (3) the plaintiff’s reasonable

reliance on the opinions of medical experts. Id. at 484.

         The court determined that a genuine issue of material fact existed regarding the existence

of a traumatic event and the severity of Pretus’ symptoms prior to 2004 because a fact finder could

classify Pretus’ initial symptoms as routine physical annoyances under the first consideration, and

could also conclude that it did not matter that Pretus could correlate those initial symptoms to his

workplace because they were short-term afflictions that disappear with treatment, and behaved in

that way until 2004. Id. at 485. As to the third consideration, the court observed that Pretus

diligently sought care “both while he was suffering from minor symptoms in 1999 and 2000, and a

few years later when he developed a more serious pulmonary disability.” Id. at 485. Pretus’

initial diagnosis did not indicate to his physicians that he had a serious disease until 2004 when the

treatments for his cold, sinus infection, and bronchitis failed to improve his symptoms as they

became more severe and debilitating. Id. at 485-86. Thereafter, Pretus’ physicians determined

that he was afflicted with chronic interstitial lung inflammation, permanent fibrosis of his lung

tissue, and hypersensitivity pneumonia, which are entirely different from bronchitis and often

misdiagnosed during early stages. Id. at 486. Those diagnoses were obtained less than three

years before Pretus filed suit. Id. The Fifth Circuit concluded that a reasonable person could

conclude that Pretus’ cause of action did not accrue until after September 6, 2003. Id.




rule for pure latent injuries in which the cause of action does not accrue on the date the tortious act occurs but on the
date the plaintiff discovers or reasonably should have discovered both the injury and its cause as opposed to “the
traumatic event/latent manifestation case” in which a plaintiff realizes at the time of the traumatic event that he is
injured and the responsible cause but the full extent of his harm has not become manifest. See Pretus, 571 F.3d at
482, quoting and citing Albertson, 749 F.2d at 228-29.
                                                          11
                               Taurel v. Central Gulf Lines, Inc.
                              947 F.2d 769, 770-72 (5th Cir. 1991)

       Taurel had worked as a merchant seaman since 1958. He had complained of pulmonary

and respiratory difficulties throughout his career, had visited hospitals in 1963 and 1965 regarding

his symptoms, underwent routine chest x-rays from 1975 to 1981 which were declared normal,

was treated for bronchitis in 1984 without any other diagnosis, but was diagnosed with asbestosis

in 1987 after a routine screening test. The district court granted summary judgment in favor of

Central Gulf after determining that Taurel’s 1988 suit was untimely. Taurel, 947 F.2d at 771.

The Fifth Circuit disagreed, holding that Taurel’s action under the Jones Act did not accrue until a

physician actually diagnosed him with asbestosis. Id. at 771. The court concluded that a

genuine issue of material fact existed regarding when Taurel discovered or should have discovered

that he had asbestosis.   Id. at 771.

                                        State Court Opinions

                                 Billman v. Mo. Pac. R. Co.
              825 S.W.2d 525, 527-28 (Tex.App. –Fort Worth 1992, writ denied)

       In Billman, a case which the Texas Supreme Court declined to review, the Fort Worth

Court of Appeals determined that the limitations period for Billman’s job-related hearing loss

barred his action because Billman knew of the injury more than three years before he filed suit.

However, the court determined that summary judgment was not proper in part because a genuine

issue of material fact remained regarding whether Billman, who had filed suit on March 26, 1990,

had an actionable claim for aggravation of his original hearing loss accruing after March 26, 1987,

as asserted in his affidavit. Billman, 825 S.W.2d at 526. To recover for aggravation of the

time-barred hearing loss, Billman was required to plead and prove that he suffered additional


                                                12
injury to his hearing, that his employer’s negligence had caused the additional injury, and that both

his additional injury and its cause occurred within the three-year period before suit was filed. Id.

at 528-29. The employer had not challenged Billman’s claim that it had continued to negligently

subject Billman to noise which injured his hearing, but instead had only argued that a claim for

aggravation is not cognizable under FELA. Id. at 529. Because the court recognized that the

