*The Honorable James G. Carr, United States District Judge for theNorthern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0004P (6th Cir.)File Name: 00a0004p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________MARKS.MOUNTS,Plaintiff-Appellant,v.GRANDTRUNKWESTERNRAILROAD,Defendant-Appellee.;>1No. 99-3151Appeal from the United States District Courtfor the Southern District of Ohio at Columbus.No. 98-00036—Joseph P. Kinneary, District Judge.Argued: December 6, 1999Decided and Filed: January 5, 2000Before: COLE and GILMAN, Circuit Judges; CARR,District Judge.*2Mounts v. Grand Trunk Western R.R.No. 99-3151_________________COUNSELARGUED:Paul Kevin Hemmer, CARROLL, UCKER &HEMMER, Columbus, Ohio, for Appellant. Julie L.Atchison, PORTER, WRIGHT, MORRIS & ARTHUR,Columbus, Ohio, for Appellee.ON BRIEF:Paul KevinHemmer, CARROLL, UCKER & HEMMER, Columbus,Ohio, for Appellant. Julie L. Atchison, Patrick Jerome Smith,PORTER, WRIGHT, MORRIS & ARTHUR, Columbus,Ohio, for Appellee._________________OPINION_________________R. GUY COLE, JR., Circuit Judge. The sole issue onappeal is whether Mark S. Mounts, a lifetime railroademployee who can no longer hold his job because of hearingloss, filed suit against his former employer within the threeyear statute of limitations of the Federal Employers’ LiabilityAct (“FELA”), 45 U.S.C. § 51 et seq. We find that he didnot, and therefore AFFIRM the district court’s grant ofsummary judgment for the defendant employer, Grand TrunkWestern Railroad.I.Mounts is a 51-year-old man who has been a railroademployee all his career. After working as a brakeman for theNew York Central Railroad for ten years, Mounts beganworking for Grand Trunk Western (“GTW”) in March 1978.During his employment with GTW, which was primarilybased in Ohio, he was exposed to a variety of loud noises inconnection with his work, such as noises from brake exhaust,radios, yard retarders, and whistles. Mounts attributes hissubsequent hearing loss to these noises on his job sites.No. 99-3151Mounts v. Grand Trunk Western R.R.11occur within the statutory period);Flynt v. Brownfield,Bowen, & Bally, 882 F.2d 1048, 1052 (6th Cir. 1989)(discussing Ohio cases that apply doctrine to suits againstattorneys), there has been no indication that it applies toFELA claims. In fact, inKichline, which Mounts urges us tofollow, the Third Circuit rejected the continuing tort theory.See Kichline, 800 F.2d 356, 360 (3d Cir. 1986) (limitingFowkes v. Pennsylvania R.R., 264 F.2d 397 (3d Cir. 1959),which arguably applied the doctrine);see also NationalRailroad Passenger Corp. v. Krouse, 627 A.2d 489 (D.C.App. 1993) (reversing lower court’s finding that the FELAcause of action did not accrue until the employer’s tortiousaction ended and citing, at 495 n.9, federal district court casesrejecting this approach). We decline to apply the continuingtort doctrine to this case, because Mounts clearly knew of hisinjury and its cause long before filing suit and failed toproduce evidence of a new or separate injury caused by thealleged continuing conduct of GTW.CONCLUSIONIn sum, the FELA statute of limitations has run and nogenuine issue of material fact exists as to whether Mounts’scause of action accrued before this period. Therefore, weAFFIRM the district court’s grant of summary judgment fordefendant GTW.10Mounts v. Grand Trunk Western R.R.No. 99-3151governing malpractice claim under Federal Tort Claims Actbegins to run when claimant discovers or should have discoveredthe acts constituting the alleged wrong),cert. denied, 454 U.S.967 (1981);Herm v. Stafford, 663 F.2d 669, 682 (6th Cir. 1981)(statute in securities fraud case begins to run when the fraudshould have been discovered);Ott v. Midland-Ross Corp., 600F.2d 24, 27 (6th Cir. 1979) (Age Discrimination in EmploymentAct claim accrues within a reasonable time after plaintiff shouldhave discovered injury);N.L.R.B. v. Allied Products Corp., 548F.2d644, 650 (6th Cir.1977) (“general rule” is that statutebegins to run when claimant discovers or should have discoveredthe unfair labor practice).Mounts’s attempts to distinguishAparacioin order toobtain relief for the worsening of his condition that occurredwithin the three years prior to filing suit are unavailing.Although factual differences exist between this case andAparicio, the application of the discovery rule does not hingeon the distinction of whether or not the employee withheldinformation of his injury from the employer, nor does it relyon the employer’s knowledge or lack of knowledge of theinjury.Cf. Kubrick, 444 U.S. at 122-23 (stating that the goalof the discovery rule is to encourage an employee to informhimself about his condition and bring claims promptly). Wealso note that a holding that circumvents the discovery rulewhen the employer knows of the employee’s condition mightcreate unfortunate incentives for employers not to “find out”about employee illnesses through regular testing.Nor does Mounts have a viable claim for a continuing tortunder FELA. The continuing tort doctrine can be viewed asan exception to the discovery rule,see Dixon v. Anderson,928 F.2d 212, 216 (6th Cir. 1991) (calling continuousviolations an exception in the discrimination context), or analternative to the discovery rule. Although continuing tort hasbeen recognized by our circuit in other contexts,seeAlexander v. Local 496, Laborers’ Int’l Union, 177 F.3d 394,408 (6th Cir. 1999) (stating that, in the Title VII context,longstanding and demonstrable discrimination can allow acourt to examine discriminatory acts that occur even outsideof the statute of limitations, as long as some of these actsNo. 