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awarding $55,000 for a shoulder injury
Summary of this case from Lovell v. Master Braxton, LLCOpinion
Civil Action 01-84, Section "T"(3)
July 3, 2002
This cause came before the Court for a bench trial on October 9 and 10, 2001. The plaintiff, Briannell Ruffin, sued the defendant, Gulf Tran, Inc. ("Gulf Tran"), under Jones Act negligence, and unseaworthiness, asserting a claim for damages arising out of an accident alleged to have occurred on November 8, 2000, while Ruffin was assigned to the MN CRUSADER. In addition, plaintiff asserts a claim for maintenance and cure, attorney's fees, and penalties for the failure to pay maintenance and cure.
The Court, having heard the testimony at trial, having considered the record, the evidence, the memoranda submitted by the parties, the law and applicable jurisprudence, now makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; and likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
With regard to the Court's factual findings, if no exhibit is specifically referenced, that particular finding is based upon the testimony given by various witnesses at trial.
1. It is undisputed that Briannell Ruffin was a seaman employed by Gulf Tran on November 8, 2000, assigned to the M/V CRUSADER, as a member of her crew. The MN CRUSADER was operated by Gulf Tran. (Pre-Trial Order, p. 6)
2. Ruffin was earning $68.00 per day with an additional $20.00 per day for rigging work, for a total of $88.00 per day.
3. It is undisputed that plaintiff was paid maintenance of $15.00 a day from November 8, 2000 to February 21, 2001, and a portion of the cure was likewise paid by Gulf Tran. (Pre-Trial Order, p. 6)
4. The M/V CRUSADER had a four-man crew consisting of Captain Reginald Harris, first-mate Edward Picou, engineer Leslie Brent St. John, and plaintiff Briannell Ruffin.
5. The M/V CRUSADER worked with the Cameron Area Block 521 in the Gulf of Mexico.
6. On November 8, 2000, the MN CRUSADER was tied off to a platform by means of a two inch nylon rope.
7. The weather conditions were getting rough, so Captain Harris decided to untie the vessel and return to port. The winds were 20-25 knots with seas 8-10 feet and building.
8. Edward Picou was at the wheel, while Harris went to assist Ruffin and St. John at the bow in untying the vessel and pulling in the rope.
9. Picou discovered that one of the engines would not engage, so Harris went to the engine room. There was conflicting testimony as to whether Harris went to the engine room alone or with St. John. This Court finds the testimony of Picou and Ruffin more credible, finding that Ruffin was left alone on deck, while Harris and St. John went to the engine room.
10. When Harris reached the engine room, he found that the actuator was not working properly but he did not have a new one to replace it; as such, Harris lubricated the actuator which allowed it to engage. The repair process took approximately fifteen (15) minutes.
11. Ruffin remained on the bow continuing the process of untying the vessel and pulling in the rope alone.
12. Picou testified that due to the rough seas, untying was a more difficult endeavor.
13. Picou further testified that while Ruffin was pulling in the line, with only one engine engaged, he began to lose control of the vessel, and had to move the rudder hard to compensate for the vessel drifting to the right. Picou signaled to Ruffin to wrap up the line, so that he would not lose the line he had already pulled in, but also so that it could be used to help pull the vessel around.
14. Picou testified that he saw the rope come across Ruffin's hand and saw him jerk his hand back during the process.
15. Harris testified that this vessel could be hard to handle at times and that it took most people a couple of weeks to get used to handling it. This was Picou's first trip on the M/V
CRUSADER.
16. Harris further testified that the problem with the actuator was a recurring problem with this vessel. Harris had often reported the problem and requested spare actuators to be kept on board so that it could be replaced when they were not functional.
17. Based upon these factual findings, it is the opinion of this Court that the plaintiffs injuries were caused by the negligence of Gulf Tran as required under the Jones Act. The testimony established that the engine on the vessel went out during the untying process due to a recurring problem with the actuator. Additionally, the testimony provided that the vessel was difficult to handle and that Picou lost control as Ruffin was attempting to pull in the line. The Court hereby finds that Gulf Tran is liable for Jones Act negligence in this regard, as this negligence was a contributing cause to the plaintiffs injuries.
