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holding that the plaintiff's annualized earnings for the year he was injured "[was] the correct base from which his future lost wages should be calculated"
Summary of this case from Lawrence v. Great Lakes Dredge & Dock Co.Opinion
Civil Action No. 02-2983, c/w 02-3364 and 03-0235 SECTION: E/2.
August 2, 2004
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
This matter originally involved two Jones Act seamen, Joseph Lopinto ("Lopinto"), who filed the first lawsuit, and Richard Clark ("Clark"), who filed a claim in each of two limitation actions filed after Lopinto's lawsuit, both of which were consolidated with Lopinto's lawsuit. Clark's pleading states a claim pursuant to the Jones Act, 46 U.S.C. § 688 et. seq., and general maritime law alleging the unseaworthiness of the vessel. Crescent Marine Towing, Inc. ("Crescent"), defendant and limitation plaintiff, owned and operated the M/V BIG JOE and employed Lopinto and Clark as crew members aboard the vessel. Defendant and limitation plaintiff Turner Marine Fleeting, Inc., dba Pelican Marine Fleeting ("Turner") operated the M/V NEVA BELLE, which was owned by defendant GATX Third Aircraft Corporation.
On the morning of July 22, 2002, the BIG JOE was navigating northbound in the Mississippi River with a loaded two barge tow. While attempting to maneuver to avoid the drifting NEVA BELLE its barge tow struck the anchored Chinese freighter M/V JIN SHAN HAI opening a 15' gash in her hull. Clark and Lopinto were in the galley of the BIG JOE when the allision occurred, and both were thrown down and injured. Lopinto and all other claimants in both limitation proceedings settled prior to trial and were dismissed. Clark elected to try his claims to the Court pursuant to its admiralty jurisdiction.
Prior to trial defendants stipulated to liability and apportioned the liability between themselves at 60% for Crescent and 40% for Turner. As to Clark's personal injury claims, both defendants dispute causation and Crescent disputes Clark's claim to maintenance and cure. The issue of limitation was held open to be decided by the Court should plaintiff's damages exceed $950,000,00. Clark's claims were tried to the Court on April 27 and 28, 2004.
Having considered the pleadings, depositions, the testimony and evidence presented at trial, and the record, and pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court hereby enters the following findings of fact and conclusions of law. To the extent that any findings of fact constitute a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusions of law constitute a finding of fact, the Court hereby adopts it as such.
Findings of Fact
On July 22, 2002, Clark held a current U.S. Coast Guard tankerman ticket that was valid through August 16, 2004. Defense Exhibit (D.Ex.) 38. It is undisputed that Clark was employed by Crescent and was working as a tankerman aboard the M/V BIG JOE at the time of the allision. It is also undisputed that Clark was knocked down or fell down in the galley when the allision occurred. Clark was 41 years old at that time.Clark claims that as a result of his fall he injured his low back, neck and shoulders. Immediately after the accident Crescent sent Clark to see Dr. Nelson at the Occupational Medical Clinic of West Jefferson Medical Center. Dr. Nelson diagnosed a lumbosacral strain and released him to modified duty. Clark did not return to work. He next was treated at West Jefferson Medical Center on July 26, 2002, for his complaint of "acute" low back pain. He was diagnosed with acute lumbar strain for which he was treated with pain medication and released.
There is no dispute that his shoulder and neck pain resolved completely within a few weeks. The focus of his personal injury claim is persistent acute low back pain.
There are no records of the visit to Dr. Nelson in evidence. The first medical records reflect Clark's visit to West Jefferson Medical Clinic on July 26, 2002. P. Ex. 2. According to the medical record, he had an appointment to see Dr. Nelson, but refused to see him and referred to Dr. Nelson as a `quack'. Instead, he saw Dr. Khalaf.