99-3151Mounts v. Grand Trunk Western R.R.3GTW began to conduct regular hearing tests of itsemployees in the late 1980s. In 1989, Mounts wasadministered a hearing test, after which he was told that hehad a hearing loss. At a follow-up test in April 1990, thedoctor’s notes state that Mounts said he was having difficultyhearing communications at work and that his hearing haddecreased over a period of time. Mounts was directed toundergo more extensive testing in Detroit, and testing by adifferent doctor in Ohio. The second Ohio doctor, Morris,discussed the results of the test with Mounts and discussed thepossibility of a hearing aid. (GTW later refused to pay for ahearing aid after Mounts ordered one; a railroad official statedthat he did not need one.) Mounts was out of work for fiveand a half weeks because of this hearing testing.In July 1990, Mounts settled a hearing loss claim withGTW for $7,700 and signed a waiver of claims against therailroad. Mounts states that he was told by GTW’s claimagent, Blackstone, that in order to receive his wages for thetime off, he had to sign the waiver. The amount of money hereceived was marginally more than his back pay. Mounts alsostates that Blackstone told him that his hearing loss wasminimal. Mounts did not take a physical or hearing testbefore returning to work.In 1993, after a company audiogram showed hearing loss,Mounts was again directed to Detroit for a hearing test. Thetest, conducted in November 1993, showed a moderate lossfor speech and severe loss for high pitched sounds in bothears. The doctor’s report states that Mounts told him theconditions at work were noisy.From about 1990, when GTW supervisors told him to wearear plugs, until the time he ceased employment with GTW,Mounts wore hearing protection when he could. He said thatsometimes the protection would prohibit him from hearingwell enough to do his job, so he would remove it. Otherwise,though, he wore the protection that GTW gave him. Mountswas not told by GTW at any point that he had job restrictions.4Mounts v. Grand Trunk Western R.R.No. 99-3151In May 1994, Mounts went on medical leave as a result ofa seizure (unrelated to his hearing claim). He returned to hisposition in April 1995, with a medical clearance and withoutany work restrictions.GTW conducted another test of Mounts’s hearing in 1996,which showed poorer hearing. On May 28, 1997, Mountswas removed from service with GTW because of his hearingimpairment. He was referred by his personal physician to aspecialist, who opined that Mounts is permanently disabledfrom his railroad work. GTW told Mounts to apply for apermanent disability annuity from the Railroad RetirementBoard.On January 8, 1998, Mounts sued GTW in district courtunder the FELA, 45 U.S.C. § 51, for: 1) negligence; and 2)maintaining improper and unsafe equipment in violation ofthe Boiler Inspection Act, 45 U.S.C. § 22 et seq. (1994). Incount three of his amended complaint, Mounts alleged fraudin the signing of the 1990 waiver, or in the alternative, mutualmistake.GTW filed for summary judgment based on the three-yearFELA statute of limitations.See45 U.S.C. § 56. The districtcourt dismissed all three counts; granting summary judgmentbased on the statute of limitations on the first two counts, anddismissing the third count for failure to state a claim becauseit was dependent on the success of the underlying FELAclaims. Mounts appeals.II.We review the grant of a motion for summary judgmentunder ade novostandard.See Babbitt v. Norfolk & W. Ry.Co., 104 F.3d 89, 90 (6th Cir. 1997). Summary judgment isappropriate “if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to ajudgment as a matter of law.” Fed. R. Civ. P. 56(c). Indeciding the motion, a court must view the evidence and drawNo. 