18. The Court, however, finds that the testimony presented does not rise to a level of unseaworthiness of the vessel, especially in light of the heightened causation requirement. The plaintiff was injured while pulling in the line during rough seas and declining weather conditions, as such, this Court can not say that the problems with the vessel were the proximate cause of the plaintiffs injuries.
19. The vessel arrived at Intercoastal City on November 9, 2000. The next day, Safety Manager Kelly Loupe picked the plaintiff up from Intercoastal City and took him to Dr. Melvin Parnell, Jr., an orthopedic surgeon.
20. Plaintiff had filled out an accident report (P-1); however, it was the wrong accident report form for this type of accident, so P-3 was prepared on the way to the doctor's office. Ruffin described the accident in said reports to be that he was "pulling in line and my hand got wrap in rope shoulder and wrist when the boat hit wave and went up causing the injury to my shoulder and wrist." (P-1 and P-3)
21. Kelly Loupe used the information from P-1 and P-3 to fill out P-2.
22. Kelly Loupe testified that Ruffin was complaining of shoulder pain into his finger tips and his back. However, plaintiff did not say he fell against anything. It was additionally stated that on other trips with plaintiff to Dr. Parnell's office, plaintiff complained of pain in his fingers.
23. Kelly Loupe further testified that he put extra actuators on the vessel prior to this accident.
24. Upon his initial visit, Ruffin reported to Dr. Parnell that "his arm got twisted in a line and pulled his arm." (Parnell Depo. p. 8, D-5)
25. Pursuant to the November 10, 2000 visit, Dr. Parnell diagnosed hyperextension injury to the anterior and posterior left shoulder, hyperextension injury to the anterior left elbow, and a left sprained wrist with mild carpel tunnel syndrome. (Parnell Depo. pp. 9-10, 14, D-5)
26. On November 13, 2000, Ruffin complained of pain in the knuckles of his left hand. Dr. Parnell opined that such aching could be caused by the rope being wrapped around his hand causing it to twist and compress; however, knuckle pain would not be related to the ulnar nerve. (Parnell Depo. p. 11, D-5)
27. While Ruffin had a follow-up visit scheduled with Dr. Parnell on November 16, 2000, he presented to Thibodaux Regional Medical Center complaining of significant shoulder and back pain on November 14, 2000. Ruffin was diagnosed with a left shoulder sprain and lumbar strain. (P-8)
28. Ruffin reported doing a little better on a November 21, 2000 visit to Dr. Parnell. (D-5)
29. On November 28, 2000, Ruffin presented to Dr. Parnell exhibiting a decreased range of motion of the fingers of the left hand. (Parnell Depo. p. 38, D-5) Dr. Parnell stated that such a problem would indicate a problem with the radial nerve which can be affected by a hyperextension of the elbow. (Parnell Depo. p. 40, D-5).
30. On November 28, 2000, Dr. Parnell prescribed physical therapy of three (3) times a week for two (2) weeks. (D-5).
31. Ruffin met with Eddie Himel, physical therapist, on December 4, 6, and 8, 2000, reporting pain with symptoms into the hand. (P-9)
32. On December 8, 2000, Ruffin met with Dr. Henry Haydel, at which time Dr. Haydel diagnosed a lumbar and left shoulder strain. (P-12)
33. Ruffin appeared for physical therapy on December 11, 15, and 18, 2000. Eddie Himel sent a note to Dr. Parnell stating that Ruffin was apprehensive but experiencing less pain, with reports of parasthesia into the left hand. (P-9)
34. Dr. Parnell noted on the December 12, 2000 visit that Ruffin noted discomfort at the extremes of motion in the left elbow with a mild decreased range of motion in the left wrist with discomfort at the extremes of motion. Furthermore, Dr. Parnell found a trace of synovitis present over the dorsum of the left hand. Dr. Parnell prescribed an additional two (2) weeks of physical therapy. (D-5)
35. On December 20, 2000, Himel reported that Ruffin was not feeling well in general, but exhibited increased motion while remaining apprehensive, returning again for physical therapy on December 22, 2000. (P-9)
36. Ruffin was still reporting significant pain and little improvement on December 27, 2000. As such, Dr. Parnell arranged for a second opinion with Dr. Cazale setting up an appointment for plaintiff on January 16, 2001. (D-5). Dr. Parnell again prescribed physical therapy for an additional two (2) weeks.