On July 29, 2002, Clark began treatment with Dr. John McCain, a pain management specialist. He complained of acute low back pain. A lumbar MRI was performed on August 13, 2002, which revealed a herniated disc and degenerative changes at L5-S1. Dr. McCain treated Clark with medications and physical therapy, but after several physical therapy sessions Clark told Dr. McCain that the sessions made his condition worse. Dr. McCain referred Clark to Dr. Bradley Bartholomew, a neurosurgeon. At Clark's initial visit with Dr. Bartholomew on October 25, 2002, Dr. Bartholomew suggested a discogram to determine whether Clark was a candidate for and IDET procedure or a fusion. P. Ex. 4. Meanwhile, Crescent referred Clark to Dr. Gordon Nutik, an orthopaedic surgeon, for an independent medical examination on December 4, 2002. D. Ex. 3. Dr. Nutik noted that the prior MRI showed minimal disc herniation at the L5 sacral-level and recommended conservative treatment, including a program of physical therapy and epidural steroid injections.
Dr. Charles Aprill performed a discogram on February 3, 2003. His impression was discogenic low back pain and concentric posterior anular fissures at the L5/S1 disc. P. Ex. 5. On February 21, 2003, Dr. Bartholomew recommended that Clark stop smoking in preparation for his spinal fusion. On March 24, 2003, Clark and Dr. Bartholomew discussed more conservative treatment such as the physical therapy and steroid injections suggested by Dr. McCain. Clark elected to return to Dr. McCain on March 31, 2003 for transforaminal steroid injections at L4, L5 and S1. On April 22, 2003, Clark reported that the pain relief from the injections lasted only 2 or 3 days. P. Ex. 4.
On January 17, 2003, apparently referred by his attorney, Clark underwent a psychiatric assessment by Dr. James Lo at the L.S.U. Medical Center Outpatient Psychiatric Center. P. Ex. 7. Clark reported depression due to his injury on July 22, 2002, as well as some drug use as a teenager, and some past alcohol use. In July of 2003, Dr. James Epps, Jr., succeeded Dr. Lo as Clark's treating psychiatrist. Dr. Epps testified at trial that Clark's depression was due to his accident and injury on July 22, 2002, but that his prognosis is excellent and Clark was successfully attending AA meetings for his alcohol problem. On cross examination, Dr. Epps learned for the first time of Clark's twenty year history of substance abuse. On January 14, 2002, Clark was voluntarily admitted to Herman Memorial Hospital requesting detoxification for polysubstance abuse, which he dated to age 13 when he began to drink alcohol. D. Ex. 20, p. 14. At that time, he described a lifestyle consisting of 24 days off shore and 14 days on shore, during which he drinks as much as a gallon of vodka daily which leads to cocaine abuse and sex with prostitutes. See also D. Exs. 14, 15, 16 and 31. Dr. Epps admitted that depression can be caused by substance abuse, and that he could not say with reasonable medical certainty that Clark's depression was related to his accident and not to his history of chronic substance abuse.
Dr. Henry Eiserloh, an orthopaedic surgeon, is Clark's treating physician. Clark first saw Dr. Eiserloh on August 25, 2003. Dr. Eiserloh testified on direct examination that he diagnosed discogenic persistent low back pain with bilateral leg pain although his orthopaedic and neurological examinations were normal and there were no objective findings of herniation or impingement. He explained that discogenic pain is caused by the irritation of tiny nerve fibers inside the outer portion of the disc. Considering that prior conservative treatments had not provided sustained pain relief Dr. Eiserloh recommended an L5-S1 fusion based on Clark's continued complaints of pain. He testified that he informed Clark that he must stop smoking prior to the surgery. D. Ex. 10. Surgery was initially scheduled for February 3, 2004, conditioned on a presurgical blood test in January to confirm that Clark had stopped smoking. Clark did not appear for his blood test and the scheduled surgery was cancelled. As of his March 22, 2004, appointment with Dr. Eiserloh, Clark had not successfully quit smoking. At that time, his surgery was scheduled for June, 2004.
At a post-trial hearing on June 25, 2004, Clark testified that his June surgery date was cancelled and surgery was rescheduled for August, 2004.
