          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                September 2013 Term
                                                                   FILED

                                                             September 27, 2013

                                                                 released at 3:00 p.m.
                                     No. 12-0420                 RORY L. PERRY II, CLERK
                                                               SUPREME COURT OF APPEALS
                                                                   OF WEST VIRGINIA



                                GARY L. CAUDILL,

                              Plaintiff Below, Petitioner


                                          v.


                           CSX TRANSPORTATION, INC.,

                            Defendant Below, Respondent




                    Appeal from the Circuit Court of Mingo County

                       Honorable Michael Thornsbury, Judge

                              Civil Action No. 10-C-304


                                     AFFIRMED



                            Submitted: September 4, 2013
                             Filed: September 27, 2013


Richard N. Shapiro, Esq.                                     J. David Bolen, Esq.
Virginia Beach, Virginia                                     Todd R. Meadows, Esq.
Attorney for Petitioner                                      Huntington, West Virginia
                                                             Attorneys for Respondent



JUSTICE LOUGHRY delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT


              1. “‘The standard of review applicable to an appeal from a motion to alter or

amend a judgment, made pursuant to W.Va. R.Civ.P. 59(e), is the same standard that would

apply to the underlying judgment upon which the motion is based and from which the appeal

to this Court is filed.’ Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va.

430, 513 S.E.2d 657 (1998).” Syl. Pt. 1, Graham v. Beverage, 211 W.Va. 466, 566 S.E.2d

603 (2002).



              2. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl.

Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).



              3. “Summary judgment is appropriate where the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving

party has failed to make a sufficient showing on an essential element of the case that it has

the burden to prove.” Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).



              4. “Pursuant to 45 U.S.C. § 56 (1948), federal and state courts have concurrent

jurisdiction of claims brought under the Federal Employers’ Liability Act, 45 U.S.C. § 51

(1939). Although a state court may use procedural rules applicable to civil actions in the

state court unless otherwise directed by the Federal Employers’ Liability Act, substantive


                                              i
issues under the Federal Employers’ Liability Act are determined by the provisions of the

statute and interpretative decisions of the Federal Employers’ Liability Act given by the

federal courts.” Syl. Pt. 4, McGraw v. Norfolk & Western Ry. Co., 201 W.Va. 675, 500

S.E.2d 300 (1997).



              5. “The provision of the Federal Employers’ Liability Act, as amended,

prescribing a period of three years after a cause of action accrues within which to commence

an action covered by that statute relates to the right which it creates and the remedy which

it provides; and an action based upon or within the scope of the statute, which is not

commenced within the three year period of limitation, can not be maintained.” Syl. Pt. 3,

Jordan v. Baltimore & O. R. Co., 135 W.Va. 183, 62 S.E.2d 806 (1950).



              6. The statute of limitations under the Federal Employers’ Liability Act, 45

U.S.C. § 56 (2006), requires an objective inquiry as to when a plaintiff knew or should have

known, in the exercise of reasonable diligence, the facts of his or her injury and its cause.




                                              ii
LOUGHRY, Justice:

                 The petitioner, Gary L. Caudill (“Mr. Caudill”), appeals from the circuit court’s

March 12, 2012, order denying his motion to alter or amend the circuit court’s previous order

entered February 27, 2012, granting summary judgment in favor of the respondent, CSX

Transportation, Inc. (“CSXT”).         Mr. Caudill instituted this action under the Federal

Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq.,1 alleging that he sustained

injuries arising out of his employment with CSXT.2 The circuit court entered summary

judgment in favor of CSXT on the basis that Mr. Caudill’s action was untimely filed. In this

appeal, Mr. Caudill asserts that the circuit court erred because there are disputed material

facts concerning the applicable statute of limitations and whether he knew or should have

known of his injury and its cause more than three years prior to filing his complaint.




        1
        “Pursuant to 45 U.S.C. § 56 (1948), federal and state courts have concurrent
jurisdiction of claims brought under the Federal Employers’ Liability Act, 45 U.S.C. § 51
(1939).” Syl. Pt. 4, in part, McGraw v. Norfolk & Western Ry. Co., 201 W.Va. 675, 500
S.E.2d 300 (1997).
        2
            In McGraw, we also explained the purpose of FELA actions:

                Under the Federal Employers’ Liability Act, 45 U.S.C. § 51 (1939),
        inter alia, “[e]very common carrier by railroad while engaging in commerce
        . . . shall be liable in damages to any person suffering injury while he is
        employed by such carrier in such commerce, or, in case of the death of such
        employee, to his or her personal representative . . . for such injury or death
        resulting in whole or in part from the negligence of any of the officers, agents,
        or employees of such carrier [.]”

Id. at Syl. Pt. 3.

