Everett Erickson v. Burlington Northern Railroad Company, a Corporation

2 F.3d 1156 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Everett ERICKSON, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Defendant-Appellee. No. 91-36288. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 14, 1993.* Decided Aug. 4, 1993. Before CANBY, WIGGINS and T.G. NELSON, Circuit Judges. — 1 — MEMORANDUM** — 2 — Although Erickson did not submit a counterstatement of facts, Burlington Northern's statement of agreed facts raises the issue: would a reasonable man have been put on inquiry as to the possible existence of a work-related cause of his hearing loss? This question is posed against the factual background that Erickson had worked in a noisy environment and a few times left the shop because of screeching noises. — 3 — The statute of limitations begins to run when the claimant knows or has reason to know (1) of the injury and (2) its cause. Herrera-Diaz v. United States, 845 F.2d 1534, 1537 (9th Cir.), cert. denied 488 U.S. 924 (1988). All reasonable inferences are to be drawn in Erickson's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). — 4 — Applying these standards, we hold that a reasonable jury could find that Erickson reasonably did not know of a possible job related cause of his hearing loss until 1988, even though he knew of the hearing loss itself as early as 1982 or 1983. The jury could accept Erickson's statement that he attributed the hearing loss to the aging process, although it would not be compelled to do so. Compare Smith v. States Marine Int'l, Inc., 864 F.2d 410 (5th Cir.1989.) — 5 — Although this case presents a close question of fact, it is one a jury should decide. REVERSED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3