On cross examination, Dr. Eiserloh acknowledged that Clark had pre-existing degenerative disc disease, but in his opinion, the condition was aggravated by the fall on July 22, 2002. He testified that degenerative disc disease could be asymptomatic in some people and symptomatic in others, and that ultimately, a diagnosis of discogenic pain must rely on the patient's subjective complaints of pain. He observed that often, as in Clark's case, there are no objective findings to support the diagnosis.
Dr. Eiserloh also acknowledged that Clark had denied any history of drug addiction, and that he had learned of Clark's history of substance abuse only during his deposition for trial. He subsequently discussed the matter with Clark, and required that Clark undergo a complete psychiatric evaluation prior to surgery. Dr. Eiserloh testified that Clark's history of substance abuse made him harder to treat because substance abusers complain of more pain. He agreed that Clark's history was indicative of a severe substance abuse problem, and that his pain response is a factor of his substance abuse
Dr. Robert Applebaum, a neurosurgeon, examined Clark on September 23, 2003, at the request of defendants. Dr. Applebaum testified that his diagnosis was pre-existing degenerative disc disease, and that considering Clark's history of substance abuse he did not believe that Clark was a candidate for surgery. Like Dr. Nudik, his recommended epidural steroid injections rather than surgery. On cross examination, Dr. Applebaum admitted that he (like Dr. Nudik was unaware that Clark had already unsuccessfully undergone epidural steroid injections. Dr. Applebaum also testified that he "did not believe in discogenic pain" because it is not supported by objective findings. He believes a discogram is irrelevant because the procedure itself induces pain in the patient. Dr. Applebaum agreed, on cross examination, that in his opinion Clark's pre-existing condition was aggravated by his fall on July 22, 2002, but believed that the aggravation was not a serious injury and had resolved several months after the accident.
Conclusions of Law Causation
A Jones Act plaintiff's burden of proving causation is "featherweight", and all that is required is a showing of slight negligence. Alverez v. J. Ray McDermott Co., Inc., 674 F.2d 1037, 1042 (5th Cir. 1984) (citations omitted). "[T]he Act does not exclude liability for remote damages: the ship owner will be held liable if his `negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'" Id., at 1043 n. 4, quoting 1B Benedict on Admiralty § 28 at 3-162-166 (7th ed. 1980).
There is no question that both defendants are liable for causing the allision, nor is there any allegation that any act or failure to act on Clark's part contributed to his fall. There is no allegation that Clark was under the influence of alcohol or drugs at the time of the accident. Crescent has not alleged that he was unable to perform, or was not adequately performing, his job as a tankerman during his employment. Defendants do allege that Clark has not provided credible proof that the fall caused his injury and resulted in his persistent low back pain.
It does allege that his Coast Guard license was "null and void" because he lied on the Coast Guard application for the license, and that he would not have been hired without the license.
The defendants assert only one defense to Clark's claims. They argue vigorously that Clark is a proven liar, that he has lied to all of his doctors about his substance abuse, that he lied to the Coast Guard to obtain his license, that he lied under oath at trial, and that the only evidence of causation and his alleged damages is his own self-serving testimony that cannot be believed. They further argue that the doctrine falsus in uno, falsus in omnibus applies, and because Dr. Eiserloh's diagnosis of discogenic pain and his recommendation for surgery to relieve the pain is cased entirely on Clark's subjective complaints of pain, the Court should give no weight to Dr. Eiserloh's opinion.
At trial Clark did not deny that when applied for his tankerman's ticket, he lied about his 20 year substance abuse problem as well as his record of multiple arrests and several convictions in several states, mostly for public intoxication, DUI and soliciting prostitution. See D. Exs. 14, 15, 16, 20, 36 and 38. He also admitted that he did not tell his multiple employers about his substance abuse and criminal history, nor did he inform many of them about his prior on-the-job injuries. Nevertheless, Clark claimed that he had "turned his life around" when he admitted himself to Memorial Hermann Medical Center on January 14, 2002, for "detoxification, stabilization and rehabilitation." D. Exs. 20 pp. 14-16, 20A, 20B, 20C and 20D. He also claims that his decision to have his teenage daughter live with him during the 2003-2004 school year is evidence that he has changed his life.
