Weeks Marine, Inc. v. Watson
Filing
55
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Judge Carl Barbier on 5/27/16.(Reference: 15-600 c/w 15-611)(sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WEEKS MARINE, INC.
CIVIL ACTION
VERSUS
NO: 15-600 c/w 15-611
APPLIES TO ALL
RODNEY WATSON
SECTION: “J”(2)
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial before the Court, sitting in
admiralty without a jury, on May 16 and 17, 2016. Having considered
the testimony and exhibits introduced at trial and applicable law,
the Court issues the following findings of fact and conclusions of
law in accordance with Federal Rule of Civil Procedure 52(a).
This
case
arises
out
of
an
accident
which
occurred
on
September 24, 2014 aboard the ocean going dredge B.E. LINDHOLM.
Rodney Watson, the vessel’s cook, alleges he was injured when he
was struck by a large steel steam table that toppled over in the
galley in rough seas. Watson also claims punitive damages and
attorney’s fees due to the willful failure of his employer, Weeks
Marine, Inc., to pay maintenance and cure.
On
for
February
Declaratory
declaring
that
26,
2015,
Weeks
Judgment against
Weeks
was
not
Marine
Watson
obligated
filed
seeking
to
a
a
Complaint
judgment
make maintenance
and cure payments beyond January 15, 2015. Watson then filed a
Complaint for Damages alleging negligence under the Jones Act, 46
1
U.S.C. § 30104, et seq., the unseaworthiness of the B.E. LINDHOLM,
as well as compensatory and punitive damages for Weeks’ willful
failure to pay maintenance and cure. The two complaints were
consolidated for a bench trial. For purposes of simplicity, Rodney
Watson will be referred to as the “plaintiff” and Weeks Marine,
Inc. as the “defendant.”
FINDINGS OF FACT
1.
Weeks owned and operated the dredging vessel B.E. LINDHOLM
and employed Watson as an unlicensed mariner and cook aboard the
vessel. As an unlicensed mariner and cook, Watson had no training
or responsibility for deck work or vessel equipment inspections.
Weeks considered Watson a competent cook who received consistent
favorable
job
performance
evaluations
and
several
pay
raises
during his four years with the company.
2.
On the morning of September 24, 2014, the B.E. LINDHOLM was
underway, sailing from Norfolk, Virginia to Charleston, South
Carolina in the Atlantic Ocean. The vessel was operating on one of
two engines, which made the vessel more difficult to maneuver and
operate in heavy seas. Captain William Hambrecht was aware of the
engine problem and an approaching storm front before the voyage
but decided to depart nonetheless. Anticipating rough seas, the
Captain ordered the crew to secure gear on the deck and instructed
2
Watson to secure loose items in the galley such as cups, dishes
and cookware.
3.
On the morning of September 24, 2014, Watson was in the galley
preparing a meal for the vessel crew. Seas were reported to be
anywhere from 6 to 10 feet. These weather conditions, although
rough, were not anything beyond which the vessel expected to
encounter and within its capacity to handle. As Watson turned away
from the steam table to continue meal preparation, a large wave
caused the vessel to roll, and the 400 pound stainless steel table
suddenly toppled over, striking Watson on his left hip and leg and
causing him to strike his head on the adjacent galley bulkhead.
4.
The steam table in question had been aboard the B.E. LINDHOLM
since at least 1986. The manufacturer’s literature provides no
instruction, nor did it provide equipment to secure the table in
place when used aboard a vessel. It had never toppled over before
this incident.
5.
Years earlier, a Weeks employee had secured the table in place
with two threaded tube shaped fittings. A bolt extended inside of
each tube. Loosening the bolt caused the fitting to lengthen and
placed downward pressure on the steam table and upward pressure on
the underside of an adjacent serving counter. The bolts required
3
proper adjustment to be as tight as possible in order to provide
sufficient force to secure the table in place. The table was not
bolted or welded to the serving counter, adjacent bulkhead or the
galley deck, although Weeks admits it was feasible to do so.
Further, Weeks had no policy or practice requiring the vessel
captain or crew to periodically check the bolts to maintain
proper tension.
