CHARLESTON – A former CSX Transportation conductor should have sued the company over his back injury sooner, the state Supreme Court has ruled.

On Sept. 27, the court ruled for CSX in a lawsuit brought by Gary L. Caudill. The majority opinion, authored by Justice Allen Loughry, affirmed a decision by Mingo County Circuit Court Judge Michael Thornsbury, who is currently suspended after being indicted on charges of civil rights violations.

“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 (Federal Employers Liability Act) claim,” Loughry wrote.

“Consequently, his cause of action was untimely filed under FELA and summary judgment was properly granted in favor of CSXT.”

Caudill was employed by CSX from 1977-2008, during which time he repeatedly complained about the seats on the cabooses and locomotives.

Caudill said the seats offered no support, and when the train hit a rough spot, the force would end up in his back.

Caudill also testified that he had recurrent back pain and first saw a doctor in 1985.

Caudill received treatment for back pain from chiropractors between 2001-2007.

In 2005, he was diagnosed with spondylolysis – a defect of a vertebra. In 2008, a neurosurgeon diagnosed him with spondylolisthesis – displacement of a vertebra.

Caudill filed suit in 2010 against CSX over the 2008 diagnosis, but Thornsbury found that the two conditions were the same.

Loughry wrote in a footnote that Thornsbury was correct because both x-rays showed anterolisthesis, which is also the slipping of a vertebra.

Based on the statute of limitations, Caudill needed to prove his injury occurred after Sept. 16, 2007, the court ruled.

Caudill argued the date which he should have discovered the injury is an issue that should be left to a jury to decide and that granting summary judgment was improper.

“Thus, even if we were to agree with Mr. Caudill’s contention that he sued for spondylolisthesis, which was not diagnosed until 2008, the fact remains that he experienced back pain as far as back as 1985 and began receiving chiropractic treatment for his back pain in 2001,” Loughry wrote.

“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 experiencing back pain, he complained numerous times to railroad officials, trainmasters and union officials about the seats on the locomotives.”

Representing Caudill was Richard N. Shapiro of Shapiro, Lewis, Appleton & Favaloro in Virginia Beach, Va. Representing CSX were J. David Bolen and Todd R. Meadows of Huddleston Bolen in Huntington.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

More News