Summary
finding that where an injury did not prevent the plaintiff from returning to work, he was not entitled to past wages
Summary of this case from Owens v. Abdon Callais Offshore, LLCOpinion
Civil Action No. 99-2178, Section: "C"
July 6, 2000
OPINION
This matter was tried before the Court, without a jury, on June 29, 2000, and taken under advisement. Having considered the evidence and testimony adduced at trial, the record, the memoranda of counsel and the law, the Court now issues its opinion.
FINDINGS OF FACT and CONCLUSIONS OF LAW
1. The plaintiff, Peter L. Crum (hereinafter "Crum"), filed this suit for damages arising out of an alleged April 27, 1999, accident while working as a seaman aboard the USNS ALGOL. The USNS ALGOL was a public vessel of the defendant United States of America and was operated by Bay Ship Management, Inc. as an agent of the defendant. Crum's maritime status is uncontested. Jurisdiction is found under admiralty and maritime law. 28 U.S.C. § 1331, et seq. Venue is likewise proper.
2. Crum signed on to the USNS ALGOL as Chief Cook on April 19, 1999. At the time of the alleged accident, Crum was 33 years old, a merchant seaman with at least 10 years of experience, virtually all as a member of the galley crew. He previously had served with the United States Navy.
3. On April 27, 1999, Crum and his superior Chief Steward Raymond Brown (hereinafter "Brown") were on cleaning duties in the vessel's galley. The two were responsible for cleaning all the cooking equipment, galley bulkheads, and the freezer box. it was during the performance of these responsibilities that grease from the deep-fat fryer spilled on the galley floor.
4. According to Brown's deposition, which the Court finds credible, the deep-fat fryer on the USNS ALGOL was defective because the spring "kick-stand" mechanism that holds the heating element during the cleaning process was missing. The vessel was without the spring device when Brown signed on to the USNS ALGOL on December 7, 1998. Brown further testified the chief engineer and captain of the vessel knew of the defect and no remedy had been implemented. As a result of the missing spring mechanism, a substitute stand for the heating element was improvised from a small bowl called a "monkey dish." As Brown was in the process of removing the grease pan from the fryer, the "monkey dish" was jarred, causing the heating element to fall back into the grease. A sizeable quantity of grease splashed to the floor and on Crum's coveralls.
5. The Court finds that Crum did in fact slip on the grease and fall, in some manner, to the floor. A conflict exists between the testimony of Brown and the plaintiff as to how soon after the grease spilled the accident occurred. Brown testified that some 20-30 minutes passed and Crum did not slip until after they had partially cleaned up the spill. Crum claims he slipped immediately after the grease spilled on the floor. The Court finds Brown's testimony to be more credible. Brown was not shown to have a bias towards either party nor shown to have any reason not to testify truthfully. Crum, on the other hand, faces the burden of contributory negligence unless the accident occurred immediately.
6. Both Crum and Brown participated in cleaning up the grease spill prior to the accident. They used warm water and Top Job but it was not, as Brown conceded, a "thorough clean." Brown as the supervising employee made the decision to delay a more thorough cleaning of the floor until after they had finished the clean up of the rest of the galley. After their partial clean-up of the grease, the grease was still visible on the floor. Crum, with over ten years experience working in a ship galley, was familiar with spills and had experience in how to walk carefully over them.
7. There were strips of nonskid material in various places on the floor. Brown testified to this and the photographs showed some of those strips, plaintiff expert David Cole based his opinion on the assumption there was no slip-resistant protection in the galley. This assumption was factually incorrect so his opinion has been disregarded.
8. The Court concludes that Crum proved that he injured his knee in the accident but failed to prove that he also injured his back and ankle at that time. Crum testified at trial than he felt immediate stabbing type pains in his back as well as pain in his ankle which continued throughout his tour of duty on the vessel. The Court finds this testimony lacking in credibility for the following reasons. Brown testified that after the accident, Crum complained several times that his leg or his knee was injured, but did not mention his back nor his ankle. Rodney Robinson, who came upon the accident scene shortly after it occurred, likewise testified that Crum complained only of pain in his leg. Likewise he continued to work for several more days, including overtime. He did not file an accident report nor apparently complain of pain to anyone, including the captain who gave him his pay. Brown testified that Crum did not appear to be in serious pain. Finally, when Crum visited the Emergency Room a week after the accident, he only reported an injury to his knee to Dr. Terry Rivers. The Court credits the testimony and notes of Dr. Rivers that Crum did not claim he had injured his ankle. Crum himself concedes he did not complain to the physician of any injury to his back. It was only after consultation with an attorney and a visit to the physicians recommended by the attorney that Crum claimed to have injured his back and ankle also in the accident. The Court finds his testimony not persuasive on that issue.
9. The Court also credits Dr. Rivers' notes and testimony that Crum told him he had injured his knee originally a week before, on board a ship, and re-injured it the day prior to seeking emergency room assistance.