                                                 1

              Upon our consideration of the record in this matter, the briefs and arguments

of the parties, the applicable legal authority, and for the reasons discussed below, we affirm

the orders of the circuit court.



                              I. Facts and Procedural History

              Mr. Caudill was employed by CSXT from 1977 until 2008. During this period,

Mr. Caudill’s job as a conductor required him to ride for several hours at a time in either the

caboose or the locomotive of trains. Mr. Caudill maintains that he sustained injuries to his

back due to unsupportive seats on the cabooses and locomotives. When asked to explain

what he meant by “not supportive,” Mr. Caudill testified during his deposition, as follows:

              Q. If you were to tell me, you know, this one problem with
              these seats was the thing that bothered you the most, what would
              that be?
              A. You didn’t have anything here to support you.

              Q. And you’re talking about the back then?
              A. The back and the bottom.

              Q. Okay.
              A. Because between the excess lateral movement, the
              locomotive gave, then the suspension-wise such as shocks and
              so on and so forth, you had nothing to take the impact when you
              hit a low spot or the pan-out or circumstances, it would only end
              up right in your back.

              Q. Did the seats have armrests on them or no?
              A. No, sir.

              ••••
              Q. Was there any vibration? Could you feel vibration?

                                              2

              A. Yes, sir.

              Q. Okay. What did it feel like? Tell me what it felt like.
              A. It was up and down, continuously up and down motion.

              Q. Like were moving up and down, the seat moving up and
              down?
              A. Uh-huh.

              Q. Is that “yes”?
              A. Yes.

              Q. Okay.
              A. Yes, the motion up and down, at the same time you went
              from side to side[,] as well[] as up and down[,] you went side to
              side continuously.

Mr. Caudill testified that he complained several times over the years to railroad officers and

trainmasters about the seats, including that they “were uncomfortable to ride in and they

weren’t supportive to your back[,]” and that he made similar complaints to his union officers

and at union safety meetings.



              During the same time Mr. Caudill was complaining about the seats on the

locomotives, he had recurrent back pain, which he described as “on and off for a long time.”

Mr. Caudill’s medical records, as well as the deposition testimony of Dr. John Darnell, his

family physician, reflect that he saw Dr. Darnell in 1985 for “low back pain[,]” which he

reported had been ongoing for approximately one year. The appendix record also contains




                                              3

the records of chiropractors3 showing that Mr. Caudill received treatment for back pain

between 2001 and 2007.4 A chiropractic record dated September 25, 2001, demonstrates that

Mr. Caudill reported that he had been experiencing low back pain for some time; that it was

painful for him to sit, walk, and bend; and that his work involved sitting and standing. Mr.

Caudill also testified that his back “went out” while he was at work approximately eight

years earlier and that he was taken to a hospital for treatment.5



              In November 2005, Mr. Caudill saw Dr. Darnell for several complaints,

including hip and back pain. A medical record dated November 11, 2005, reflects that Mr.

Caudill complained to Dr. Darnell of, among other things, pain in the “S1area,” and that Dr.

Darnell ordered an x-ray of Mr. Caudill’s hip and back at that time. In the radiological report



       3
        Although Mr. Caudill claims that it is significant that he did not check a box on the
chiropractic forms to indicate that his back pain was work-related, a close review of these
forms shows that patients are asked whether their condition is due to an “accident” and, if
so, whether the accident was “auto,” “work,” “home,” or “other.” Mr. Caudill does not
attribute his condition to an “accident,” therefore, there was no basis for him to check any
of the boxes in this portion of the form. We do not see any other area on these forms where
“work” is a box that can be checked by the patient as a reason for his/her “condition.”
       4
        Although Mr. Caudill testified during his deposition that he first saw Dr. Johnson,
a chiropractor, in 2007, the appendix record reflects that he saw Dr. Johnson for back pain
in 2001.
       5
        Mr. Caudill was deposed in 2011, thus, eight years earlier would mean that this
hospital visit occurred in 2003. We also note that Dr. Darnell testified that his medical
records showed that Mr. Caudill suffered “acute back pain” while at work in 1993, and was
taken to the emergency room by paramedics. Accordingly, it appears that Mr. Caudill may
have been taken from work to a hospital due to back pain on two separate occasions.

                                              4

of this x-ray dated November 11, 2005, it states that Mr. Caudill had “grade-1 anterolisthesis

of L5 on S1 secondary to L5 bilateral spondylolysis. Marked degenerative changes at this

level identified.” Mr. Caudill saw Dr. Darnell two more times in November and the medical

record for one of those visits shows a notation that “pain better [with] Aleve per pt re back.”

