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Berlen v. Consolidated Rail Corp.

June 25, 1996

NICHOLAS A. BERLEN, PLAINTIFF-APPELLANT,
v.
CONSOLIDATED RAIL CORPORATION, A CORPORATION OF THE STATE OF PENNSYLVANIA AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from Superior Court, Law Division, Hudson County.

Approved for Publication June 25, 1996.

Before Judges Skillman and Eichen. The opinion of the court was delivered by Eichen, J.A.D.

The opinion of the court was delivered by: Eichen

The opinion of the court was delivered by EICHEN, J.A.D.

Plaintiff appeals a summary judgment in favor of defendant in a Federal Employers' Liability Act case, 45 U.S.C.A. §§ 51 to 60 (FELA). Plaintiff contends that the Law Division Judge erred in concluding as a matter of law that his claims under the FELA were time-barred by the three-year statute of limitations provision in the FELA, 45 U.S.C.A. § 56. We agree and reverse the dismissal of plaintiff's FELA complaint.

Plaintiff was employed by defendant Consolidated Rail Corporation (Conrail) commencing in 1973. *fn1 Plaintiff filed a complaint against Conrail under the FELA alleging that he had been unreasonably exposed during his employment to deleterious conditions consisting of excessively high and dangerous noise levels which caused a permanent and disabling loss of hearing in both ears.

Because this is an appeal of a summary judgment, we must scrutinize the record in a light most favorable to plaintiff. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Brill v. Guardian Life, 142 N.J. 520, 540, 666 A.2d 146 (1995).

The record reflects plaintiff began to experience periodic ringing in his ears and trouble hearing in or about March 1986. At that time, plaintiff's treating physician, Dr. Carlos J. Gomez, M.D., treated plaintiff for a temporal lipoma, prescribing headache medication, and diagnosed "normal hearing with drop [at] high frequency," concluding that plaintiff's hearing symptoms were "probably due to exposure to loud noises." In February 1987, plaintiff returned to Dr. Gomez complaining of light-headedness and ringing in his ears. Following an ear examination, Dr. Gomez reported "external canal and tympanic membrane normal with adequate hearing," diagnosed a "possible viral" condition and prescribed an antibiotic.

On April 27, 1987, Conrail Health Services examined plaintiff's hearing. In completing a questionnaire about his health, plaintiff marked "yes" when asked if he had "noises in his ears" and when asked if he "now [had] difficulty hearing." He also stated he had ringing in his ears which he believed was "due to job." However, he attributed to his job only the ringing and not his hearing difficulty.

Conrail Health Services informed plaintiff by letter dated January 12, 1988 of the results of his examination:

Your hearing in the right ear is satisfactory for hearing and understanding conversation. Your hearing in the left ear indicates that in some situations you may have difficulty hearing or understanding conversation with this ear. You will be notified when the next hearing check is due. If you are wearing hearing protection while working, you should continue to do so. You should also contact your supervisor to determine if you are correctly wearing the proper protection. (emphasis added)

On November 20, 1989, Conrail Health Services again examined plaintiff, and he again responded affirmatively to the questionnaire that he had "noises in his ears" and "now [had] difficulty hearing." This time, however, Conrail Health Services informed plaintiff by letter dated December 14, 1989, that the results of his hearing examination were satisfactory:

Your hearing in both ears is satisfactory for hearing and understanding conversation. There has been no change in hearing in your right ear since the last check. The previous change in your left ear is no longer present. You will be notified when the next hearing check is due. If you are wearing hearing protection while working, you should continue to do so. You should also contact your supervisor to determine if you are correctly wearing the proper protection. (emphasis added)

On January 19, 1991, Conrail again checked plaintiff's hearing. This time Conrail reported that

for high-pitched sounds... the hearing test results indicate that your left ear shows a severe hearing loss and your right ear shows a moderate hearing loss [and] for common sounds such as voices and most everyday sounds, the hearing test results indicate that your left ear shows a mild ...


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