Notwithstanding his attempt to clean up his life, on February 19, 2002, just two weeks after he completed his rehabilitation program at Memorial Hermann Medical Center, he was admitted to Ben Taub General Hospital in Houston for cocaine induced chest pains, where he tested positive for cocaine. D. Ex. 14, pp. 16-17, 40. Three months after that he received a DUI in Harris County, Texas. On October 3, 2002, he was arrested in Jefferson Parish on a domestic battery charge. On August 18, 2003, he was arrested in Jefferson Parish for disturbing the peace and resisting arrest after leaving a bar on foot. Twenty-two days before trial, he ran a red light while driving his truck at 9:50 a.m. and struck another vehicle broadside. He was arrested for DUI and refused a blood test. He has not been convicted on any of these recent charges.
The Court harbors no illusions as to Clark's veracity or credibility. It does, however, give great weight to the testimony of his treating physician, Dr. Eiserloh, who examined and interviewed Clark on a number of occasions. He testified that not all spinal injuries can be identified by objective findings and that sometimes he must rely only on the patient's complaints of pain for his diagnosis, as he did in this case. Dr. Eiserloh is experienced in treating patients with spinal injuries and low back pain and was accepted without challenge by all parties as an expert in the field of orthopaedic surgery. He testified that based on his observations and examinations of Clark he does not doubt that Clark has severe pain in his low back, although he did admit that because of Clark's history of substance abuse he is a difficult candidate for surgery. The Court was able to observe Clark's physical demeanor during the trial and agrees with Dr. Eiserlon's opinion. Finally, Dr. Applebaum agreed that the accident aboard the BIG JOE exacerbated Clark's pre-existing degenerative disc disease, while he disagreed with Dr. Eiserloh's recommended treatment. The Court finds that Clark has produced sufficient evidence that the accident aboard the BIG JOE aggravated his pre-existing asymptomatic degenerative disc disease resulting in persistent severe low back pain.
Damages
The law is clear that when a defendant's [negligence] aggravates or accelerates a plaintiff's pre-existing condition and disables a plaintiff, thus rendering him unable to continue his work, or said aggravation awakens a dormant condition that causes a plaintiff to experience pain although he had suffered no pain from the condition prior to the aggravation, such defendant is liable in full for the disability and/or pain it caused.Milos v. Sea-Land Serv. Inc., 478 F. Supp. 1019, 1023 (S.D.N.Y. 1979), aff'd 622 F.2d 574 (2nd Cir. 1980), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 219 (1980). A plaintiff must minimize his damages by submitting to reasonable treatment including reasonably corrective surgery. Pisciotta v. Allstate Insurance Co., 385 So.2d 1176, 1182 (La. 1980). The damage award should include the cost of the corrective surgery. Id.
Under the Jones Act and general maritime law, a seaman may also recover damages for past lost wages, loss of earning capacity or future lost wages, loss of fringe benefits, and medical expenses. 46 U.S.C. § 688 et seq., Levine v. Zapata Protien (USA), Inc., 961 F. Supp. 942, (E.D.La. 1996). Finally, a seaman is entitled to maintenance and cure if he becomes ill or is injured in service of a vessel. Sharp v. Stokes Towing Company, Inc., 989 F. Supp. 791, 795 (N.D.Ms. 1998), citing Davis v. Odeco, 18 F.3d 1237 (5th Cir.), 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994); Leocadio v. Lykes Bros. Steamship Co., 282 F. Supp. 573, 575 (E.D.La. 1968).
Of course, the plaintiff bears the burden of proving his damages by a preponderance of the evidence. Clements v. Chotin Transportation, Inc., 496 F. Supp. 163, 168 (M.D. La. 1980). "Speculation, possibilities and conjecture are not sufficient."Id.
Clark claims that he is entitled to general damages for pain and suffering, past and future medical expenses, past and future wage loss, loss of fringe benefits, and maintenance and cure.