37. Ruffin obtained physical therapy on January 2, 2001. (P-9)
38. January 4, 2001, Ruffin reported left shoulder pain, upper extremity and hand pain to Himel. (P-9)
39. On January 5, 2001, Ruffin again complained of shocking pain and burning to Himel. (P-9)
40. Ruffin again presented for physical therapy on January 8 and 10, 2001. (P-9)
41. On January 16, 2001, plaintiff again visited Dr. Haydel who noted pain in the left shoulder but that the low back pain was better. (P-12)
42. On February 2, 2001, Ruffin was still experiencing pain and burning as noted by Himel "and referred pain to finger." (P-9)
43. Ruffin continued with physical therapy sessions on February 6, 8, 12, 14, 16, 19, 21, 23, 26, and 28, 2001. (P-9)
44. On February 20, 2001, Dr. Haydel saw Ruffin wherein he noted mild low back pain, improvement to the shoulder and released Ruffin for light duty work. (P-12)
45. Ruffin had additional physical therapy sessions on March 2, 5, 7, and 9, 2001. (P-9)
46. On March 12, 2001, Himel noted "hurt L shoulder pain this weekend". (P-9)
47. Additional physical therapy continued on March 14, 16, 19, 23, and 26, 2001. (P-9)
48. Again on March 20, 2001, Ruffin was seen by Dr. Haydel where he continued to suffer with left shoulder pain, but his back was improving. Ruffin was again released for light duty work. (P-12)
49. Ruffin again presented to the Thibodaux Regional Medical Center on March 28, 2001, complaining of pain to the left shoulder, numbness in the left ring and small fingers. (P-8)
50. Tingling in the left ulnar aspect of the hand was noted by Himel at the physical therapy session of March 28, 2001. (P-9)
51. When Dr. Haydel saw Ruffin on April 2, 2001, the left shoulder remained the same; however plaintiff began experiencing numbness in his left hand. A nerve study was ordered wherein he was diagnosed with ulnar nerve syndrome. (P-12)
52. Again on April 11, 2001, Himel noted complaints with the ulnar nerve on left. (P-9)
53. On April 16, 2001, Ruffin continued to report hand symptoms. (P-9)
54. Ruffin continued with the physical therapy regime on April 18, 20, 23, 26, 27, and 30, May 2, 4, 7, 9, 11, 14, 16, 18, 21, 23, 25, 28, and 31, June 4, 6, 8, 11, 13, 15, 18, 21, 22, and 25, July 6, 11, 20, and 30, August 2, 8, 10, 14, 17, 21 and 27, 2001. (P-9)
55. On May 1, 2001, Dr. Haydel noted that the lumbar strain was much improved, but continued pain of the left shoulder strain. It was also noted that Ruffin continued to have numbness in the left ulnar hand, with positive Tinel's of the left medial elbow. (P-12)
56. Ruffin returned to Dr. Haydel on May 29, 2001, where Ruffin was found to be improving with the back and shoulder, while suffering with significant numbness of the left hand. (P-12) No additional findings were made upon the June 26, 2001 visit. (P-12)
57. Ruffin returned to Dr. Parnell on July 5, 2001. The plaintiff reported continued pain behind his left shoulder and elbow, with numbness in all the fingers of the left hand. He reported pain radiating from his shoulder and down his left arm to the entirety of the fingers of the left hand.
58. Dr. Haydel saw Ruffin for the last time on July 31, 2001, noting some pain in the shoulder but overall improved, while Ruffin continues to have numbness in the ulnar distribution of the left hand.
59. Dr. Parnell opined that Ruffin would have attained maximum medical improvement from the November 8, 2000 accident on or about February 1, 2001.
60. Dr. Parnell did not believe that Ruffin's ulnar nerve problems were a result of the November 8, 2000 accident, in that the patient denied any ulnar nerve symptoms initially when seen by him, and the symptoms did not appear until five months after the injury. (Parnell Depo. p. 17, D-5) Dr. Parnell stated that Ruffin had a full range of motion in his fingers and normal sensation in the fingers. (Parnell Depo. p. 18, D-5)
61. Dr. Parnell further opined that the length of time between a trauma and the manifestation of symptoms to be anywhere from three to six weeks. (Parnell Depo. p. 20)
62. This Court however finds an inconsistency in the deposition testimony of Dr. Parnell wherein he stated that Ruffin denied numbness in his thumb, index and long fingers, but told him that he experienced numbness in his ring and little fingers. (Parnell Depo. p. 16)
63. Dr. Haydel specifically testified that it was his opinion that the ulnar nerve injury was related to the accident of November 8, 2000. (P-12)
64. Dr. Haydel opined that the cost for a nerve release would be $1,500.00 to $2,000.00 and would require a couple of months recovery. The plaintiff would be under no restrictions post surgery.