Texas standard for review of summary judgment proof is more stringent than the federal standard,

and because the record did not contain conclusive proof that there was no new tort within three

years of filing suit as in Crisman, the court followed Kichline v. Consolidated Rail Corp., 800 F.2d

356, 361 (3rd Cir. 1986). Kichline held the statute of limitations did not bar Kichline’s claim for

aggravation of his pulmonary disease which had occurred during the three-year period before he

filed suit and ending with his retirement.       Kichline, 800 F.2d at 361.       Recognizing that

apportionment of the injuries would be difficult, the court determined that Kichline’s awareness of

the effects of his work-related exposure to diesel fumes would go to the issue of his contributory

negligence. Kichline, 800 F.2d at 361. In a footnote, the Billman court observed that if Billman

had by deposition or affidavit denied that he associated his hearing loss with loud noises at work,

that testimony would constitute evidence raising a fact issue precluding summary judgment.

Billman, 825 S.W.2d at 528 n. 3.

                                  BNSF R. Co. v. Phillips,
                 434 S.W.3d 675, 681 (Tex.App. –Fort Worth 2014, pet. filed)

       Here, the appellate court considered whether the evidence was legally sufficient to

establish that Phillips’ claims accrued no earlier than April 13, 2004.          Phillips began his

employment with BNSF’s predecessor in 1974. Id. at 682-84. In April 1998, Phillips informed

his chiropractor that he was experiencing spinal soreness and tenderness, he had seen other doctors

                                                 13
regarding his symptoms, and the condition had not progressively worsened. Id. at 684. Phillips

attributed aggravation of his condition to rough-riding railroads but did not attribute his condition

to his employment, and he had not missed work because of his condition. Id. at 684. Phillips

acknowledged suffering from past low back pain, and other symptoms in his neck, hands, legs, and

feet, including cramps or backache. His chiropractor noted that Phillips had been suffering from

chronic back pain for years and was in constant pain when awake. Id. at 684. Medical imaging

in 2003 indicated that Phillips suffered from spondylolysis, minor bulging, and intravertebral

hemangiomas. Id. at 684. In June 2004, Phillips complained of additional symptoms including

chronic back spasms, tingling in his fingertips, and sensation of cold in his left foot. This was not

attributed to his working conditions but was attributed instead to diabetes. Id. at 684. In 2005,

Phillips resigned after he was referred to a neurologist who informed him that he could no longer

work due to the deterioration of his spinal health. Id. at 682, 684.

       In his suit filed April 13, 2007, Phillips brought claims under FELA in which he

complained of injuries to his back, neck, legs, shoulders, arms, and other body parts caused by

jolts, shocks, vibrations, and cumulative trauma arising from his exposure to defective equipment,

including   long-term    exposure    to   vibratory    forces,   rough-riding    locomotives,    and

poorly-maintained equipment. Id. at 682.         Stating that he first understood that his spinal

condition was related to his work prior to 2005, Phillips testified that he did not know about

“whole-body vibration” in 1998 or 1999 or in the early 2000s and his employer had not informed

him about any literature on the subject. He and his family had always gone to a chiropractor on an

as-needed basis, and the chiropractic treatments helped his symptoms. Id. at 684-85. Relying on

its footnote in Billman, the court found there was some evidence that Phillips reasonably did not


                                                 14
realize that his job had caused his debilitating injuries until on or after April 13, 2004, which

supported the jury’s finding that Phillips’ FELA action was timely filed within three years from the

day his cause of action accrued and was not time-barred. Id. at 682.

                                     Comparison of the Facts

       In his deposition, Acosta acknowledged that his 2005 platform fall caused the injuries to

his low back, left hip, and left calf, and are the same injuries that form the basis of his FELA suit.