1. Cure and/or past medical expenses
A seaman is entitled to cure payments only until such time as he reaches maximum medical cure. Coulter v. Ingram Pipeline, Inc., 511 F.2d 735, 739 n. 4 (5th Cir. 1975), citing M. Norris, The Law of Seamen § 560 (2d ed. 1962), G. Gilmore and C. Black, The Law of Admiralty 262-268 (1975). Maximum medical cure is reached when no further improvement can be expected from further treatment and care of a continuing disability resulting from injuries sustained by a seaman. Coulter, id., citing Leocadio, 282 F. Supp. at 575; Sharp, 989 F. Supp. at 796;Henry v. Candy Fleet Corp., 2001 WL 121913 *9 (E.D.La. 2001). Moreover, a vessel owner need not pay for medical treatment which will be "only palliative" or "only reduce his pain." Henry, atid., citing Stanovich v. Jurlin, 227 F.2d 245, 246 (9th Cir. 1955); Sharp, 989 F. Supp. at 796 n. 2. "Palliative treatments refer to medical treatments which go to the reduction of pain or intensity without curing the underlying problem."Henry, at id.
Crescent paid Clark maintenance from the date of his injury until shortly after the trial. The only cure Crescent paid was the bill from the Occupational Medicine Clinic of West Jefferson Medical Center, although it continued to pay maintenance until after the trial. Clark argues that Crescent's refusal to investigate his medical condition and pay his medical bills incurred as he sought treatment for his injury and pain was egregious, arbitrary and capricious, and as damages he is entitled to his attorney's fees in addition to payment of his past medical expenses. Clark submitted evidence of past medical expenses in the amount of $20,525.51, including prescription medications, which defendants do not dispute.
Clark's maintenance claim was addressed by the Court's Order and Reasons entered on July 16, 2004, at record document 257, and will not be discussed here.
Crescent argues that Clark forfeit his right to maintenance and cure when he failed to disclose on his application for employment at Crescent that he had injured his back on at least 6 or 7 occasions in the past while doing seaman's work, and did not mention his substance abuse problem. See McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968). Had he told the truth, according to Corbert Plaisance's testimony, Crescent would not have hired him. Crescent's argument is illogical because it continued to pay Clark's maintenance until just after the trial, while refusing to pay his cure. Nevertheless, given the conflicting opinions as to the medical causation of Clark's persistent pain, the Court finds Crescent's failure to pay cure was not egregious and does not award attorney's fees.
Crescent also argues that Clark reached maximum medical improvement within days or weeks of his injury. Ambiguities and doubts as to a seaman's right to receive maintenance and cure are to be resolved in favor of the seaman. Henry, 2001 WL 121913 at *9, citing Vaughan v. Atkinson, 369 U.S. 527, 532 (1962). The Court finds that Clark was entitled to cure from the date of his injury until Dr. April performed a discogram on February 3, 2003, and diagnosed discogenic pain. From at least that point on, Clark's treatment was to alleviate his persistent low back pain and not to "cure" his condition. He had reached maximum medical improvement.
The Court also finds that Clark is entitled to his past medical expenses to the date of trial of $20,525.51, but that Crescent is entitled to an offset for the cure payments due by Crescent for the period from July 22, 2002 to April 3, 2003.
2. Future medical expenses
Dr. Eiserloh testified that he after he learned of Clark's history of substance abuse, he informed Clark that he would not operate until Clark had a full psychiatric evaluation, underwent substance abuse treatment, and finally, quit smoking. His notes from Clark's office visit on March 22, 2004, stated that although Clark had apparently quit smoking at some point, by that date he had resumed smoking. As of the date of trial Clark had not undergone surgery although it was, at that time, scheduled for June, 2004. At the June 25, 2004, hearing on his motion for reinstatement of his maintenance payments, Clark testified that the June surgery date had been cancelled, but was rescheduled for August, 2004.
Defendants argue that whether Clark will ever actually undergo surgery is so speculative that he is not entitled to an award of damages for the cost of the surgery. Moreover, they argue that even though he claims that he wants to and has turned his life around, his history of relapses and evidence of continued smoking and drinking make it highly unlikely that Dr. Eiserloh will operate on him.
