Vimbai Chikomo Jan. 28, 2016, 1:41pm


PHILADELPHIA - A former railroad car inspector claiming that work-related injuries forced him to retire from railroad has been awarded $597,000 by a jury, after his attorney argued his injuries didn't prevent him from running 5K races.

After 38 years, Mike Buttaccio ended his employment with CSX Transportation Inc in June 2013 due to shoulder and knee injuries resulting from years of handling heavy objects in awkward positions while working.

Buttaccio filed a lawsuit against the railroad owner, CSX Transportation Inc, and previous owners Consolidated Rail Corp and American Premier Underwriters Inc, alleging the companies had violated the Federal Employer Liability Act.

On Nov. 13, 2015, a jury consisting of four men and eight women determined that defendants American Premier, Consolidated Rail and CSX were 9.5 percent, 40 percent, and 50 percent liable, respectively, for Buttaccio’s injuries. The jury also found that Buttaccio was 0.5 percent responsible for his injuries, which reduced the amount award to $597,000.

“The word ‘delight’ sums up my response to the verdict,” attorney David Lockard of David Lockard & Associates told the Pennsylvania Record. “I’m very delighted for my client.”

During the seven-day trial in the Philadelphia Court of Common Pleas, Lockard called experts in orthopedic surgery, economics and ergonomics to the stand to corroborate Buttaccio’s claim.

The defendants countered by arguing that Buttaccio’s injuries were a result of his age and thyroid condition, not his employment, and challenged the assertion that Buttaccio would have worked up to age 67. The defense also questioned the credibility of Buttaccio’s claim because he participated in 5K races before and after his employment ended.

“I countered that by saying my client’s problems were not so much going forward but side-to-side motion,” Lockard said.

“And I argued that racing had nothing to do with his knee problems. However, if he had to lift heavy things or had to go side-to-side as he had to do at work, it would have been a problem. Fortunately there were one or several runners on the jury who said, ‘That’s exactly right.’”

The ergonomics expert testified that the 220-pound equipment used to put derailed cars on rails (rerailers) and the 80-pound knuckles (part of a train-car coupler) Buttaccio was required to lift with the help of a coworker should have been lifted by more than two workers.

The expert in orthopedic surgery recommended knee surgery and stated that Buttaccio was susceptible to recurring rotator-cuff tears.

“It wasn’t difficult to find the experts,” Lockard said. “The experts in this area get used repeatedly, particularly the economists.

"They basically take the plaintiff’s age and his or her W-2 and tax forms, and put them into a formula. They take out the taxes and then reduce the Present Value if you have loss of earning capacity."

According to the claim, Buttaccio attempted to find another job at CSX, but was unsuccessful. So he settled for a municipal job that pays $4,000 a year.

Buttaccio sought to recover about $139,000 in past lost wages and $575,000 to $625,000 in past and future lost earnings, based on a retirement age of 67. Buttaccio also claimed that his continued pain disrupts his daily activities and sought damages for past and future pain and suffering.

Lockard said that Buttaccio was found 0.5 percent responsible for his injuries because he had been told by his orthopedist that he needed surgery, but he put it off for about a year because he wanted to work enough days so he would be eligible for vacation pay the following year.

There have been thousands of workers who have sustained physical injuries as a result of working for the railroad industry, Lockard said.

“To me, that’s the big story. Back in the 1990s, there were carpal tunnel claims by the thousands. Then there came claims of elbow injuries, shoulder injuries, then neck, spine, hips and knees,” he said. “So the railroad should have known, based on its claims data, that people doing this work were having these problems.”

Lockard said that the defendants are appealing the jury’s decision.

“They have filed post-trial motions basically saying that he got too much,” Lockard said. “The railroad hates these cases because they think everyone who gets to 55 is thinking of suing them for the musculoskeletal injuries, and they don’t want to pay."

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