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Mr. Ainsworth's doctors started him on a routine course of epidural steroid injections that did not relieve the pain for more than a few weeks at a time. He had disc surgery to lessen the back pain, only to develop more pain in his hips a few months later. A specialist diagnosed bilalteral avascular necrosis in both hips, a condition that results in the death of bone tissue. Several medical journals report avascular necrosis as a rare but known complication of steroid therapy. After conservative treatment failed, Mr. Ainsworth underwent bilateral hip replacement surgery.

Mr. Ainsworth's injuries prevented him from returning to work as a conductor. Just six weeks before trial, the BNSF suggested he could work "security," though no formal job offer was ever made. Settlement discussions followed but were unsuccessful. At the time of trial, Mr. Ainsworth had not yet returned to any type of work.

Mr. Ainsworth sued for both the back and hip injuries, arguing at trial that "but-for" the on-the-job back injury, he would not have needed the epidural steroid injections that caused his hip injuries. He further argued the hip problems made it unlikely he would be able to return to work as a conductor. The BNSF said Mr. Ainsworth only had a minor disc bulge and that his hip problems were unrelated to his work.

The BNSF hired a forensic orthopedic surgeon who testified that epidural steroid injections are a very common treatment for back injuries like Mr. Ainsworth's. He further testified that Mr. Ainsworth's hip problems were not caused by these injections. The expert testified that there were no reported cases in the medical literature of steroid injections causing avascular necrosis. This was proven false during cross-examination at trial.

After deliberating only six hours, the jury decided in favor of Mr. Ainsworth, finding the BNSF 80% at fault for both the back and hip injuries. Mr. Ainsworth, now age 36, had worked for the BNSF for over 14 years at the time of the incident. Attorney Fred Bremseth, representing Mr. Ainsworth, tried the case to a jury for four days in federal court. He was assisted at trial by attorney Jim Vucinovich.

Mr. Bogard was injured while trying to align the switch points with a metal pry bar, kept at the switch by Western Metals, as the conductor pulled at the switch handle.   Settlement efforts were attempted before trial but were unsuccessful.  The railroad’s last offer was $200,000. 

Mr. Bogard and his conductor testified it took several minutes to clean out and throw the switch.  In contrast, Western Metals’ general manager testified that: 1) the switch was always kept in proper working order; 2) he had never seen nor authorized a bar kept at the switch; 3) the use of a pry bar would be against company policy; and 4) he had a surveillance video of the area showing the movement and timing of the train in and out of the property, which would disprove Mr. Bogard’s claim.  In addition, a defense expert created an animation from the surveillance video, and testified there was insufficient time at the switch for Mr. Bogard to have worked it or sustain an injury. 

The jury disregarded the videos and disagreed with the general manager’s testimony, finding Western Metals and the Union Pacific equally negligent in causing this incident.  They attributed no fault to Mr. Bogard, and found no basis for the defendants’ claim that he failed to mitigate his damages.  The jury awarded Mr. Bogard $525,000 for the injured shoulder and lost wages and benefits. The Union Pacific paid for all related medical expenses.

The jury trial lasted a week, and witnesses included Mr. Bogard, his wife, co-workers, treating physicians, an economist, the railroad claims agent, and a doctor and engineer hired by the defendants, as well as Western Metals’ general manager. 

Mr. Bogard continues to have limitations with his left shoulder and did not return to work.  He is 60 years old and lives in the Denver area.  He started his railroad career in 1974.

Mr. Bogard was represented by senior partner John Rossi and assisted by partner Greg Kuderer of the Rossi, Cox, Vucinovich, Bremseth & Flaskamp, P.C., Denver office.   Please contact the Denver office at 1-800-325-4014 or visit our website at www.rcvpc.com for important information relating to FELA claims. 

Greg was previously an officer and shareholder with the firm of Ericksen, Zierke, Kuderer & Madson, PA, in Fairmont, Minnesota where he handled a variety of cases, including complex personal injury and multi-party litigation.  He has successfully tried over 50 cases to verdict, is a trained mediator, and has served as sole and panel arbitrator in personal injury, contract and class action claims. Greg has appeared many times before the Minnesota state and federal district and appellate courts.  His expert trial skills will only enhance our firm’s abilities to litigate FELA and serious personal injury cases.  He joins John Rossi, Jim Cox, and Doug Rossi in the Denver office where he will concentrate his practice on representing injured railroad workers under the FELA.  Greg has been an attorney since 1981. 