65. Finally, Dr. Haydel stated that upon his last visit in July 2001, plaintiff had not yet reached maximum medical improvement ("MMI") with respect to his shoulder; however, he should be at MMI by the time of trial.
66. The Court, having considered the conflicting testimony of Dr. Parnell and Dr. Haydel, finds the testimony of Dr. Haydel to be supported by the testimony and medical records introduced into evidence. From the time Ruffin first went to see Dr. Parnell, he complained of pain into his finger tips. (See Finding of Fact # 22) While opining that the complaints did not relate to an ulnar nerve injury, Dr. Parnell's medical notes indicate decreased motion in the left fingers and pain in the knuckles. (See Findings of Fact # 26 29) Moreover, the physical therapy notes of Eddie Himel make numerous references to symptoms in the hand from December 2000 through February 2001, culminating in the ultimate diagnosis of the ulnar nerve injury. (See Findings of Fact # 31, 33, 34, 38, 42) As such, it is the finding of this Court that the ulnar nerve injury suffered by the plaintiff was a result of the incident occurring on November 8, 2000.
67. The testimony further establishes that the shoulder injury was likewise a result of the November 8, 2000 incident.
68. Accordingly, the Court finds that the plaintiff is entitled to $55,000.00 in general damages for pain and suffering as a result of the incident of November 8, 2000.
69. The medical bills presented to the Court at the trial in this matter indicate that the plaintiff incurred $10,141.02 in medical expenses. (P-7) Accordingly, the Court awards the plaintiff damages for the reimbursement of medical expenses incurred as a result of the November 8, 2000 incident in the amount of $10,141.02.
70. The testimony of Dr. Haydel at trial further provided that the surgical costs required for treatment of the ulnar nerve injury would cost $1,500.00 to $2,000.00. As this is the only testimony or evidence submitted with regard to future medical costs, the Court awards the plaintiff $2,000.00 for future medical expenses.
71. With respect to the plaintiffs claim for lost wages, while wage documentation was submitted for 2000, this Court notes that there was no other documentary evidence nor expert testimony submitted with respect to the calculation of said lost wages. (P-6) The plaintiff contends that he is entitled to $11,088.00 for the time period between the accident, November 8, 2000, and the date he was released for light duty work, May 29, 2001. Additionally, he seeks $834.00 per month for the time period commencing May 30, 2001 to run through the point in time in which he is authorized for surgery, with an additional $3,482.00 for the two months in which he will have to recuperate from surgery. The Court, however, finds that these figures neither take into account taxes, nor the income earned by the plaintiff in his lawn care work. As such, the Court accepts the yearly salary as calculated by the defense of $18,416.51 per year. The testimony and evidence show that plaintiff was released for light duty work on February 20, 2001. (See, Finding of Fact #44) Plaintiff, therefore, is entitled to $6,138.84, which represents four (4) months salary for the period of time between the accident and when he was released for light duty work. From late February 2001 through the present, the plaintiff was released for light duty work and did in fact do some work, including operating a lawn care business resulting in income which would offset his lost income for that time period. As the Court does not have specific enough information to determine what amounts were actually paid to plaintiff during this time period, the Court awards plaintiff $600.00 a month for that sixteen (16) month time period, which totals $9,600.00. Moreover, the Court will award an additional S3,069.42, for the two (2) months in which plaintiff will need to recuperate from the surgery.
$18,416.51 divided by 12 months equals $1,534.71 per month. $1,534.71 multiplied by four (4) months equals $6,138.84.
This figure was arrived upon by approximating the $1,500.00 per month plaintiff would have earned had he not been injured minus $900.00 a month which could have been earned performing a light duty job at minimum wage, for a loss of $600.00 per month.
$600.00 per month multiplied by sixteen (16) months equals $9,600.00.
$1,534.71 multiplied by two (2) months equals $3,069.42.
