Everett Erickson, Plaintiff-appellant, v. Burlington Northern Railroad Company, a Corporation,defendant-appellee, 2 F.3d 1156 (9th Cir. 1993)

MEMORANDUM^** 

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.

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).

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.)

Although this case presents a close question of fact, it is one a jury should decide. REVERSED.