We welcome Greg to the firm!

Joining the firm is renowned FELA practitioner Fred Bremseth, whose Minneapolis-based law firm complements an already growing practice in the Midwest and West.  The combined firm will continue Bremseth’s important work in the area of whole body vibration.  Whole body vibration claims involve damage to the spine due to cumulative vibrations over time.

“Fred brings a wealth of experience and knowledge to the firm,” said Jim Vucinovich, RCVBF’s managing partner.  “He is an outstanding FELA trial lawyer who considerably adds to our aggressive representation of our clients.”

Also based in Minnesota is Tom Flaskamp, a highly skilled FELA attorney with over 17 years’ experience handling complex personal injury claims.  Tom will run the law office with Fred and continue to handle cases throughout the Midwest and Southwest.

“Tom is an outstanding attorney who’s contributed greatly to the overall success of the firm,” Vucinovich said. “Together, he and Fred will anchor our Minneapolis office.” 

Additionally the firm has four other offices located in:

• Bellevue, Washington
• Denver, Colorado
• Lincoln, Nebraska
• Portland, Oregon

The firm is designated legal counsel for the following unions:

• American Train Dispatchers www.atda.us
• Brotherhood of Locomotive Engineers and Trainmen www.ble.org
• Brotherhood of Maintenance of Way Employees www.bmwe.org
• Brotherhood of Railroad Signalmen www.brs.org
• International Association of Machinists and Aerospace Workers www.goiam.org
• International Brotherhood of Electrical Workers www.ibew.org
• National Conference of Fireman and Oilers, SEIU www.ncfo.org
• Sheet Metal Workers International Association www.smwia.org
• Transportation Communications Union www.tcunion.org
• United Transportation Union www.utu.org

“The name change acknowledges the addition of legal talent to the firm.  Our mission remains to provide outstanding client service and results." Vucinovich said.

Rossi, Cox, Vucinovich, Bremseth & Flaskamp PC provides its rail labor and personal injury clientele the highest quality legal services combined with excellent client communications, integrity and aggressiveness to achieve the best possible result.  Please visit our website at www.rcvpc.com for more information.

We are proud to provide our firm's high quality legal services, integrity and aggressive legal representation to the BLET community, and we are equally proud of the BLET's confidence in Mr. Cox.

Super Lawyers are voted on by their peers. Over 17,000 ballots were sent to practicing attorneys, followed by research on each individual candidate, including evaluation of peer recognition and professional achievement, and then final selection by a blue ribbon panel of review.

Phil is married with two adult children. He is a life long resident of Washington state and practices throughout the Northwest and West coast. Congratulations to Phil!

A couple of recent verdicts obtained by Rossi, Cox & Vucinovich lawyers help to illustrate this point. John Rossi represented Walter ’Scott’ Wallace, a B&B employee from Idaho, on a case tried in Pocatello, Idaho in the fall of 2005. Mr. Wallace sustained a mid-back injury while working on a bridge abutment using inadequate tools for the task. In fact, the evidence at trial proved that there had been prior complaints about such poor tools that the workers were forced to use for bridge repair. Mr. Wallace suffered a soft tissue injury to his low back but did not require surgery. He missed about one to two months of work and returned to work without restriction. At the time of trial, the railroad offered $15,000 in full settlement of the claim. Since the offer was too low, Mr. Wallace proceeded to trial. A verdict was obtained for $97,000, which was upheld and then, ultimately paid by the Union Pacific. In fact, the Union Pacific had to pay costs to Mr. Wallace in the amount of approximately $4,000 resulting in a total payout of $101,000. Similarly, in another case involving the Union Pacific, Cameron Giebler, an engineer, was injured when struck from behind by another Union Pacific employee driving a light pickup truck. The injury occurred in Grand Junction, Colorado and the case was tried before a Denver County, Colorado jury in November of 2005. Jim Vucinovich represented Mr. Giebler at trial. The evidence proved that the Union Pacific had long-standing notice as to the unsafe working conditions in the yard, failure to separate pedestrian traffic from vehicular traffic, erect proper signs, and reduce speeds, etc. Mr. Giebler suffered a serious shoulder injury requiring several surgeries and was unable to return to work. The jury found in favor of Mr. Giebler and awarded him a verdict of $1.5 million, reduced to $1.425 million after off-setting his five percent comparative negligence. Prior to trial, the Union Pacific made an offer of judgment in the amount of $150,000. The railroad ended up paying the net verdict plus a substantial portion of Mr. Giebler’s cost of trial.

