A Philadelphia jury has awarded $2.5 million to a former Conrail employee who alleged that his employer violated the Federal Liability Act by failing to provide him a safe workplace.

Bala Cynwyd attorney Michael J. Olley responded the plaintiff in Gawinowicz v. Consolidated Rail Corp. He tried the case before Philadelphia Common Pleas Judge Mark I. Bernstien.

According to Olley’s pretrial memorandum, the underlying accident occurred on Oct. 8, 2001, at the Interstate 95 switch on Conrail’s main train track, in Cornwells heights.

Glen Gawinowicz was 47 years old at the time and had been working for Conrail for 29 years as a trackman, earning about $58,000 per year, the document stated.

At the time of the accident, Gawinowicz was a conductor on a two-man crew.
“In order to place several cars into a sliding track, the plaintiff was required to throw the No. 1 railroad switch enabling the train to go from the main track into the sliding at I-95 at Cornwells Heights,” Olley said in the memo.

“Mr. Gawinowicz operated the switch twice, and the second time that he threw the switch, the switch stopped suddenly, causing him to experience pain in his neck and brachial plexus area.”

The document said the crew then told the Conrail train dispatcher that the switch was difficult to throw and needed maintenance.

Gawinowicz worked the rest of his shift, the document said, although he experienced pain and tightness in his neck and chest. At first, he did not associate the symptoms with the pulling of the switch, thinking he might have the flu, according to this document.

The next day, the memo said, Gawinowicz went to his family doctor still believing that he had the flu. Gawinowicz said the doctor told him he was actually experiencing muscle problems as the result of an acute injury.

Gawinowicz told a Conrail doctor the next day that the defective switch caused his injuries, the document said.

Gawinowicz began receiving chiropractic treatments, and an MRI reveled that he had two disc herniations with impingement. Gawinowicz also claimed that an orthopedic and hand surgeon, Dr. Scott Fried, confirmed a chronic capsular injury and cervical radiculitis.

In his expert testimony, Fried said Gawinowicz is permanently disabled from returning to his previous position as railroad conductor.

Gawinowicz underwent an independent medical exam with Dr. Scott Jaeger and was diagnosed with a traction injury in his right shoulder and double crush/carpal tunnel syndrome. Jaeger also opined that Gawinowicz could not return to his pervious position.

Gawinowicz claimed that Conrail charged him with several rule violations for not reporting his injury promptly and required him to attended an investigative hearing on the jury.

Gawinowicz argued that Conrail violated FELA by not providing him with a reasonably safe place to work and that he switch was defective, or at least improperly maintained.

“The defendant railroad has a non-delegable duty to provide the plaintiff with a reasonably safe place to work, and Conrail’s switch inspection records from two weeks before and two weeks after the accident confirm that he rods and braces on the subject switch were loose and not properly secured and therefore defective,” Olley said in the memo.

The jury deliberated for about an hour and a half before returning the verdict, Olley said.

According to the memo, a vocational expert testified that Gawinowicz has limited education and limited transferable skills.

Olley said Gawinowicz is capably of sedentary work, earning a salary of $27,000 and $29,100 per year.

An economic expert, Dr. Andrew Verzilli, put Gawinowicz’s past and future loss of earnings at $327,000 to $380,000, assuming that Gawinowicz would retire at age 62.

If Gawinowicz were to earn an associate degree, Verzilli said, his loss of earnings would be $244,000 to $264,000.

According to the documents, Gawinowicz requested a settlement of $750,000, and Conrail offered $75,000.

Conrail was represented by Walter L. McDonough of Swartz Campbell & Detweiler. McDonough declined to comment.

The Legal Intelligencer,
Philadelphia, PA,
Tuesday, February 18, 2003
by Danielle N. Rodier, Of the Legal Staff

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