Notwithstanding these post-x-ray visits, Mr. Caudill contends that he never asked Dr. Darnell

about the results of his x-ray, nor did he further investigate the cause of his back pain. Even

though Mr. Caudill had complained numerous times to his superiors at work and to his union

officers regarding the unsupportive seats on the locomotives, and even though he was only

thirty-five years old when he first reported his back pain to Dr. Darnell in 1985, he testified

that he attributed the pain to “getting older” and “part of life.”6



              Mr. Caudill alleges that he last worked for CSXT on June 29, 2008, by which

time his back pain had become debilitating. Around this same time, Dr. Darnell ordered an

MRI of Mr. Caudill’s lumbar spine. The June 26, 2008, radiological report of this MRI

showed, in part, “chronic bilateral L5 spondylolysis with grade 1 anterolisthesis at L5-S1,”

which was the same radiological impression from the x-ray taken in 2005. Dr. Darnell

referred Mr. Caudill to Dr. Phillip Tibbs, a neurosurgeon, who reviewed Mr. Caudill’s MRI




       6
      When Mr. Caudill first reported back pain to Dr. Darnell in 1985, he had worked for
CSXT for approximately eight years.

                                               5

and diagnosed him with spondylolisthesis.7 Dr. Tibbs performed surgery on Mr. Caudill after

which he opined that Mr. Caudill’s condition was disabling and medically disqualified him

from his work as a conductor for CSXT.



                 During Dr. Tibbs’s deposition, he explained that spondylolisthesis is a medical

term that means “slippage of the vertebrae.”8 He further testified that Mr. Caudill’s

symptoms “had been going on for at least five or seven years[;]” that his back problems dated

back to 1985; and that his back pain would occasionally be so bad that he could not get out

of bed or he would have to go to the hospital.9 Dr. Tibbs was asked to look at photographs


       7
          The circuit court found in its summary judgment order that Mr. Caudill filed this
FELA action based on a condition diagnosed in his June 2008 MRI, and that this was the
same condition diagnosed in his November 2005 lumbar x-ray. Although Mr. Caudill argues
this finding was in error because spondylolisthesis is not the same thing as spondylolysis, we
conclude that the circuit court was correct in its finding since both the 2005 x-ray and the
2008 MRI showed anterolisthesis. See Davenport v. State, ex rel., Wyoming Workers’ Safety,
268 P.3d 1038, 1041 n.1 (2012) (neurosurgeon explains that “anterolisthesis and
spondylolisthesis are synonymous.”); Brannon v. Astrue, No. 11–CV–169–PJC, 2012 WL
3779630, at *5 n.8 (N.D.Okla. Aug. 31, 2012) (“Anterolisthesis is another term for
spondylolisthesis, which is the forward displacement of one vertebra over another.
Dorland’s Illustrated Medical Dictionary 1684 (29th ed.2000).”); Barnes v. Shinseki, No.
10-1945, 2011 WL 5289724, at *3 n.3 (Table) (Vet.App. Nov. 4,2011) (“Anterolisthesis is
also called spondylolisthesis, which is ‘forward displacement of one vertebra over another
. . . .’ DORLAND’S at 98, 1754.”); Price v. Astrue, No. 4:07-CV-213-A, 2008 WL 1971385,
at *3 n.6 (N.D.Tex. Apr. 29, 2008) (“Anterolisthesis is another term for spondylolisthesis,
which refers to the forward displacement of one vertebra over another.”).
       8
      This is also consistent with the fact that anterolisthesis and spondylolisthesis are
synonymous. See supra n. 7.
       9
           Dr. Tibbs also discussed Mr. Caudill’s “pars defect,” a pre-existing condition likely
                                                                                  (continued...)

                                                6

of seats similar to those that Mr. Caudill sat on while riding on train locomotives after which

he was asked whether “vibration and jarring cause or contribute to cause injury to the spine

through degeneration?” Dr. Tibbs responded affirmatively. Dr. Tibbs was then asked

whether it is “generally accepted that riding in constrained and awkward postures for

extended periods of time can cause or directly contribute to cause degenerative changes in

the spine, also?” Dr. Tibbs answered, “[I]f that occurs over an extended period of time, yes,

it’s accepted.” Dr. Tibbs’s concluded that Mr. Caudill’s spondylolisthesis was caused or

directly contributed to by his work for CSXT.