Both cases illustrate the importance of not only trying, but winning substantial verdicts. In both cases, the offers were far too low to consider as any type of reasonable settlement, therefore forcing the injured worker to trial. Mr. Wallace’s case involved a back to work situation, where the railroad ended up paying almost seven times of what it had offered at the time of trial. The other, an out-of-service case, resulted in the railroad paying Mr. Giebler nearly ten times the amount it had initially offered. These verdicts clearly help raise the value of all FELA cases and demonstrate the importance of exercising your rights under the FELA.

When we speak of cumulative trauma, we speak repeti- tive motion. Our expert calculated that over ninety million footsteps are taken in a rail- road career on road ballast. Each step on road ballast causes torsion (twisting) of the lower leg, in relationship to the upper leg, focusing a grinding action at the knee joint. Millions of steps over a railroad career while carrying a load or lifting compresses the knee joint simultaneously intensifying the grinding action caused from walking on road ballast.

This is but one of the many known mechanisms causing cumulative trauma injuries. Degenerative disc disease in the low back, rotator cuff shredding, hip osteoarthritis, carpal tunnel syndrome, etc.— the list goes on. The equation of a fair day’s wage for a fair day’s work was not intended to carry an unfair sacrifice -- your health. Cumulative trauma strikes more and more members of rail labor as the work force ages. This epidemic was not unforeseen. Bad backs were common in Egypt as workers toiled on the pyramids. Fifty years ago, bad knees seen in miners were called the “beat knee.” Uneven ground contributed to osteoarthritis of the knee in farmers.

The carriers defend cumulative trauma injuries with the three year statute of limitations (SOL). The determination of when an SOL will start to run is complex, case specific, and you should seek legal counsel immediately. Generally speaking, the SOL is three years from the date that a reasonably prudent person knew or should have known that they are injured as a result of work. The railroad wants a tape-recorded statement from cumulative trauma claimants in part to establish a SOL defense. The railroad hopes that after controlling the millions of your footsteps along the cumulative trauma path, it may control your last step and discourage you from receiving professional legal advice from designated counsel. Seek advice early.

At trial, Mr. Giebler argued the UP ignored direct warnings from the Grand Junction Safety Committee that had previously identified unsafe conditions in the Grand Junction yard and recommended changes to protect pedestrians, including blocking the roadway from traffic, signs and speed humps. Witness testimony detailed specific warnings to railroad management regarding vehicles traveling too fast, lack of pedestrian and other signs, as well as little protection for employees walking in the yard facility. On the day Mr. Giebler was hurt, UP employee Brady Tubbs was late for work and admitted being blinded by the sun as he approached the yard office area. Mr. Giebler had just tied up his locomotive power and was walking toward his car in the company parking lot adjacent to the yard office. Mr. Giebler was struck from behind, vaulted onto the hood of the pickup truck, and then thrown off. He suffered extensive injuries to his left shoulder requiring two surgeries. Though Mr. Giebler worked tirelessly to recover from his injuries and surgeries, even continuing his rehabilitation program to this day, he is still left with permanent nerve damage and loss of function to the left shoulder.

The UP denied responsibility claiming Mr. Giebler was primarily at fault for walking with his “back to the traffic.” The railroad also denied any responsibility for Mr. Tubbs whom they claimed was “not working” since he had not yet reported to the yard office to officially start his work duties. The railroad offered $150,000 on the eve of trial. The jury rejected the railroad’s arguments, finding Mr. Giebler only five percent at fault. The jury found the UP 95% at fault after concluding Mr. Tubbs was in the course of his employment since he was arriving to work and traveling on UP private property, and therefore subject to its rules and safety policies. This finding is consistent with the applicable law for the FELA. Mr. Giebler proved economic loss in an amount ranging from $725,000 to $745,000. Over $90,000 in medical care costs were paid by the UP but introduced as evidence of the nature and extent of the injury and disability. The jury awarded $1.5 million, reduced by 5% for Mr. Giebler’s comparative fault, netting Mr. Giebler $1,425,000. Jim K. Vucinovich of RCV tried the case before the Honorable Shelley Gilman in Denver County District Court. James Cox, a partner with RCV, assisted in trial and reported that Mr. Giebler was extremely pleased with the result and his representation. Cris Woodward of RCV was also part of the trial team.