The Court agrees that whether Clark will actually be able to fulfill the requisite conditions to undergo the recommended surgery is uncertain. However, as of June 25, 2004, Dr. Eiserloh had not discharged Clark as a patient, and had rescheduled surgery. Accordingly, the Court finds that as damages, Clark is entitled to the costs of the recommended surgery. Dr. Eiserloh testified that his fee for the recommended surgery is $18,100.00. Clark introduced evidence that the hospital costs for the surgery is estimated to be $29,327.00. See P. Ex. 8, last page — a letter dated March 30, 2004, from Lou Barovechio, Manager, Patient Financial Services, East Jefferson Hospital.
However, Clark must mitigate his damages. Successful surgery should reduce or eliminate his need for prescription pain medication. The Court does not find that an award for future prescription pain medications is warranted.
3. General damages
Clark testified that he has been in constant severe pain since the accident, that he suffers depression because of his pain and inability to return to work, and that he is irritable, can't sleep, can't cook or do laundry or yard work, and can no longer have sex or go out. Dr. Epps testified at trial that he could not say whether Clark's depression was related to his history of substance abuse or his injury. Additionally, Dr. Eiserloh testified that Clark's history was indicative of a severe substance abuse problem, and substance abusers complain of more pain and the pain response is a factor of the substance abuse. He also testified that even if successful, the surgery will relieve Clark's pain, but will not reduce the level of disability. Clark will never be able to do heavy lifting or manual labor, and will not be able to go back to work on the water.
Crescent claims that given Clark's history of lies to his doctors, the Coast Guard, and his employers, his allegation of an injury is not credible and is just an attempt to get money from defendants. Clark responds that he was treated conservatively for each of 6 or 7 prior back injuries and returned to work each time without filing a lawsuit on any of those occasions.
The Court concludes that just because Clark has admittedly spent his entire adult life lying about his substance abuse and the criminal repercussions of that lifestyle, it does not necessarily follow that he is also lying about his pain. The Court finds that Clark does experience persistent low back pain as a result of the aggravation of his pre-existing degenerative disc disease, and even if he undergoes the recommended surgery, he may continue to have some low back pain. However, the Court also finds that his pain is exacerbated as a result of his prior substance abuse for which defendants are not liable. Moreover, evidence was introduced that Clark does "go out", drives, socializes, and is capable of taking care of himself and performing some household chores. Finally, his treating physician has recommended surgery to alleviate the pain. Although there is no guaranty that the surgery would alleviate all of his pain, Clark is obligated to mitigate his damages and defendants are not required to pay for future pain that could be alleviated but for Clark's failure to undergo the recommended surgery. Accordingly, the Court finds that Clark is entitled to general damages of $30,000.00.
4. Past wage loss
The loss of wages is based on the wage earnings at the time of the injury, the moment the wage-earner suffers the damages, not on his average earnings. Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir. 1984). The plaintiff must prove his past lost earnings and the length of time absent from work which is attributable to the injury at issue. Fontenot v. SouthWestern Offshore Corp., 787 So.2d 588 (La.App. 3 Cir. 2001). The Court determined that Clark's annualized earnings in 2002 were approximately $22,500.00. None of the doctors who have examined or treated Clark completely restricted him from working. Dr. Eiserloh testified that Clark could return to light duty work at any time, if his pain allowed it. Clark has apparently made no effort to do any light duty work since the date of the injury. Having determined that Clark reached maximum medical improvement by the beginning of April, 2003, the Court finds that his past lost wages would be for a period of eight months. Adding the ten days lost in July, 2002, after his accident, Clark's past wage loss is $15,652.00.
5. Future wage loss
To recover future lost earnings, the plaintiff must produce medical evidence that shows with reasonable certainty that a residual disability that is causally related to the accident in question exists, resulting in the plaintiff's disability to earn wages to the same extent that he could have earned had he not been injured. Fontenot, 787 So.2d at 593. The four steps to determine future lost wages are (1) estimate the lost work life expectancy; (2) calculate the list income stream; (3) compute the total amount of damages; and (4) discount the total amount to its present value. Id., citing Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) ( en banc) (Culver II).