              On September 17, 2010, Mr. Caudill filed his FELA action against CSXT

alleging that he suffered from spinal injuries caused by cumulative trauma during the course

of his employment with CSXT. On January 27, 2012, CSXT filed a motion for summary

judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure10 on the basis

       9
        (...continued)
caused by “a stress fracture - - in the adolescent or young adult spine[,]” which he described
as the “major predisposing anatomical factor leading to spondylolisthesis at the L5-S1 level.”
       10	
              “‘“A motion for summary judgment should be granted only
              when it is clear that there is no genuine issue of fact to be tried
              and inquiry concerning the facts is not desirable to clarify the
              application of the law.” Syllabus Point 3, Aetna Casualty &
              Surety Co. v. Federal Insurance Co. of New York, 148 W.Va.
              160, 133 S.E.2d 770 (1963).’ Syllabus Point 1, Andrick v. Town
              of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).”
              Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52,
              459 S.E.2d 329 (1995).
                                                                                    (continued...)

                                              7

that the complaint was filed more than three years after Mr. Caudill’s FELA claim accrued

and, thus, was barred by the FELA statute of limitations.



              The circuit court held a hearing on CSXT’s motion and, on February 27, 2012,

entered an order granting the motion. The circuit court concluded that Mr. Caudill had “a

long and documented history of back problems” for which he sought medical treatment

beginning as early as 1985. The circuit court further found that although Mr. Caudill claimed

he was unaware of his spinal injury until seeing Dr. Tibbs in 2008, Mr. Caudill himself had

“linked his back problems with his employment conditions” and that, given his multiple

complaints regarding the locomotive seats, “logic would dictate that he associated his back

problems with the seats he complained of not supporting his back.” Importantly, the circuit

court also found that under federal law,11 the fact that an injury has not reached its maximum

severity does not relieve a plaintiff of the duty to use reasonable diligence to discover the

injury and its cause. The circuit court concluded that the injury complained of in Mr.

Caudill’s September 2010 complaint “manifested itself well in excess of three years

preceding that date[,]” and, in fact, had manifested “at the latest in November 2005.”


       10
          (...continued)
Syl. Pt. 3, Grayiel v. Appalachian Energy Partners 2001-D, LLP, 230 W.Va. 91, 736 S.E.2d
91 (2012).
       11
        The circuit court cited Aparicio v. Norfolk & Western Railway Co., 84 F.3d 803 (6th
Cir. 1996), abrogated on other grounds by Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000), for this proposition.

                                              8

              On March 7, 2012, Mr. Caudill filed a motion to alter or amend the judgment

pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure.12 He argued that the

circuit court did not have the benefit of the deposition of his family physician, Dr. Darnell,

who allegedly testified that he “never even discussed musculoskeletal back problems” with

Mr. Caudill in 2005.13 On or about March 12, 2012, the circuit court entered an order

denying Mr. Caudill’s Rule 59(e) motion. The circuit court found that Dr. Darnell’s

deposition testimony “was not newly discovered evidence justifying a reconsideration of the

Court’s Final Order” nor did it “negate the remaining supporting evidence.” The circuit court

concluded that the “fact remains that [Mr. Caudill] reasonably should have known that his

employment with [CSXT] contributed to his injuries.” This appeal followed.

       12
        In syllabus point 2 of Mey v. Pep Boys–Manny, Moe & Jack, 228 W.Va. 48, 717
S.E.2d 235 (2011), this Court said:

              A motion under Rule 59(e) of the West Virginia Rules of Civil
              Procedure should be granted where: (1) there is an intervening
              change in controlling law; (2) new evidence not previously
              available comes to light; (3) it becomes necessary to remedy a
              clear error of law or (4) to prevent obvious injustice.
       13
         Upon careful review of that portion of Dr. Darnell’s deposition to which Mr. Caudill
refers, we find that, in fact, Dr. Darnell did not testify that “he never even discussed
musculoskeletal back problems” with Mr. Caudill. Rather, Dr. Darnell testified that during
a September 9, 2005, office visit with Mr. Caudill, his notes indicated that back problems
were not listed for that particular visit. With that said, even if Mr. Caudill had accurately
represented Dr. Darnell’s testimony in this regard, and had that testimony been timely offered
by Mr. Caudill in opposition to CSXT’s motion for summary judgment, the fact remains that
the medical records from Mr. Caudill’s multiple visits to Dr. Darnell’s office in November
2005 reflect that Mr. Caudill’s back problems were in fact discussed. As set forth above, a
November 2005 office visit led to Dr. Darnell ordering an x-ray of Mr. Caudill’s lumbar
spine.

                                              9

                                  II. Standard of Review

              At issue in this appeal is whether the circuit court properly denied Mr.Caudill’s

Rule 59(e) motion to alter or amend the circuit court’s order granting summary judgment in

favor of CSXT. This Court has held that

                    “[t]he standard of review applicable to an appeal from a
              motion to alter or amend a judgment, made pursuant to W.Va.
              R.Civ.P. 59(e), is the same standard that would apply to the
              underlying judgment upon which the motion is based and from
              which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v.
              American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d
              657 (1998).