Job-related low back pain was a major concern of Bernardio Ramazzini, the founder of occupational medicine, in the 1600s. Only recently have American railroads recognized these problems, leaving thousands of railroad employees with crippling disabilities. This slow recognition creates significant FELA liability for American rail carriers. The railroad's weak attempt to impose lifting safety rules was a cynical attempt to blame employees for lifting injuries. In Railway Age almost 20 years ago, it was stated: "There simply is no single safe lifting method," and "current knowledge of the mechanics of the low back does not support that time-honored adage, 'lift with your legs.' the result can, in fact, be greater stress" (p. 49-50, Dec. 1987). Cumulative trauma cases are in general, meritorious, but involve complex medical and legal issues. Delay in preserving your FELA claims for these injuries may bar recovery of compensation. In order to protect your FELA rights you should contact experienced designated counsel.

Phil brings to RCV a vast array of experience and has argued complex personal injury cases, including FELA (Federal Employer’s Liability Act) cases, before numerous state and federal courts in Washington, Oregon, Montana, Minnesota and Ohio. Phil has also developed expertise in cases involving cumulative trauma affecting railroad workers. He has successfully tried numerous cases involving this injury (see related article on p. 1), as well as catastrophic injuries in the areas of product liability, medical negligence and highway design. He has represented railroad workers since 1990.

We welcome Phil and Candace to the firm!

Mr. Frohlich began his railroad career in 1968 in Pasco, later moving with his family to Deer Park, Washington, in the mid-1980's. Since then he has worked for the BNSF out of Spokane, Washington.

On January 3, 2003, Mr. Frohlich, with only seconds to react after seeing the boulder, was in the process of activating the train's emergency braking system when the collision occurred, throwing him around the engine.

Mr. Frohlich suffered a shoulder injury which required surgery, as well as neck and low back injuries. These injuries disabled him from returning to work as a conductor.

At trial the railroad denied responsibility, arguing it was an unforeseeable event. Remarkably, the railroad argued that Mr. Frohlich was simply "in the wrong place at the wrong time."

Attorney Jim Vucinovich retained a nationally renowned geologist to explain to the jury why this cliff was so unstable, why the railroad should have known about its instability, and what the railroad should have done in the way of preventative maintenance (slide fence, slope stabilization, wider ditch, more frequent inspections, etc.). The BNSF had no system to address rockfall hazards and had done little line maintenance to prevent rocks from falling on the tracks.

The railroad also argued that Mr. Frohlich was not injured, that he would have retired at age 60 rather than 65, and that he failed to mitigate, or lessen, his damages. During its closing argument, the railroad argued that because Mr. Frohlich was in the "wrong place at the wrong time," he was not entitled to any damages, but that if the jury disagreed, his total damages should not exceed $295,000.

The jury deliberated for just two hours before rejecting all of the railroad's arguments and unanimously awarding Mr. Frohlich $872,000.00.

In the early evening of July 4, 2001, Johnson, a Union Pacific switchman with 28 years of railroad work under his belt, was riding in the cab of an eastbound locomotive as it slowly made its way through a train yard in Los Angeles. Johnson acted as lookout and blew the whistle to let workers in the yard know the train was coming through. His train had just pulled into view of the curved track ahead when he saw a runaway tanker car barreling straight toward him.

The runaway tanker car, loaded with corn syrup and weighing 130 tons, had rolled out of a warehouse and sped through neighborhoods and streets crossings, remarkably injuring no one. The car was traveling nearly 60 mph when Johnson saw it coming. Seconds later it hit the train, and it hit hard, demolishing the lead locomotive, throwing Johnson from his seat, and knocking him unconscious. He came to, bruised and bleeding, and the damage was permanent. Three years later, the pain in his back, hands and ankle is constant. The injury to his shoulder limits the motion of one arm, and he suffers from post-traumatic stress disorder. Johnson and two others injured in the accident remain unable to work.