99-3151Mounts v. Grand Trunk Western R.R.93In addition, the discovery rule has also been applied to a range ofother federal statutes. SeeMichigan United Food & CommercialWorkers Unions v. Muir Co., 992 F.2d 594, 597-98 (6th Cir. 1993), whichstated:There is good reason for us now to adopt and apply thediscovery rule in this ERISA case because we have frequentlydone so in other contexts.Dixon v. Anderson, 928 F.2d 212, 215(6th Cir. 1991) (42 U.S.C. § 1983 claim accrues “when theplaintiff knows or has reason to know of the injury”);Friedmanv. Estate of Presser, 929 F.2d 1151, 1159 (6th Cir.1991)(plaintiff in Bivens action has reason to knowof his injury whenhe should have discovered it);Hofstetter v. Fletcher, 905 F.2d897, 904 (6th Cir.1988) (RICO actionaccrues when plaintiffknew or should have known of defendant's fraudulent scheme);Au Rustproofing Center, Inc. v. Gulf Oil Corp., 755 F.2d 1231,1237 (6th Cir. 1985) (state fraud action accrues when the fraudwas or should have been discovered);Shapiro v. Cook United,Inc., 762 F.2d 49, 51 (6th Cir. 1985) (per curiam) (statute beginsto run when claimant discovers or should have discoveredviolations of National Labor Relations Act);Modin v. New YorkCent. Co., 650 F.2d 829, 834 (6th Cir.) (statute of limitationsa severable cause of action under Federal Employers’Liability Act.”Aparicio, 84 F.3d at 815. Instead, we adoptedthe rationale set out inFries v. Chicago & NorthwesternTransp. Co., 909 F.2d 1092 (7th Cir. 1990), as the rule of thiscircuit.See Aparicio, 84 F.3d at 815. InFries, a railroadworker with hearing loss acknowledged that he noticed theloss as early as 1980 or 1981, and soon after suspected it wascaused by his job, but did not seek treatment until 1985. TheSeventh Circuit rejected Fries’s suit, filed in November 1987.See Fries, 909 F.2d 1092.Friesexplicitly stated that a causeof action could accrue before the injury reached its maximumseverity.See id.at 1096. In other words, in this circuit, anemployee who discovers an injury and its cause before thethree-year statute of limitations period is precluded from laterbringing suit against his employer based on that injury.Seeid.;see also Albert v. Maine Cent. R.R. Co., 905 F.2d 541 (1stCir. 1990) (finding the five plaintiffs’ claims barred by thestatute of limitations when they knew of their hearing loss andattributed it to their railroad work more than three yearsbefore filing suit).38Mounts v. Grand Trunk Western R.R.No. 99-31512The court, however, rejected Kichline’s argument that the cause ofaction did not accrue until his retirement when the harmful exposure todiesel fuel, which allegedly caused his pulmonary disease, ceased.See id.a separate injury, not a continuation of the prior injury.Seeid.at 815. We asserted that if the injury had been acontinuation, it would be barred by the statute of limitations.See id.Mounts has not brought forth evidence that a separateinjury or disease occurred within the three-year statute oflimitations. Mounts argues that a question of fact exists as towhether the change in his situation -- from being able to dohis job when he returned to work in 1995 to being disabledfrom his job in 1997 -- constitutes a separable tort. However,he has not submitted affidavits or other evidence frommedical professionals indicating that the hearing loss sufferedover the past few years is a separate injury. In response toGTW’s motion for summary judgment, he submitted anaffidavit from Dr. Victor VerMeulen, which briefly describesMounts’s hearing loss and opines that the loss is caused by hisemployment at GTW and that Mounts is “permanentlymedically disqualified from returning to his position on therailroad.”We decline to follow Mounts’s suggestion that this courtcan and should adopt the rationale and holding ofKichline v.Consolidated Rail Corp., 800 F.2d 356 (3d Cir. 1986). InKichline, the Third Circuit permitted the employee to proceedon his claim for aggravation of an injury during the threeyears prior to filing suit.See id.at 356. “The fact thatplaintiff was aware of the harmful effects of his exposure topollutants would go to his contributory negligence under thecircumstances but might not bar his claim for aggravationduring that period.”Id.at 361. The Third Circuit placed theresponsibility for establishing the extent of the injury thatoccurred during this period on the plaintiff.See id.2InAparicio, however, this court explicitly “disagree[d] withthe Third Circuit that the aggravation of an original injury isNo. 99-3151Mounts v. Grand Trunk Western R.R.5all reasonable inferences in favor of the nonmoving party.See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475U.S. 574, 587 (1986). The moving party bears the initialburden of demonstrating the absence of a genuine issue ofmaterial fact.See Celotex Corp. v. Catrett, 477 U.S. 317(1986). If the moving party shows this absence, thenonmoving party must come forward with specific factsshowing that there is a genuine issue for trial.SeeMatsushita, 475 U.S. at 587. To meet this burden, thenonmoving party may not rest on the mere allegations in thepleadings.SeeFed. R. Civ. P. 56(e);Celotex, 477 U.S. at324.III.FELA is “a remedial and humanitarian statute . . . enactedby Congress to afford relief to employees from injury incurredin the railway industry.”Edsall v. Penn Cent. Transp. Co.,479 F.2d 33, 35 (6th Cir. 1973);see also45 U.S.C. § 51(establishing employer liability); 45 U.S.C. § 54 (abolishingthe assumption of risk defense as a matter of law). The FELAstatute of limitations, 45 U.S.C. § 56, provides in part: “Noaction shall be maintained under this chapter unlesscommenced within three years from the day the cause ofaction