6.
Following
the
incident,
Watson
remained
aboard
the
B.E.
LINDHOLM for three days until she reached port in Charleston, South
Carolina. On September 27, 2014, Captain Hambrecht took Watson to
Dr. Jeffery Herman of MedCare Express North Charleston, where
Watson complained of left hip and knee pain. Watson was given pain
medicine and crutches.
7.
On October 2, 2014, Watson was evaluated by Dr. George Pappas
of South Carolina Sports Medicine and Orthopedic Center. Watson
repeated his complaints of left leg and knee pain. Dr. Pappas
examined
Watson
and
ordered
an
MRI
of
Watson’s
left
leg
to
investigate possible left knee ligament or meniscus damage. Weeks
refused to authorize or pay for this diagnostic test.
8.
Watson returned home to Louisiana and began treating with
board certified orthopedic surgeon Dr. Roch Hontas on October 16,
4
2014. Watson complained of left knee and leg pain as well as
tingling and numbness in his left foot. Hontas noted a decreased
strength in Watson’s left foot flexion and possible sciatic nerve
injury in addition to a left knee injury. He prescribed physical
therapy and a return visit.
9.
Watson followed up with Dr. Hontas on November 6, 2014,
complaining of pain, numbness and tingling in the left leg, knee,
ankle, and foot and a popping sensation in the left knee. Hontas
found decreased sensation on the top of the foot and continued
left foot flexion weakness. He ordered continued physical therapy,
an MRI of the left knee and a left lower extremity nerve conduction
study. Weeks approved the nerve conduction study but again refused
to pay for the MRI. The nerve conduction study was reported as
normal.
10.
Watson returned to Dr. Hontas on December 19, 2014 and January
9, 2015 with ongoing complaints of left knee pain and numbness and
a burning sensation in his left leg. Weeks scheduled an Independent
Medical Examination (IME) with Dr. Gordon Nutik on January 15,
2015. Dr. Nutik opined that there were no objective findings, no
need for additional medical treatment and found Watson to be at
maximum medical improvement (MMI).
5
11.
Weeks terminated Watson’s maintenance and cure benefits on
the basis of the January 15, 2015 report from Dr. Nutik. When
Watson returned to Dr. Hontas for his next scheduled examination,
he was told by a nurse that Weeks had refused to pay for any
additional treatment by Dr. Hontas. Dr. Hontas never found Watson
to be at MMI and never released Watson to return to work. Weeks
contacted Watson and told him to report back to the B.E. LINDHOLM
to resume his chief cook duties. When Watson refused due to his
ongoing physical symptoms, Weeks fired him.
12.
Watson then retained an attorney who referred Watson to board
certified orthopedic surgeon Dr. Kenneth Berliner in Houston,
Texas on February 10, 2015. Watson complained of cervical spine,
lumbar spine and left knee pain as well as headaches. Various MRI
studies of the same date revealed a possible torn left knee
meniscus and multilevel disc abnormalities in Watson’s cervical
and lumbar spine, including a four millimeter herniation at the
L4-5
level.
After
three
months
of
physical
therapy,
Watson
underwent epidural steroid injections to his cervical and lumbar
spine on May 27, 2015, followed by additional physical therapy.
13.
At Weeks’ request, Watson returned to Dr. Nutik on June 15,
2015. Dr. Nutik reported that Watson should have reached MMI but
6
that he could not say whether Watson was physically capable of
returning to work as a cook. Dr. Nutik ordered and Weeks paid for
the same left knee MRI previously requested by treating orthopedic
surgeons Pappas and Hontas but rejected by Weeks. This MRI was
reported as normal.
14.
On
July
30,
2015,
a
second
nerve
conduction
study
was
performed at Dr. Berliner’s request. The test showed mild active
left L5 radiculopathy suggestive of an acute to sub-acute process.
Dr. Berliner suspected that the radiculopathy was caused by a facet
joint
injury
or
the
four
millimeter
L4-5
disc
herniation
demonstrated on the MRI.
15.
