This has been a hard fought and difficult case despite the years and decades the railroads (RR) have been held accountable for injuries arising out of bug bites and other noxious animals. In fact, years ago a railroad employee was bit by a bug and required amputation of both legs due to infection. This case, while not as dramatic, resulted in a life-threatening and crippling injury to the conductor.
I took this case in the face of what I knew would be a tough battle with the RR. I knew the RR had a duty under the law to take appropriate action to protect the employee in light of the years of experience the RR had with insect bites and the serious injuries that can occur. Our office then went forward with our investigation and suit to determine what happened and why did the employee feel the RR was responsible. We discovered a RR that was not only careless but callous when it came to RR injuries. We found a RR that would blame the employee rather than follow the recommendation of the Center for Disease Control to minimize employee risk of West Nile Virus. We discovered a RR that completely failed to train and instruct employees in the application of larvacide or other measures to protect themselves from the known and mounting hazards of West Nile.
Initially, we were presented with a very sad situation of a 50 year old conductor who has been suffering the effects of severe and crippling encephalitis following infection of West Nile Virus. She lost her hearing, balance and strength on the left side, and had symptoms similar to a severe stroke victim. Her husband was forced to quit his job to care for his sick wife. Friends and neighbors helped as well. She reported to us that she was swarmed by mosquitoes as she performed a mandatory roll-by inspection at dusk while working for the Union Pacific. She reported the mosquito infestation to the dispatcher who laughed. She was bit by more mosquitoes when she returned to the Bill, Wyoming yard office. This all occurred at a time when the RR was monitoring the Center for Disease Control warnings to employers and instructing employers to limit outside activities of employees to the extent possible. We contend that the roll-by inspection was an activity that was unnecessary. It could have been completed, if necessary, from the confines of the locomotive. We also contend the RR should have provided proper mosquito protection because it is well known that mosquitoes carry deadly diseases, including West Nile. Finally, we contended the RR should have treated the nearby “breeding ponds” with proper larvacide before the hatch in order to minimize any mosquito hatches during a time of country wide West Nile scares. The evidence showed the person responsible for the application of larvacide was never trained on when or how to apply the larvacide. In fact, he waited until after mosquitoes and complaints were coming in before applying the larvacide. The yard office walls looked like they were wall papered with the smashed bodies of mosquitoes.
Just a few days later and consistent with the known incubation period for West Nile the conductor began to feel weak, nauseous, and fatigued to the point she needed the help of two people to walk into the doctor’s office. She eventually became non-responsive and near comatose with swelling of the brain. The employee had become so sick from the bites that she was hospitalized for days and unresponsive to her physicians. It was confirmed by blood tests that she was experiencing West Nile encephalitis, a life threatening condition.
The employee is one of the nicest people you could hope to meet, down to earth, honest and hardworking. She is just like many other injured workers who was just doing what she was told. She has endured a life threatening injury and illness and is left with severe residuals, including hearing loss, loss of balance and loss of strength on her left side. She is totally disabled from her job and frankly, the entire competitive workforce. Her doctors are very supportive of her and, in fact, saved her life by recognizing the risk and taking decisive action for her benefit. The RR on the other hand knew of the risk but failed to take steps that could have completely eliminated the risk by eliminating roll by inspections at dusk and night time, providing proper mosquito repellant and properly training its personnel in the application of the larvacide. The evidence showed the RR knew the disease was spreading but neglected to take appropriate action in the face of the obvious risk to its employees working outdoors. The RR continued to place all of its employees at risk of life threatening illness in the face recommendations from the Center for Disease Control to minimize outside work at dusk. Mrs. Deviney lost her job, her health and independence. We think the RR that profited from her unnecessary exposure as she carried out their work should share in her loss monetarily.
We fought the RR on this case because we believe that they should take steps to protect the employees where necessary from risk that can easily be eliminated with due care. We fought the RR because they failed to follow their own rules to take the safe course of action. We fought the RR because they neglected the safety of their employees and are the appropriate entity to bear the cost of the losses she has suffered.
Injuries happen in many different ways, some are traumatic and some are less dramatic but are every bit as disabling and life changing. The RR is full of hazards, many of which are known to the RR and not to the employees. We know they could have minimized exposures to asbestos, loud noises and the resulting hearing loss, excessive whole body vibration, creosote, mineral sprits and diesel exhaust to name just a few. The RR goes on in perpetuity raking in the profits of its great adventure while the damaged lives of the men and women serving it dissipate in the quiet darkness of their obscurity. We are here to help the individuals and their families maintain their dignity and self respect after their injuries. The RR would just as soon close their eyes to the realities that befall the injured worker once the dust settles. We are here to remind them of their continuing duty.
I hope this makes railroaders more aware of the hazards in the work place and that if and when a serious injury occurs to a railroader, the law firm of Hunegs, LeNeave & Kvas will fight for them if they feel the RR is responsible for what happened. - Cortney LeNeave
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