He admittedly injured his low back while working in 1993 or 1994.                Because he should

reasonably have been aware of the critical facts of his work-related injury and causation, and

because the record shows that he was aware that he had suffered work-related injuries more than

three years before he filed his FELA suit, Acosta failed to meet his burden of establishing that his

suit is timely. 45 U.S.C.A. § 56; see Urie, 337 U.S. at 170, 69 S.Ct. at 1025; Phillips, 434 S.W.3d

at 682. Absent applicability of the continuing tort doctrine or the aggravation rule, the trial

court’s denial of BNSF’s motion for summary judgment was erroneous.

                                  The Continuing Tort Doctrine

       Under the continuing tort doctrine, “‘the cause of action is not complete and does not

accrue until the tortious acts have ceased.’” See In re FEMA Trailer Formaldehyde Products

Liab. Litig., 646 F.3d 185, 191 (5th Cir. 2011)(rejecting application of continuing tort doctrine to

claims asserted under the Federal Tort Claims Act, which bases accrual of action on awareness of

injury), quoting Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 451 (5th Cir. 2007); see also

Lavellee v. Listi, 611 F.2d 1129, 1132 (5th Cir. 1980)(claim for a “continuing tort” does not accrue

until the tort has ceased). In resolving the first controlling question regarding the applicability of

the continuous tort doctrine, we consider whether BNSF knew of Acosta’s physical problems and


                                                 15
whether Acosta requested to be transferred to another job. See Crisman, 932 F.2d at 417;

Emmons, 701 F.2d at 1121.

       During his deposition, Acosta testified that he had made injury incident reports after he was

hit by a chip from an angle bar that struck his face, again after another employee struck him in the

nose with a hook, and 15 or 20 years earlier after he tripped over a rail and hit his left leg. At an

unspecified time, he informed his foreman that he had injured his elbow when working in Clovis,

New Mexico. He had also informed his roadmaster, Melvin Thomas, that he had injured his back

while using a hook to move metal plates in 1993 or 1994 in “the Colorado Division,” and notified

Thomas that he was going to see a doctor. Acosta did not make injury incident reports to BNSF

regarding his 1993 or 1994 and 2005 injuries.

       There is no evidence that Acosta’s 2005 injury was known to anyone other than Acosta and

the mechanic who assisted him, and Acosta admitted that he did not know whether any supervisor

ever learned of his fall. After he fell through the car platform in 2005, Acosta never suffered

another incident of injury while working at BNSF. Although there is some evidence that he had

notified BNSF regarding some of his injuries, neither party directs us to any evidence showing that

Acosta ever requested to be transferred to another job, and we have found none in the record. We

conclude the continuing tort theory is not applicable to these facts and does not toll the three-year

FELA statute of limitations. See Crisman, 932 F.2d at 417; Emmons, 701 F.2d at 1121.

                                      The Aggravation Rule

       We similarly resolve the second controlling question in the negative and conclude the

aggravation rule does not apply to these facts.        First, Acosta did not plead or prove the

aggravation rule applies, as he did not plead that he suffered additional injury and that BNSF’s


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negligence caused the additional injury. Billman, 825 S.W.2d at 528-29. Had this sub-issue not

been identified by the trial court as a controlling issue, it would not have been preserved for our

consideration. Because it is presented as a controlling question, we determine that Acosta has not

shown the aggravation rule to be applicable. During his deposition, Acosta testified to his belief

that BNSF was responsible for his injuries but expressly admitted that he did not experience any

new injuries while working for BNSF after his 2005 hole-in-the-platform fall or before March 21,

2010, when he was last “on the job” at BNSF. He also testified he had not been injured outside of

his employment, except when he was struck in the head with a crowbar in 1969, an event which

fractured Acosta’s skull. The record allows us to assert with confidence that BNSF did not

commit a new separate tort within three years of Acosta filing suit but merely continued Acosta’s

job assignment. See Crisman, 932 F.2d at 417; compare Billman, 825 S.W.2d at 528.

       We sustain Issue One. We reverse the trial court’s order denying summary judgment,

render judgment granting summary judgment in favor of BNSF, and dismiss the case.



                                             ANN CRAWFORD McCLURE, Chief Justice
November 7, 2014

Before McClure, C.J., Rodriguez, J., and Parks, Judge
Parks, Judge, sitting by assignment




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