On January 13, 2016, following more physical therapy, Watson
underwent a L4-5 medial-branch nerve block that provided temporary
relief from the radiating pain, tingling and numbness in his left
leg and foot.
16.
Watson’s last visit to Dr. Berliner occurred on March 17,
2016, at which time a CT Myelogram of the cervical spine was
performed. Based on the results of that diagnostic testing, Dr.
Berliner recommended a two level cervical disc fusion at C4-5 and
C5-6. The doctor also diagnosed possible internal derangement to
Watson’s left knee, for which he recommends a left knee arthroscopy
7
due to the inconsistent MRI results, and a possible left knee
meniscectomy. Due to Watson’s disc herniation at L2-3, facet
strain/nerve injury at L4-5, Dr. Berliner also recommended a
Radiofrequency
neurotomy
procedure
and
continued
observation.
Dr. Berliner relates the need for the recommended additional
treatment and surgery to the September 24, 2014 vessel incident.
17.
Weeks has not paid any medical bills since January 15, 2015,
other than charges from Dr. Nutik. None of Dr. Berliner’s bills or
related bills for treatment ordered by Dr. Berliner have been paid.
Unpaid medical expenses total $56,582.00. The parties stipulated
that accrued maintenance, if owed, is payable at $20.00 per day
and totals $9,340.00 as of May 17, 2016.
CONCLUSIONS OF LAW
1.
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1333, which provides original jurisdiction over admiralty
or maritime claims, and the Jones Act, 46 U.S.C. § 30104. Venue is
proper
because
the
defendants
are
subject
to
the
personal
jurisdiction of this Court.
2.
The matters before this Court include determination as to
whether Weeks was negligent, whether the vessel was unseaworthy,
whether such negligence and/or unseaworthiness caused injury to
8
Watson, the extent of any such injuries and, finally, whether Weeks
was arbitrary in its handling of Watson’s maintenance and cure
claim, thereby entitling Watson to punitive damages and attorneys’
fees.
3.
A seaman is entitled to recovery under the Jones Act . . .
if his employer’s negligence is the cause, in whole or part, of
his injury. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335
(5th Cir. 1997). An employer has the duty to provide a seaman
employee with a reasonably safe place to work, which includes
inspecting the vessel for hazards, providing gear tools sufficient
to perform his assigned vessel duties, and training him on how to
safely
perform
assigned
vessel
chores.
Johnson
v.
Offshore
Express, 845 F.2d 1347, 1353 (5th Cir. 1988); Nichols v. Weeks
Marine, Inc., 513 F. Supp. 2d 627, 636 (E.D. La. 2007). The cause
of action under the Jones Act arises when one of the duties is
breached and the employer’s breach of duty plays a role, however
slight,
in
causing
the
seaman’s
injury.
Landry
v.
Oceanic
Contractors, Inc., 731 F.2d 299, 302 (5th Cir. 1984). The causation
burden of proof is “featherweight.” Gavagan v. United States, 955
F.2d 1016, 1019 (5th Cir. 1992).
4.
The owner of a vessel to which a Jones Act seaman is assigned
or working at the time of his injury owes the duty of furnishing
9
the seaman with a seaworthy vessel. The vessel, its crew, and its
appurtenances must be reasonably fit for their intended purpose to
be seaworthy. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550
(1960). Unlike the Jones Act, there is no knowledge requirement
for a duty breach. Lack of knowledge or opportunity to correct the
condition giving use to unseaworthiness does not mitigate the
owner’s absolute duty. Id. at 549. A vessel is unseaworthy if the
injured seaman proves that the vessel owner failed to provide a
vessel, including her equipment and crew, which is reasonably fit
for the purposes for which it is to be used. Jackson v. HUII Corp.,
245 F.3d 525, 527 (5th Cir. 1992). The seaman must only prove that
an
unseaworthy
condition
existed
that
proximately
caused
his
injuries. Phillips v. Western Co. of America, 953 F.2d 923, 928
(5th Cir. 1992). The vessel owner is essentially dealing with a
species of strict liability in an unseaworthiness action, as the
owner’s knowledge or exercise of reasonable care is irrelevant in
the seaworthiness context. Id.