Syl. Pt. 1, Graham v. Beverage, 211 W.Va. 466, 566 S.E.2d 603 (2002). Accordingly, we

look to the standard of review applicable to summary judgments.



              We stated in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451

S.E.2d 755 (1994), that “[a] circuit court’s entry of summary judgment is reviewed de novo.”

As we further explained, “we . . . must draw any permissible inference from the underlying

facts in the light most favorable to the party opposing the motion.” Id. at 192, 451 S.E.2d at

758 (internal citations omitted). “Summary judgment is appropriate where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving party, such as

where the nonmoving party has failed to make a sufficient showing on an essential element

of the case that it has the burden to prove.” Id., Syl. Pt. 4.




                                               10

              With these standards in mind, the parties’ arguments will be considered.



                                      III. Discussion

              In addressing the issues raised in this appeal, we must look to the substantive

law of federal courts:

              Pursuant to 45 U.S.C. § 56 (1948), federal and state courts have
              concurrent jurisdiction of claims brought under the Federal
              Employers’ Liability Act, 45 U.S.C. § 51 (1939). Although a
              state court may use procedural rules applicable to civil actions
              in the state court unless otherwise directed by the Federal
              Employers’ Liability Act, substantive issues under the Federal
              Employers’ Liability Act are determined by the provisions of the
              statute and interpretative decisions of the Federal Employers’
              Liability Act given by the federal courts.

Syl. Pt. 4, McGraw v. Norfolk & W. Ry. Co., 201 W.Va. 675, 500 S.E.2d 300 (1997). Both

parties agree that the substantive issue in this appeal involves FELA’s statute of limitations

and whether Mr. Caudill’s FELA action was timely filed.



              Pursuant to 45 U.S.C. § 56, “[n]o action shall be maintained under [FELA]

unless commenced within three years from the day the cause of action accrued.” In syllabus

point three of Jordan v. Baltimore & O. R. Co., 135 W.Va. 183, 62 S.E.2d 806 (1950), we

stated as follows:

              The provision of the Federal Employers’ Liability Act, as amended,
       prescribing a period of three years after a cause of action accrues within which
       to commence an action covered by that statute relates to the right which it
       creates and the remedy which it provides; and an action based upon or within

                                             11

      the scope of the statute, which is not commenced within the three year period
      of limitation, can not be maintained.

A cause of action accrues under FELA when the plaintiff knows or should have known both

of his injury and its cause. See Mix v. Del. & Hudson Ry. Co., 345 F.3d 82 (2d Cir. 2003),

cert. denied, 540 U.S. 1183 (2004). See also Johnson v. Norfolk & Western Ry. Co., No.

92-1719, 1993 WL 17061, 985 F.2d 553 (Table) *20 (4th Cir. Jan. 28, 1993) (citing, in part,

Urie v. Thompson, 337 U.S. 163 (1949)), cert. denied, 508 U.S. 972 (1993). Further, under

FELA, the statute of limitation is not an affirmative defense; rather, it is a condition

precedent to recovery. See Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112 (5th Cir.

1983) (compliance with 45 U.S.C. § 56 condition precedent to employee’s recovery in FELA

action) (citing Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th

Cir.1966)).



                When, as in the case sub judice, a specific date of injury cannot be determined

because an injury results from continual exposure to a harmful condition over a period of

time, the discovery rule applies. See United States v. Kubrick, 444 U.S. 111 (1979).

Although the Kubrick Court addressed a claim brought under the Federal Tort Claims Act,

Kubrick and Urie14 have been read together in the FELA context to mean that a claim does

not accrue until a claimant knew, or in the exercise of reasonable diligence should have



      14
           Urie v. Thompson, 337 U.S. 163 (1949).

                                               12

known, of both the injury and its work-related cause. See, e.g., Townley v. Norfolk &

Western Ry., 887 F.2d 498, 500 (4th Cir. 1989).



               In the case at bar, Mr. Caudill filed his FELA complaint on September 16,

2010. Accordingly, he had to prove that his injury accrued on or after September 16, 2007.



               Turning to the parties’ arguments, Mr. Caudill asserts that the accrual of

FELA’s limitation period is a question of fact for a jury and that the circuit court usurped the

role of the jury as fact-finder and failed to consider the facts in a light most favorable to him,

the nonmoving party.15 He contends that he could not have reasonably known prior to his

diagnosis by Dr. Tibbs in 2008 that there was a correlation between his back pain and the

lack of ergonomic support in the locomotive seats.            Mr. Caudill maintains that his

intermittent back pain is insufficient support for a legal conclusion that the statute of

limitations accrued on some earlier, unknown date. He further asserts that he never asked

Dr. Darnell for the results of his back x-ray taken in November 2005, therefore, he was not



       15
         Mr. Caudill also argues that the policy rationale behind the relaxed causation
standard for FELA actions, as set forth in CSX Transportation, Inc. v. McBride, _U.S._, 131
S.Ct. 2630, 2635 (2011), should extend to the consideration of CSXT’s statute of limitations
based summary judgment motion. CSXT responds that neither McBride nor FELA’s
statutory language offers any basis for applying a relaxed standard to elements other than
causation. Even if we were to extend McBride in such a fashion, we would still conclude
that under the facts of this case, there is no basis for a reasonable jury to find that Mr.
Caudill’s claim was timely filed.