Crescent argues that even if Clark was injured in the fall, his future wage loss should be only $500 to $6,000. It argues that Clark should not have been working as a tankerman at tankerman's wages because his current Coast Guard license was invalid because he would not have received the license had he been truthful. Therefore, his base wage should be what he would have earned as a deckhand Corbert Plaisance, the owner of Crescent, testified that he would not have hired Clark without a valid Coast Guard license, nor would he have hired him had he disclosed his history of substance abuse or his history of prior back injuries. Nevertheless, the fact remains that Plaisance did hire Clark, that Clark did work as a tankerman for Crescent, and he was injured while in the service of the vessel, through no fault of his own.
Crescent called Don Green, a retired Coast Guard Commander, as an expert in Coast Guard licensing procedures to support its argument. Green testified that in his opinion, Clark's current Coast Guard license was "null and void" because he lied about his substance abuse on his license application. In his opinion, Clark could not get his current license renewed and he would not be able to get work as a tankerman in the future not because he was injured, but because he would not have a Coast Guard license. In rebuttal, Clark produced a "continuity" Coast Guard license that he had received just days prior to the trial. The license was described as being for "continuity purposes" only, because the examining physician, Dr. Mohammad Yousuf, certified that Clark was medically fit except for his low back injury and he could not work until cleared by his orthopaedic surgeon. P. Ex. 13.
Clark testified at trial that he was truthful about his past substance abuse and criminal history on his application for the continuity license. When confronted with the medical certification form on his application that indicated no past or current depression or substance abuse, Clark testified that during the physical examination he told Dr. Yousuf about his substance abuse. On Crescent Marine's motion, the Court held the record open for the deposition testimony of Dr. Yousuf. Dr. Yousuf testified at his deposition that Clark never told him about his history of substance abuse, and that had he been informed of it he would have required additional information prior to completing Clark's medical certification for the Coast Guard license. R. d. 255, Yousuf deposition, p. 22, ln. 7-p. 23, ln. 7 and p. 25, ln. 13-p. 29, ln. 13. While it is clear that Clark lied under oath, the Court concludes that ultimately, the questions of whether Clark's Coast Guard license was null and void and whether he would be able to renew the license if he were truthful, are immaterial.
Dr. Eiserloh testified that, assuming Clark had the recommended surgery, he would be limited to sedentary work for three months, and limited to light duty — with lifting of 25 pounds — for one year. He testified that in time, Clark could return to light to medium duty work, but would not be able to do the heavy lifting and manual labor required of the work he was doing prior to the injury. Nancy Favalora testified on behalf of Clark, and Nathaniel Fentress testified on behalf of defendants, both vocational rehabilitation experts. Favalora testified that given Clark's physical limitations, he would be limited to light duty jobs paying between minimum wage of $5.15 to $7.50 @ hour. Fentress testified that in his opinion Clark could earn between $7.50 and $9.00 @ hour in the future. His opinion was based in part on his understanding that Clark would be able to lift 50 pounds after rehabilitation. Given the future limitations on his physical capabilities that Dr. Eiserloh described, the Court concludes that Clark's future wage rate will be limited to $7.50 @ hour.
Dan Cliffe testified for Clark and John Theriot testified for defendants, both accepted as expert economists. Cliffe testified that Clark's work life expectancy was 16 years; Theriot testified that his work life expectancy was 14.84 years. Dr. Eiserloh testified that Clark's work life expectancy would be shorter than the statistical work life figures considering his degenerative disc condition, his lifetime of heavy manual labor, and his diagnosis of hepatitis, alcoholism and drug abuse. The Court accepts Theriot's opinion that Clark's work life expectancy is 14.85 years. See Barthelemy v. Phillips Petroleum Co., 1999 WL 65024, *5 (E.D.La. 1999) (older plaintiff with prior injuries, who worked in manual labor his whole life, would likely have a reduced number of work years.)