5.
To recover damages from an unseaworthy condition, Watson is
required to establish a causal connection between his injury and
the breach of duty that rendered the vessel unseaworthy. Id.;
Rogers v. Eagle Offshore Drilling Serv., 764 F.2d 300, 304 (5th
Cir. 1985). Watson must prove that “the unseaworthy condition
played a substantial part in causing the injury and that the injury
10
was either a direct result or a reasonably probable consequence of
the unseaworthiness.” Johnson, 845 F.2d at 1354.
6.
At the conclusion of the bench trial on May 17, 2016, the
Court dictated oral findings and conclusions on the liability
issues in this case. [See attached excerpts from trial transcript].
The Court will not repeat those oral reasons here, except to state
that
it
found
that
Weeks
was
negligent
and
its
vessel
was
unseaworthy. Further, there was no comparative negligence on the
part of Watson.
7.
Watson was an able bodied and competent chief cook who
received high marks for his work throughout his employment with
Weeks. There is no evidence of a prior physical inability to
perform his duties, nor does the medical evidence reveal any prior
injury, treatment, or physical disability. Since the incident,
Watson has consistently complained of left leg and left knee pain
and symptoms that did not exist before the incident and are
consistent with possible knee joint and lumbar nerve traumatic
injuries.
Both
Dr.
Hontas
and
Dr.
Berliner,
the
treating
physicians, relate these symptoms to September 2014 accident. Dr.
Berliner also relates Watson’s cervical disc injuries and symptoms
to the incident. Weeks’ negligence and the unseaworthiness of the
11
B.E. LINDHOLM proximately caused Watson’s injuries and resulting
damages.
8.
Under the Jones Act and the general maritime law, an injured
seaman is entitled to recover for past loss of wages, future loss
of earning capacity, unpaid medical expenses, and future medical
expenses, as well as pain and suffering resulting from an injury
caused by negligence and/or unseaworthiness. Nichols, 513 F. Supp.
2d at 636. Watson was 46 years old and earned approximately
$55,510.00 per year. According to the economist’s report, from
date of accident through date of trial, Watson’s past wage loss
after taxes is $48,906.00. See Culver v. Slater Boat Co., 722 F.2d
114, 117 (5th Cir. 1983) (en banc). Watson’s future loss of
earnings after commuting to present value is $696,038.00, assuming
withdrawal
from
the
workforce
at
age
59.8
years
and
total
disability from the incident. The credible evidence is that Watson
will return to work in an unskilled, light duty job when his
medical condition is resolved. The Court awards $400,000.00 as a
reasonable estimation of his future loss of earning capacity.
9.
The credible medical evidence is that Mr. Watson requires a
two
level
cervical
fusion,
for
which
the
estimated
cost
is
$125,000, according to Dr. Berliner’s report of March 17, 2016. He
also
needs
a
left
knee
arthroscopy
12
and
L4-5
Radiofrequency
neurotomy to treat the injuries he suffered aboard the B.E.
LINDHOLM on September 24, 2014. Past unpaid medical expenses total
$56,582.00. The Court awards past and future medical expenses,
including the cost of future treatment and surgery by Dr. Berliner,
and including any follow-up care until Watson has reached maximum
medical improvement.
10.
Plaintiff has suffered from left knee joint, left leg and
lumbar and cervical pain as well as intermittent headaches. He
will likely undergo a left knee surgery, Radiofrequency neurotomy
of the L4-5 nerve, and a two level cervical fusion in the future,
requiring a total of six to twelve months of recovery. He will
have permanent disability and restrictions. The Court finds that
the Plaintiff is entitled to award of $100,000.00 for past pain
and suffering and $250,000.00 for future pain and suffering.
11.
Under the general maritime law, a seaman like Watson is
entitled to maintenance and cure from his employer for injuries
incurred or aggravated in the service of the vessel. The Osceola,
189
U.S.
158,
175
(1903).