                                               13

aware that he had been diagnosed with “grade-1 anterolisthesis of L5 on S1 secondary to L5

bilateral spondylolysis” in 2005.16



               CSXT maintains that the date a cause of action accrues can be a question for

a jury or for a court depending upon the specific facts of each case. In the case sub judice,

where the facts could not lead a rational trier of fact to find for the nonmoving party, this was

properly a question for the circuit court. CSXT argues that a FELA plaintiff who experiences

symptoms of an injury has a duty to investigate the injury and its possible cause. CSXT

further argues that the test requires an “objective inquiry” into what a plaintiff “should have

known, in the exercise of reasonable diligence.” Fries v. Chi. & Nw. Transp., 909 F.2d 1092,

1095 (7th Cir. 1990).



               In Fries, the court explained that “upon experiencing a symptom[,] a plaintiff

has a duty to investigate both the injury and any suspect cause.” Id. at 1096. Further, FELA

does not “allow a plaintiff to unilaterally postpone the running of the statute of limitations

by negligently failing to investigate the fact of and cause of his injury.” Id. at 1095-96 (citing

Kubrick, 444 U.S. 111, 123). As the Fries court further explained:




       16
         As previously stated, the radiological report from the MRI of Mr. Caudill’s back
taken in 2008 showed essentially the same findings as the x-ray taken in 2005: “chronic
bilateral L5 spondylolysis with grade 1 anterolisthesis at L5-S1.”

                                               14

              The Court held in Kubrick that a plaintiff must act diligently and
              cannot wait until the injury is actually made known to him by
              some unplanned incident, such as the unexpected medical
              diagnosis that occurred here. Rather, upon experiencing
              symptoms a plaintiff has a duty to investigate both the injury and
              any suspect cause. Kubrick, 444 U.S. at 123, 100 S.Ct. at 360.
              As the district court aptly stated, “[t]o allow a plaintiff to
              unilaterally postpone the running of the statute of limitations by
              negligently failing to investigate the fact of and cause of his
              injury would thwart the legislative intent of 45 U.S.C. § 56.”

Id. at 1095 - 96. Following this same logic, in Mix v. Delaware & Hudson Railway Co., 345

F.3d 82 (2d Cir. 2003), cert. denied, 540 U.S. 1183 (2004), the court stated as follows:

              Regardless of whether he [Mix] received an actual diagnosis,
              undisputed facts indicate that Mix knew that he was having
              problems with his hearing. The fact that Mix may not have had
              actual knowledge of his medical diagnosis would not relieve
              him of his duty of exercising due diligence based upon strong
              indications that he did, in fact, have an injury.

Id. at 87.

              Thus, even if we were to agree with Mr. Caudill’s contention that he sued for

spondylolisthesis, which was not diagnosed until 2008,17 the fact remains that he experienced

back pain as far back as 1985 and began receiving chiropractic treatment for his back pain

in 2001. Moreover, by late 2005, Mr. Caudill’s complaints were such that Dr. Darnell

ordered an x-ray of his lumbar spine. Even Mr. Caudill’s neurosurgeon, Dr. Tibbs, agreed

that Mr. Caudill’s symptoms “had been going on for at least five or seven years . . . [,]” by

the time Dr. Tibbs saw him in 2008. Importantly, at the same time that Mr. Caudill is


       17
        Again, we disagree with Mr. Caudill’s position that spondylolisthesis was a new
diagnosis. See supra n. 7.

                                             15

experiencing back pain, he complained numerous times to railroad officials, trainmasters, and

union officials about the seats on the locomotives.



              Mr. Caudill endeavors to evade the statute of limitations by arguing that his

family doctor, Dr. Darnell, never told him the results of his x-ray taken in 2005, and never

told him that his back pain was work-related. By the same token, Mr. Caudill admittedly

never followed up with Dr. Darnell concerning the results of his 2005 x-ray, and there is no

indication in the record that he ever told Dr. Darnell, or any other healthcare provider, of his

complaints that the unsupportive seats on the locomotives caused the jarring and vibration

on the locomotives to “end up right in your back.” Consequently, even if we were to accept

Mr. Caudill’s representation that he did not have actual knowledge of his medical diagnosis

in 2005, the case law discussed herein is clear: Mr. Caudill had an affirmative duty to

exercise due diligence because there were strong indications that he did, in fact, have an

injury. See Mix, 345 F.3d 82.