10. As a result of the injury to the knee, Crum suffered a torn meniscus. This condition caused some instability, pain and some swelling. According to Dr. James Ghadially, this condition created an approximate impairment rating of 8%. Dr. Ghadially also testified that Crum needs arthroscopy of the knee to alleviate his problems. Dr. Ghadially testified that this is a "relatively minor procedure" and "(f)or the most part these patients do very well from their knee surgery and have only very minor limitations." He estimated the total cost of surgery plus rehabilitation at $15,000-$18,000. He testified that a "couple of months" of physical therapy would follow the surgery.
11. The Court finds that the injury to the knee was not serious enough at any time to prevent Crum from returning to full status duty as a member of a galley crew. This conclusion is based on the fact that Crum continued working for three full days. plus overtime, after the accident and it is also based on the testimony with respect to Crum's symptoms and therapy by Dr. Ghadially, Ronald Handwerger and Dr. Rivers. It is also based on Crum's own description of the galley duties, which apparently require minimal physical effort, and the fact that he passed his physical and returned to work in January of this year. Consequently, Crum is not entitled to maintenance during the period of time he was not working. Nor he is entitled to past wage loss. If Crum elects to have arthroscopic surgery on his knee, he would be entitled to future maintenance during the period of rehabilitation, up to two months, and two months worth of lost wages.
12. A seamen has a light burden of proof of causation for negligence under the Jones Act. 46 U.S.C. § 688. The plaintiff must prove that his employer's breach of duty was the cause "in whole or in part" of his injury. 46 U.S.C. § 688; See Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997),Gavagan v. United States, 955 F.2d 1016, 1019 (5th Cir. 1992). This burden to show causation "in whole or in part" is identical to that required of railroad worker plaintiffs under Section 51 of the Federal Employer's Liability Act ("FELA"). 45 U.S.C. § 51.See Gautreaux, 107 F.3d at 335. The Supreme Court has explained that under the FELA standard the seaman must only prove the employer bore the "slightest" responsibility for the injury. See Id., quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957).
A seaman proceeding under a cause for unseaworthiness has a more difficult burden of proof for causation. See Smith v. Trans-World Drilling Company, 772 F.2d 157, 162 (5th Cir. 1985),Johnson v. Offshore Express, 845 F.2d at 1354 (5th Cir. 1988),Gavagan v. United States, 855 F.2d 1016 1019 (citing Johnson in FN7). "[A] plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness." Johnson v. Offshore Express, Inc., 845 F.2d at 1354.
13. The Court concludes that the defendant is 80% responsible for the accident. This is based on the following: (1) the fryer contained a longstanding defect in that the heating element could not be held stable while aloft while the fryer was being cleaned. This failure to repair the fryer was both negligence and an unseaworthiness condition. Under either standard, the defect was a substantial cause of the accident; (2) Supervisor Brown elected not to thoroughly clean the grease spill, but deferred until the entire galley had been cleaned. This was negligence and a cause of Crum's subsequent slip and fall. Crum is 20% responsible for the accident in that he was aware of the grease spill, the grease was visible, he had experience in working in such conditions, yet failed to take all necessary precautions to maintain his balance.
14. Dr. Rivers' notes indicate Crum told him he had re-injured his knee since the original accident a week before. Crum denies both re-injuring his knee as well as saying such to Dr. Rivers. While the Court does not find Crum to be credible on that point, the Court also has no way to measure the seriousness of the re-injury and what percentage to apportion to that unknown incident. Nowhere else in the record does the issue of the alleged re-injury appear. Considering that Crum did establish a bona fide accident on the vessel and since he did immediately complain of injury to his knee to Brown and Robinson, the Court will find that the torn meniscus did occur at that time and that any re-injury was insignificant.
15. With respect to pain and suffering, the Court finds that an award of $18,000.00 is reasonable in general damages, including pain and suffering, past and future, resulting from the injury to the knee if Crum elects not to have the arthroscopic surgery. If Crum elects to have the arthroscopic surgery, this amount would be increased by $12,000.00 for a total of $30,000. This amount is to be reduced in accordance with the percentage of fault attributed to Crum.
16. With respect to future medical expenses, the Court finds that the defendant is responsible for paying for Crum's arthroscopic surgery to his knee and rehabilitation, if he elects to have the surgery in an amount no greater than $18,000. That decision must be made within 60 days of this opinion. In the event surgery is undertaken, the plaintiff is entitled to a total maintenance award of $480, representing the contract rate of $8.00/day for 60 days. In addition, the Court finds that the plaintiff would be entitled to two months lost wages in the event of surgery, for a total of $6,500, approximately based on the plaintiff's economist's base earning figure. However, no award for lost fringe benefits is made for this two month recovery period, based on the speculative nature of the evidence provided on this item.
17. With respect to past medical expenses, the Court is unable from the record presented to determine what expenses are attributable to the knee injury as compared to those attributable to the back and ankle. The plaintiff may re-submit revised bills for make that allocation within 60 days of this opinion. The Court urges both parties to settle that particular issue.
Accordingly,
IT IS ORDERED that the plaintiff advise the Court in writing within 60 days of his intent with regard to having arthroscopic surgery on his knee as recommended by his doctor, and that the parties re-submit the past medical bills which concern the knee injury within that time.