Maintenance
is
a
per
diem
living
allowance for food and lodging comparable to what the seaman is
entitled to while at sea; cure is payment of medical expenses
incurred in treating the seaman’s injury or illness. Calmar S.S.
Corp. Taylor, 303 U.S. 525, 528 (1938); Pelotto v. L & N Towing
13
Co., 604 F.2d 396, 400 (5th Cir. 1979). The ship owner’s duty to
pay maintenance and cure is broad. Vella v. Ford Motor Co., 421
U.S. 1, 4 (1975). The maintenance and cure duty must be liberally
interpreted for the benefit and protection of the seaman. Vaughan
v. Atkinson, 369 U.S. 527, 531-32 (1962). Any ambiguity or doubt
related to maintenance and cure must be resolved in favor of the
seaman. Id. at 532; Barto v. Shore Construction, LLC, 801 F.3d
465, 476 (5th Cir. 2015).
12.
The ship owner’s duty to pay maintenance and cure continues
until the seaman reaches the point of maximum medical recovery,
also known as maximum medical improvement (MMI). Farrell v. United
States, 336 U.S. 511, 519-20 (1949). MMI is reached when the seaman
recovers from the injury, the condition permanently stabilizes, or
the condition cannot be improved further. Morales v. Garijak, Inc.,
829 F.2d 1355, 1359 (5th Cir. 1987), abrogated on other grounds by
Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995).
The point of MMI is a medical determination, and not a legal one.
Breeze v. AWI, Inc., 823 F.2d 100, 104-05 (5th Cir. 1987). The
ship
owner
bears
the
obligation
to
investigate
a
seaman’s
maintenance and cure claim and examine all medical evidence in
determining
whether
maintenance
and
cure
is
owed.
Tullos
v.
Resource Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985). Any
ambiguities or doubts regarding entitlement to cure or the date of
14
maximum medical improvement must be resolved in favor of the
seaman. Caulfield v. AC&D Marine, Inc., 633 F.2d 1129, 1132 (5th
Cir. 1981).
13.
After
a
seaman
has
proved
his
initial
entitlement
to
maintenance and cure, the burden shifts to the ship owner to prove
that maximum cure has been reached. Thomas J. Schoenbaum, Admiralty
and Maritime Law § 6-33 at 394. If the ship owner unilaterally
decides
to
stop
paying
maintenance
and
cure
and
the
seaman
reasserts his right by bringing an action against the ship owner,
the
ship
owner
meets
his
burden
of
proof
only
by
providing
unequivocal evidence that the seaman has reached maximum medical
cure. Johnson v. Moreland Drilling Co., 893 F.2d 77, 79 (5th Cir.
1990). A second opinion contrary to the treating doctor’s opinions
regarding diagnosis or prognosis of an injured seaman does not
provide
the
unequivocal
evidence
required
for
termination
of
maintenance and cure benefits. Tullos, 750 F.3d at 388; Gorum v.
Ensco Offshore Co., No. 02-2030, 2002 WL 31528460, at *6 (E.D. La.
Nov. 14, 2002). Indeed, absent an unequivocal justification to
terminate a seaman’s maintenance and cure, a ship owner may subject
itself to liability for punitive damages and attorney’s fees if it
terminates benefits nonetheless. Rowan v. Chem Carrier Towing,
LLC, No. 12-712, 2015 WL 2097572, at *6 (E.D. La. May 5, 2015)
(“[W]hen a ship owner chooses one doctor from many and follows his
15
recommendation,”
whether
this
behavior
is
“arbitrary
and
capricious” is a question for the jury.)
14.
The Court finds that Weeks arbitrarily terminated Watson’s
maintenance and cure benefits on January 15, 2015. At that time,
the
treating
orthopedic
surgeon
reported
that
Watson
needed
further diagnostic and clinical work up, including a left knee
MRI. Rather than authorize the tests, Weeks obtained a second
opinion and relied solely on the IME to unilaterally terminate
benefits.
Weeks
refused
to
authorize
Dr.
Hontas
to
continue
treating Watson and he was never able to render a final diagnosis
or prognosis.