In addition to reaching a settlement with the Union Pacific Railroad under the Federal Employer's Liability Act (FELA), Jim Vucinovich, on behalf of Johnson, filed a negligence lawsuit against the warehouse company that was in control of the tank car when the accident occurred. The defense argued that when the railroad left the car in the yard earlier that day, they had failed to secure the hand brake properly, or that an unknown, unnamed vandal had released the hand brake. They maintained to the end that the warehouse had no responsibility for the collision.

Johnson's attorney, James Vucinovich, said the warehouse company "did not have any set procedures, training, or supervisory controls over the handling of loaded tank cars, even though it is and has been their business for decades. It is unfortunate in this day and age that corporations continue to do business in ways that are unsafe and irresponsible, and in this case led to an accident that ruined the careers of three railroad workers."

This conduct violates privacy and confidentiality rights under the HIPAA (Health Insurance Portability and Accountability Act). It also gives Railroads direct access to your medical care and the ability to manipulate the outcome, without your involvement. Remember—the nurse case manager does not work for you—their services are contracted by Railroads and they report their findings and recommendations directly to Railroad Claims, Operating, and Medical departments.

• 1) do not sign any medical authorizations,
• 2) seek medical treatment from providers of your own choosing,
• 3) retain copies of any documentation received from the nurse case manager, and
• 4) contact RCV right away for legal advice.

Although van companies are “agents” of the Railroad, the FELA does not automatically apply to these agents unless they bear some liability or fault for the collision. This is problematic if you become injured in a van through no fault of the van driver or a mechanical defect. Many van companies only purchase “liability” insurance on their vans, and opt out of personal injury protection “PIP” and underinsured motorist coverage “UIM.” This exact scenario recently occurred, with injuries to rail employees, in Oregon and Utah.

What does this mean to you? Next time you step into a van, the van is involved in a collision, and you sustain injuries, the van company may not pay for your medical bills and may only carry liability insurance.

What can you do to protect yourself? Call your insurance agent and inquire about your current PIP and UIM policies. Increase your coverage limits and make sure your UIM policy does not contain any work-related exclusions.

Jim’s many years of railroad experience began as a track worker for the Rock Island Railroad while still in high school in Herrington, Kansas. He was hired on as a brakeman in 1963. He also worked as a carman and clerk while furloughed as a brakeman. After the demise of the Rock Island Railroad, Jim began a new career for Burlington Northern as a trainman in Alliance, Nebraska where he was elected Legislative Representative and later elected to two terms as Local Chairman for the United Transportation Union.

Jim’s experience in the various crafts and his work in the union combined with thirteen years working with designated legal counsel, equip Jim with a great understanding of all the problems that injured railroaders and families face today. Jim truly stands ready to help when called.

Jim is a 5th generation railroader. His son Brett is an engineer in Alliance, Nebraska, and the 6th generation railroader, all on one side of the family.

ATTENTION: Jim is interested in hearing from anyone who may have seven generations of railroaders and anyone who has a similar family history! He can be contacted at (970) 203-0099.

Mr. Zahradnicek was represented by Jim Vucinovich of Rossi, Cox & Vucinovich (with offices in Seattle and Denver). The win marks the third in a row for Jim Vucinovich and the RCV firm in the last sixteen months, and is significant since it was against a contract van service company hired by the railroad and involved a soft-tissue, non-surgical injury.

Defendants Union Pacific and Crew Shuttle Service, were represented by a Minnesota attorney. An offer of $125,000 was made before trial, with Defendants contending that the low speed impact of 6-7 mph was insufficient to cause a permanent injury. The defense claimed that Mr. Zahradnicek was not hurt and was able to return to his railroad job. The defense further argued that Mr. Zahradnicek was contributorily negligent, and the jury agreed to an extent, reducing the verdict by 15%. However, the jury rejected the Defendants’ request that Mr. Zahradnicek was entitled to only $50,000 in overall damages, and clearly opted for a much higher award.

The case was tried in Boise, Idaho, before Senior Judge Daniel Meehl. The jury heard four days of evidence before deliberating six hours to reach the verdict. Defendants have agreed to pay the verdict and costs.