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10/19/93 JERRY WAYNE MATEER v. UNION PACIFIC

October 19, 1993

JERRY WAYNE MATEER, PLAINTIFF-RESPONDENT,
v.
UNION PACIFIC SYSTEMS, D/B/A UNION PACIFIC RAILROAD AND MISSOURI PACIFIC RAILROAD COMPANY, RESPONDENTS-APPELLANTS.



Appeal from the Circuit Court of the City of St. Louis. Hon. Brendan Ryan.

Appellant's Motion for Rehearing or Transfer Filed November 3, 1993

Kent E. Karohl, Judge, Kathianne Knaup Crane, P.j., & Gerald J. Smith, J., concur.

The opinion of the court was delivered by: Karohl

This is an appeal by Union Pacific Systems (railroad) after a verdict and judgment in favor of Jerry Mateer in an action brought pursuant to the Federal Employers' Liability Act (FELA).

Mateer began working for the railroad in 1960. During the next twenty-four years he performed many and varied duties as part of his employment. He is now working for railroad as an inspector. In February, 1984, he was a machinist. From February, 1984, until March, 1985, and from November, 1985, to April, 1987, his work consisted of lubricating railroad locomotives. He worked in a four-foot deep pit and lubricated locomotives which were parked above the pit. The job required the machinist to check the lubrication in bearing boxes, carry a bucket containing up to twenty-five pounds of lubrication and move under the locomotive while bending, stooping and squatting.

In November or December, 1985, Mateer began making complaints about his health. He recalled a November or December, 1985, incident while working when he felt a pop in his back. He felt a sharp pain in the center of his back. He finished work on that day and did not really think much about it. Mateer did not report the event to the railroad. He acknowledged he was familiar with the manner in which a report of injury to the railroad was required.

Because of the pain, Mateer went to see Dr. Glen Davis, a gastroenterologist. Dr. Davis examined him for a gall bladder problem, but found none. In February of 1987, Dr. Davis referred Mateer to Dr. Ashley Ross, "a back doctor." For the first time, Mateer was informed that he suffered from a chronic back strain. When Mateer returned to work after a vacation, he presented a slip from Dr. Ross recommending thirty days light duty. On April 21, 1987, he presented the light duty slip and an injury report to railroad. He explained he did not file an injury report previously because neither he nor his doctors knew what was wrong with him. As soon as he was informed that he had a back problem related to the pit job, he filled out and filed the personal injury report. Eight days after receiving the report railroad sent Mateer to Dr. Holmes. Dr. Holmes performed an EKG, a stress test, checked blood pressure and blood count and discussed the back. He recommended that Mateer go back to work but continue on light duty.

In May of 1987, Mateer consulted Dr. Harold Chakales, a board-certified orthopedist, "to find out what the problem was." After a number of tests, Dr. Chakales told Mateer he suffered residuals of a thoracic and cervical spine strain. He later concluded it was a chronic dorsal strain. In October of 1987, he discharged Mateer to return for treatment as needed. Mateer saw Dr. Chakales in 1989, 1990 and 1991, when he received injections of cortisone and xylocaine.

Mateer also consulted with Dr. Dillard Densons, a neurosurgeon, who diagnosed fibromyositis after a myelogram, Dr. Roberta Monson, a rheumatologist, who agreed with Dr. Denson, and Dr. Richard W. Houk. Mateer informed Dr. Houk that his back pain symptoms were more severe and more aggravated when working the lube job position. Dr. Houk found some osteoarthritic changes in the thoracic spine and fibrositis but concluded that neither condition was work-related.

Dr. James F. McFadden, a general surgeon, examined Mateer for the purpose of testifying on his behalf. The examination occurred in February, 1992. He testified Mateer suffered from exaggerated kyphosis which was work-related. He also found Mateer suffered myofascitis with myofiascial pain syndrome and thoracic disc syndrome as a result of the work he performed in the lube job position. Dr. McFadden testified in support of Mateer's theory that he suffered a cumulative trauma to his thoracic spine which caused his spine to be deformed. He concluded the conditions he found did not occur as a result of an accident that occurred on one day. He found the back condition was the result of cumulative trauma, not sudden acute trauma. Rather, it was related to job activities over a period of time. In his opinion, the conditions were job-related whether or not Mateer first noticed pain in his back while off work. Mateer did not inform Dr. McFadden as part of his history that he had sustained sudden acute trauma in late 1985 or at any other time. Dr. McFadden expressed the opinion that the problems Mateer experienced with his back were the result of the work he performed in the lube job position before and after the onset of pain in 1985.

Railroad agrees Mateer made a submissible case on the issue of liability by offering evidence from which the jury could find railroad failed to provide a safe place to work and negligence under FELA, but not that the breach of duty caused employee to sustain a back injury. In briefs filed with this court, railroad "does not dispute that there was sufficient evidence adduced from which a jury could infer that the railroad did not provide a reasonably safe place to work or did not provide adequate help." However, the first claim of error contests a finding that the evidence was sufficient to prove "that any such alleged negligence was the cause of plaintiff's medical condition."

In reviewing a proof of medical causation issue we follow two mandates. Because this is a FELA suit, fact questions, to the maximum extent proper, shall be left to the jury. Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 509, 1 L. Ed. 2d 493, 77 S. Ct. 443 (1957). We view the evidence and reasonable inferences therefrom in a light most favorable to plaintiff and disregard defendant's contrary evidence. Anderson v. Burlington N. R.R. Co., 700 S.W.2d 469, 472 (Mo. App. 1985).

Given the standard of review, Dr. McFadden's testimony is sufficient to support a finding that the unsafe working conditions caused Mateer's back problems. In response, railroad contends plaintiff cannot have the benefit of Dr. McFadden's medical causation testimony because it is in direct conflict with his own testimony on the causation issue. Railroad relies on Elliott v. Wescoat, 336 S.W.2d 649, 651 (Mo. 1960); West v. St. Louis-San Fransico Ry. Co., 295 S.W.2d 48, 53 (Mo. 1956); and Mollman v. St. Louis Public Serv. Co., 192 S.W.2d 618, 621 (Mo. App. 1946).

These cases support the sound rule that one may not predicate recovery upon a theory which is contrary to one's own positive evidence. In Mollman, plaintiff was a passenger in a taxicab which was struck by another vehicle. She sued both drivers. In her testimony, she absolved the taxicab driver of negligence but attempted to submit her claim against the taxicab ...


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