As a result, Dr. Hontas has never determined that
Watson has reached maximum medical improvement.
15.
Termination of maintenance and cure must be unequivocal to
insure that its beneficent purpose is achieved. Rather than inform
Watson that he would no longer receive benefits, Weeks ordered
Watson to travel back to the B.E. LINDHOLM to resume full duty or
be terminated for abandonment. Watson did not learn that Weeks had
refused to pay for further medical care until he returned to Dr.
Hontas for a scheduled appointment and was told that Weeks refused
to pay for any more medical care. Weeks not only cut off Watson’s
sole source of income and medical treatment, it required him to
either return to work before being discharged from his treating
16
physician or be fired. This action forced Watson to hire an
attorney, to which Weeks responded by filing a suit against Watson
in this Court.
16.
Weeks continued its arbitrary refusal to pay maintenance and
cure by intentionally ignoring and rejecting the opinions of the
subsequent
treating
orthopedic
surgeon
Dr.
Berliner,
the
MRI
testing of February 10, 2015, and the positive nerve conduction
study of July 30, 2015. In essence, Weeks simply ignored the
opinions
of
two
treating
orthopedic
surgeons
and
multiple
radiologists because they did not agree with their diagnosis and
treatment recommendations. Instead, Weeks hired a non-treating
(and non-practicing) orthopedic surgeon and paid him $25,000 to
write a seventy-five “report” criticizing everything and everyone
except the doctor hired by Weeks to perform the IME. The Court
orally stated its reasons for rejecting this doctor’s incredible
and biased testimony at trial.
17.
The only two treating physicians who testified at trial (one
live and one by deposition) have never found that Watson has
reached maximum medical improvement. Both physicians opined that
further medical care and treatment is warranted. Rather than
authorizing the recommended diagnostic testing and treatment,
Weeks instead sent Watson to another doctor who performed an
17
“independent” medical examination and reported there was no need
for further treatment. Weeks, relying on this single medical
report, immediately terminated Watson’s maintenance and refused to
authorize any additional treatment or diagnostic testing that had
been recommended by Dr. Hontas. Weeks then sued Watson in this
Court, seeking a declaratory judgment that it owed no further
maintenance or cure. However, as noted, by that time Weeks had
already unilaterally terminated payment of maintenance and cure.
The
Court
finds
that
Weeks
was
arbitrary
and
capricious
in
terminating Watson’s maintenance and cure benefits on January 15,
2015 and in failing to reinstate benefits when Watson made renewed
demand with supporting medical evidence. Watson is entitled to
punitive damages from Weeks under the general maritime law, plus
attorney’s fees.
18.
For the foregoing reasons, the Court awards the following
damages:
1. Past pain and suffering - $100,000.
2. Future pain and suffering - $250,000.
3. Past wage loss - $48,906.00
4. Loss of future earning capacity - $400,000.00
5. Maintenance through May 17, 2016 - $9,340.00
6. Past unpaid cure expenses - $56,582.00
18
7. Future maintenance expenses - $20.00 per day until Watson
reaches MMI
8. Future medical expenses – $125,000 for two level cervical
fusion plus cost of other treatment including surgery until
Watson reaches MMI
9. Punitive damages for willful failure to pay maintenance and
cure - $100,000.00
10. Attorney’s fees incurred for the maintenance and cure
claim - $50,000.00
Total Award - $ 1,139,828 plus payment of maintenance and cure
until MMI
19.
Watson is entitled to pre-judgment interest at the rate of 4%
per annum from date of injury until paid on the awards for past
damages, including past wage loss, unpaid medical bills, past pain
and suffering. Interest at the same rate is due on the remainder
of the damages awarded from date of judgment until paid.
20.
Weeks Marine’s Complaint for Declaratory Judgment is denied
and dismissed with prejudice.
CONCLUSION
Accordingly, and based on all the foregoing Findings of Fact
and Conclusions of Law,
19
Judgment will hereafter be entered in favor of Rodney Watson
and against Weeks Marine, Inc. as to all of Watson’s claims.
New Orleans, Louisiana this 27th day of May, 2016.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
20
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