accrued.”The Supreme Court, in the course of determining whethera plaintiff’s claim for silicosis was barred by the statute oflimitations, examined what “accrual” means in the FELAstatute of limitations.See Urie v. Thompson, 337 U.S. 163(1949). The Court rejected the approach that “each intake ofdusty breath” is a new cause of action, as well as the otherextreme, a rule that the employee should have filed as soon ashe contracted the disease, before he even had any symptoms;stating that a rule which held an employee responsible forknowledge of the disease “at some past moment in time,unknown and inherently unknowable even in retrospect”would frustrate Congress’s purpose in enacting FELA.Id.at169. Instead, “‘the afflicted employee can be held to be“injured” only when the accumulated effects of the6Mounts v. Grand Trunk Western R.R.No. 99-31511InKubrick, the Court stated:We are unconvinced that for statute of limitations purposes aplaintiff’s ignorance of his legal rights and his ignorance of thefact of his injury or its cause should receive identical treatment.That he has been injured in fact may be unknown or unknowableuntil the injury manifests itself; and the facts about causationmay be in the control of the putative defendant, unavailable tothe plaintiff or at least very difficult to obtain. The prospect isnot so bleak for a plaintiff in possession of the critical facts thathe has been hurt and who has inflicted the injury. He is nolonger at the mercy of the latter. There are others who can tellhim if he has been wronged, and he need only ask.Id. at 122.deleterious substance manifest themselves.’”Id.at 170(quotingAssociated Indem. Corp. v. Industrial AccidentComm’n, 12 P.2d 1075, 1076 (Cal. App. 1932)). The Courtlater solidified what has become known as the discovery rule,finding that a cause of action “accrues” when an employeeknows of the injury and its cause.See United States v.Kubrick, 444 U.S. 111, 123-24 (1979) (distinguishing, in aFederal Tort Claims Act case, discovery of the fact of theinjury from discovery of legal liability).1Mounts argues against a statute of limitations bar under twoapproaches. First, Mounts asserts that the claim is not timebarred because the aggravation of his hearing loss constitutesa separate injury and that the exposure at his GTW jobconstitutes a separate tort for FELA purposes; or at least thata question of facts exists on this point. As proof, Mountsasserts that he returned to work in 1995 fully qualified andthat, after exposure to noise at work, he was terminated in1997 because of his hearing loss. Second, Mounts argues thathis claim is not time-barred for the injury that occurred duringthe three years prior to filing suit, irrespective of whether thatinjury is considered a new injury, aggravation of an old injury,or the result of a separate tort. In other words, no matter whatthe court calls his worsened hearing, Mounts asserts that heshould be able to recover for damage to his hearing thatoccurred within the three-year statute of limitations period.No. 99-3151Mounts v. Grand Trunk Western R.R.7Both of these approaches fail under this circuit’s precedent,which requires Mounts to establish a separate injury, therebysatisfying the three-year statute of limitations, before the courtmay conduct an examination of liability. This circuit hasinterpreted the discovery rule to bar FELA claims from beingbrought more than three years after the initial injury and itscause were discovered.See Aparicio v. Norfolk W. Ry. Co.,84 F.3d 803, 814-15 (6th Cir. 1996). At the latest, Mountsknew of his hearing loss and its cause in 1993, when hishearing was tested and determined to be deficient; a lossMounts himself attributed to his employment.The discovery rule applies even if the injury was laterworsened by the same employer:Any “aggravation” of the original negligently causedinjury would only affect the plaintiff’s damages, andwould not require a separate determination of liability orcausation. Furthermore, a rule permitting severability ofa claim that an original, continuing injury has beenaggravated would contravene the purpose of thediscovery rule articulated inUrierequiring FederalEmployers’ Liability Act plaintiffs to use reasonablediligence to discover the cause of an injury once theinjury manifests itself.Id.at 815.InAparicio, the employee alleged that the railroadnegligently caused his carpal tunnel syndrome andepicondylitis. Beginning in 1987, Aparicio began to havenumbness and tingling in his right hand. These problems,however, resolved themselves with minimal treatment forapproximately five years.See id.at 805-06. In 1992,Aparicio again sought treatment for pain in his hands andwrists, was diagnosed with carpal tunnel syndrome, and wasoperated on.Id.at 806. In 1993, Aparicio was diagnosedwith tennis elbow and could not return to his job. We upheldthe district court’s finding that a material issue of fact wascreated by Aparicio’s submission of an affidavit of aphysician who stated that his later (1992 and 1993) injury was