Cliffe used $32,270.00 as Clark's annual wage base to calculate Clark's future lost wages. Using his high/low hourly wage rates, Cliffe calculated Clark's future lost wages at a high of $253,810 and a low of $200,845. The Court finds that $32,270 as Clark's annual wage base is inflated. Cliffe used an average of Clark's 2000 and 2001 earnings, and the 2001 figure of $41,277 was admittedly incorrect, and even the corrected figure of $38,151 is $11,500 higher that his next highest earnings year, 1998, when he earned about $26,600. Moreover, it did not consider Clark's annualized earnings for 2002, the year in which he was injured. On the other hand, Theriot used a five year average annual wage of $28,724 (the latest five years) and a residual earning capacity of $9.00 @ hour to calculate Clark's future lost wages at $104,349. Alternatively, using $22,000, his calculation of Clark's 2002 annualized earnings, as a base and a residual earning capacity of $9.00 @ hour, he arrived at future lost wages of $37,885.
The Court finds that $22,500, Clark's approximate annualized earnings for 2002, is the correct base from which his future lost wages should be calculated. At $7.50 @ hour, working regular 40 hour weeks for 50 weeks, Clark would have an annual wage of $15,000. Based on his expected work life of 14.84 years, and applying a discount rate of 2.5% (used by Theriot), his future wage loss is $108,517.50.
6. Fringe Benefits
Clark claims that he is entitled to lost fringe benefits in the form of free meals and paid medical insurance. Clark testified, and Crescent did not dispute, that Clark's meals were provided free of charge while he was working, and that Crescent paid him maintenance of $10.50 per day. Maintenance payments are intended to compensate the seaman for his costs of food and lodging while he is undergoing treatment for his illness or injury. Oswalt v. Williamson Towing Company, Inc., 488 F.2d 51, 53 (5th Cir. 1974). He is entitled to maintenance only until such time as he reaches maximum medical cure. Coulter, 511 F.2d at 739 n. 4 (5th Cir. 1975) (citations ommitted); Leocadio, 282 F. Supp. at 575; Sharp, 989 F. Supp. at 797. In effect, Clark is arguing that he is entitled to a permanent maintenance stipend. Clark has had 40 employers in the last ten years. It is speculative, at best, to assume that Clark would have worked for Crescent, or any other employer that provided on-the-job meals, for the remainder of his expected work life. He is not entitled to the value of the free meals as a lost fringe benefit.
As for the loss of paid medical insurance, in the last ten years Clark worked for only two of his 40 prior employers for at least a full year. While he may have qualified for paid medical insurance from some of his prior employers, he was not covered by a medical insurance plan while he worked for Crescent. He is not entitled to any damages for lost medical benefits.
CONCLUSION
Accordingly, judgment will be entered in favor plaintiff and against defendants on plaintiff's claim for damages in the following amounts:
1. Past medical expenses and cure: $ 20,525.51 2. Future medical expenses: $ 47,427.00 3. General damages: $ 30,000.00 4. Past lost wages: $ 15,206.00 5. Future lost wages: $108,517.50 ___________ TOTAL $221,776.01
When a Jones Act case is brought pursuant to the court's admiralty jurisdiction, an allowance of pre-judgment interest is within the discretion of the trial court. Parish of Plaguemines as owner of the M/V Pointe-a-la-Hache, 231 F. Supp.2d 506, 515 (E.D.La. 2002), citing Doucet v. Wheless Drilling, 467 F.2d 336 (5th Cri. 1972). Pre-judgment interest at the current federal statutory rate is awarded on all sums for past damages, from July 22, 2002, until paid; post-judgment interest at the same rate is awarded from the date of judgment on all sums awarded for future damages. Smith v. Seariver Maritime, Inc., 2002 WL 1339084 (E.D.La. 2002), citing Doucet, id. (other citations omitted).
Crescent Marine Towing, Inc.'s limitation suit, C.A. No. 02-3364, and Turner Marine Fleeting, Inc.'s limitation suit, C.A. No. 03-235, are both DISMISSED AS MOOT.
Court costs are assessed against the defendants.