              Arguments similar to Mr. Caudill’s have been raised by other FELA plaintiffs.

For example, in Tolston v. National Railroad Passenger Corp., 102 F.3d 863 (7th Cir. 1996),

the court upheld the award of summary judgment in favor of the railroad on a statute of

limitations basis. Tolston had a long history of knee pain during her employment with

Amtrak, which required her to walk on uneven ground, climb on and off railcars, as well as

to bend and stoop. Tolston finally had knee surgery in May 1992. Her surgeon, upon

                                              16

learning of her job with Amtrak, opined that her knee problems might be associated with her

employment. Tolston filed her FELA action in April 1995. In addressing the defendant’s

motion for summary judgment on the basis that the action was untimely filed, the court noted

that Tolston endeavored to distinguish her case from Fries by arguing that she attributed her

knee pain to ordinary wear and tear and being overweight. The Tolston court found this

distinction to be unpersuasive and noted that, “[a]t some point, persons with degenerative

conditions have a duty to investigate cause. See, e.g., Aparicio, 84 F.3d at 814-15 (applying

Fries to FELA claim based upon carpal tunnel syndrome).” Id. at 866. As the Tolston court

explained:

              Following Urie and Kubrick, the Fries court summarized the
              rule for FELA cases as follows: “a cause of action accrues for
              statute of limitations purposes when a reasonable person knows
              or in the exercise of reasonable diligence should have known of
              both the injury and its governing cause.” 909 F.2d at 1095. Both
              components, the court emphasized, require “an objective inquiry
              into when the plaintiff knew or should have known, in the
              exercise of reasonable diligence, the essential facts of injury and
              cause.” Id. A plaintiff need not be sure which cause is
              predominant, as long as she knows or has reason to know of a
              potential cause. Just to be clear . . . this rule imposes on
              plaintiffs the affirmative duty to investigate the cause of a
              known injury.

Id. at 865 (emphasis added).



              Similarly, in Axe v. Norfolk Southern Railway Co., 972 N.E.2d 243 (Ill.App.

Ct. 2012), Axe, a FELA plaintiff, had been seeing his treating physician for years for bilateral

knee complaints. The court noted that Axe had not presented any evidence to show that he

                                              17

had made any effort to learn the cause of the degenerative arthritis in his knees. Axe argued

that the FELA statute of limitations did not begin to run because “not one medical record

from [his] doctors even mentions that his conditions were related to his work on the

railroad.” Id. at 247. As the court noted, Axe did not believe that he bore any responsibility

to seek out possible causes for his knee pain noting that he had not sought “any advice from

anyone in the medical or legal community about the cause of his painful knee problem.” Id.

Relying, in part, upon both Tolston and Fries, the Axe court concluded that the trial court did

not err in granting summary judgment in favor of the defendant railroad on the basis that the

statute of limitations barred the cause of action, which was filed more than three years after,

in the exercise of reasonable diligence, Axe should have known about the cause of his

condition. Id. at 248. See also McNutt v. CSX Transp., Inc., No. 3:08-CV-601-H, 2010 WL

1688788 (W.D. KY Apr. 26, 2010) (medical diagnosis not required for FELA plaintiff to

reasonably know that injury possibly related to work; a plaintiff who has reason to suspect

injury is work related must take steps to see whether it is); Johnson, 985 F.2d 553 (Table)

*20 (4th Cir. Jan. 28, 1993) (plaintiff could not carry burden of proof that he filed lawsuit

within three years of accrual of cause of action where action filed in 1988 but hearing

problems began as early as 1979); Reed v. CSX Transp., Inc., No. 93-1393, 1993 WL

475971, 12 F.3d 205 (Table) at *21 (4th Cir. Nov. 17, 1993) (cause of action untimely where

FELA plaintiff knew he had hearing loss and only significant noise in life was employment

with railroad, citing both Fries and Kubrick for proposition that FELA plaintiffs may not

avoid statute of limitations by failing to seek diagnosis or investigate cause).

                                              18

               In applying these precepts to the case at bar, we also bear in mind that courts

have said that the statute of limitations under FELA does not turn on a plaintiff’s subjective

knowledge, but on an objective inquiry into when a plaintiff knew or should have known, in

the exercise of reasonable diligence, the critical facts of his injury and its cause. See, e.g.,

Fries, 909 F.2d at 1095 (“Both components require an objective inquiry into when the

plaintiff knew or should have known, in the exercise of reasonable diligence, the essential

facts of injury and cause.”). Thus, we now hold that the statute of limitations under the

Federal Employers’ Liability Act, 45 U.S.C. § 56 (2006), requires an objective inquiry as to

when a plaintiff knew or should have known, in the exercise of reasonable diligence, the

facts of his or her injury and its cause. Accordingly, for purposes of the case at bar, we must

objectively consider the facts to determine whether Mr. Caudill carried his burden of

presenting sufficient evidence that he neither knew, nor should have known, that his back

injury was related to his employment prior to September 16, 2007.



               Our application of the principles outlined above to the question of when Mr.

Caudill’s action accrued dictates a finding that the statute of limitations expired, at the latest,

in 2008, three years after he knew, or should have known in the exercise of reasonable

diligence, of both his injury and its cause. Our review of the evidence demonstrates that Mr.

Caudill had a long history of back pain; a history of seeking medical treatment for his back

pain from both his family physician and chiropractors; and a history of complaining that the

seats on the locomotives were unsupportive of his back in relation to the jarring and vibration

                                                19

of the trains. The fact that his complaints were also made at union safety meetings clearly

signals that he considered the issue to be more serious than just personal comfort. Under

these facts, reasonable diligence should have led Mr. Caudill to the conclusion, long before

September 2007, that he had a work-related injury. To be clear, the injury forming the basis

of Mr. Caudill’s claim was the same injury shown on his lumbar x-ray taken in November

2005.18 Had he fulfilled his duty to investigate by consulting with a specialist in the early

2000s, or by following up with Dr. Darnell concerning the results of his 2005 x-ray, he would

have known of his injury, at the latest, in 2005.



                 As discussed, our research reveals that the question of whether a FELA claim

has been timely filed can either be a jury question or one appropriate for summary

disposition.19 Indeed, as the cases cited herein demonstrate, each case turns on its own


       18
            See supra n. 7.
       19
         Although we are required to apply federal substantive law to the question of the
timeliness of Mr. Caudill’s claim, we note that he relies, in part, on Gaither v. City Hospital,
Inc., 199 W.Va. 706, 715, 487 S.E.2d 901, 910 (1997), in support of his argument that when
he knew or should have known of his injury was a jury issue. In Gaither, we held that “the
question of when plaintiff knows or in the exercise of reasonable diligence has reason to
know of medical malpractice is for the jury.” Id., Syl. Pt. 4 (emphasis added). We also
generally commented that “[i]n the great majority of cases, the issue of whether a claim is
barred by the statute of limitations is a question of fact for the jury.” Id. at 715, 487 S.E.2d
at 910 (emphasis added). We had the opportunity to address this language in Legg v. Rashid,
222 W.Va. 169, 176, 663 S.E.2d 623, 630 (2008), wherein we stated, as follows:

              In Gaither, this Court noted that “[i]n the great majority of cases, the
       issue of whether a claim is barred by the statute of limitations is a question of
                                                                                 (continued...)

                                              20
particular set of facts. Having considered the relevant and undisputed facts in the case at bar

in the light most favorable to Mr. Caudill, and applying the law cited herein to those facts,

we find that Mr. Caudill failed to show that his cause of action accrued within three years of

the filing of his FELA claim. Consequently, his cause of action was untimely filed under

FELA and summary judgment was properly granted in favor of CSXT.



                                      IV. Conclusion

              For the reasons set forth herein, the Court affirms the February 27, 2012, and

March 2, 2012, orders of the Circuit Court of Mingo County, West Virginia.

                                                                                    Affirmed.




       19
         (...continued)
       fact for the jury.” 199 W.Va. at 714, 715, 487 S.E.2d at 909, 910. While many
       cases will require a jury to resolve the issue of when a plaintiff discovered his
       or her injury, including the related issue of whether the plaintiff was
       reasonably diligent in discovery of his or her injury, the issue can also be
       resolved by the court where the relevant facts are undisputed and only one
       conclusion may be drawn from those facts. See Harrison v. Davis, 197 W.Va.
       651, 660, 478 S.E.2d 104, 113 (1996) (upholding trial court’s decision that
       plaintiff failed to exercise reasonable diligence in discovering injuries);
       Cathedral of Joy Baptist Church v. Village of Hazel Crest, 22 F.3d 713, 719
       (7th Cir.1994); Witherell v. Weimer, 85 Ill.2d 146, 52 Ill.Dec. 6, 421 N.E.2d
       869, 874 (1981).

Legg, at 176, 663 S.E.2d at 630 (emphasis added). Accordingly, under state law, as well as
federal law, the question of the timeliness of a claim can be decided by a court through
summary judgment.

                                              21