72. It is the opinion of this Court that while the plaintiffs shoulder injury had reached MMI at the time of trial, the plaintiff continued to suffer with the ulnar nerve injury and will not reach MMI with respect to that injury until two months post-surgery.
CONCLUSIONS OF LAW
1. It is undisputed that the plaintiff was a Jones Act seaman at the time of the above-mentioned accident.
2. It is also undisputed that the plaintiff was injured in the course and scope of his employment with Gulf Tran and his work upon the M/V CRUSADER (the extent of those injuries, however is in dispute).
3. The Jones Act provides a cause of action in negligence for a seaman injured in the course of his employment against his maritime employer. A seaman is entitled to recover if the employer's negligence played any part, even the slightest, in producing the injury. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997), see also, Johnson v. Offshore Express, Inc. 845 F.2d 1347 (5th Cir. 1987), cert denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988).
4. A negligence claim requires proof that (1) defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injuries, and (4) the plaintiff suffered actual damage. See, Uncle Ben's Int'l Div. of Uncle Ben's Inc. v. Hapag-Lloyd Aktiengesellschaft, 855 F.2d 215, 216 (5th Cir. 1988).
5. A seaman is obligated under the Jones Act to act with ordinary prudence under the circumstances. The circumstances of a seaman's employment include not only his reliance on his employer to provide a safe work environment, but also his own experience, training, or education. The reasonable person standard, therefore, and a Jones Act negligence action becomes one of the reasonable seamen in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seamen only for their gross negligence. Crawford v. Falcon Drilling Co., 131 F.3d 1120 (5th Cir. 1997); and Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997).
6. A vessel owner has an absolute, non-delegable duty to provide a seaworthy vessel to crew members. A vessel is unseaworthy unless all of its appurtenances and crew are reasonably fit and safe for their intended purpose. To prevail on an unseaworthiness claim, a seaman must prove that the unseaworthy condition was the proximate cause of his injury. In other words, the plaintiff must prove that the unseaworthy condition played a substantial part in bringing about or actually causing injury and that injury was either a direct result or reasonably probable consequence of the unseaworthiness. See, Johnson v. Offshore, supra.
7. Comparative negligence applies to reduce a seaman s recovery on a Jones Act claim and an unseaworthiness claim. Miles v. Melrose, 882 F.2d 976 (5th Cir. 1989), aff'd, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990).
8. The effect of finding negligence on the part of a seaman seeking recovery in a seaworthiness action or a Jones Act claim is only to reduce damages proportionately, but not to bar recovery. A seaman's negligence will not defeat his claim under the Jones Act or general maritime law but may be considered as comparative negligence to mitigate damages in proportion to the degree of his negligence. Contributory negligence, however gross, does not bar recovery but only mitigates damages. Id.
9. An award for lost wages under the general maritime law must be based upon after-tax earnings. Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252 (5th Cir. 1990).
10. Future lost wage calculations in maritime cases are to be performed in compliance with the method set forth in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983). That case established a four step process for determining lost wages as follows; (1) estimate the loss of worklife resulting from injury; (2) calculate the lost income stream; (3) compute the total amount of damages; and, (4) discount the total amount to its present value. Id. Lost income stream is calculated by adding gross income at the time of the injury to other income such as fringe benefits, then subtracting required payments by the wage earner such as taxes and work expenses. The paramount concern of a court in awarding damages for lost future earnings is to provide the injured seaman with a sum of money that will, in fact, replace the money that he would have earned. Id.
11. Based upon Findings of Fact #17, 18, 66 — 71, Briannell Ruffin is entitled to recover the following damages:
Past Medical Expenses $10,141.02
Future Medical Expenses $ 2,000.00
Lost Income $18,808.26
General Damages $55,000.00
Total Damages $85,949.28
12. Maintenance and cure are owed to a seaman automatically without regard to fault for injuries and/or illness arising during the course of his service aboard the vessel, unless the injury or illness resulted from his engagement in gross misconduct. Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730-33, 63 S.Ct. 930, 87 L.Ed. 1107 (1943); Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 527-29, 58 S.Ct. 651, 82 L.Ed. 993 (1938).
13. Maintenance and cure continues until such time as the seaman's incapacity is actually diagnosed to be permanent. See, Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949); and Vella v. Ford Motor Co., 421 U.S. 1, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1974).
14. Maximum medical improvement is the point beyond which it is not reasonably possible that medical treatment will "reduce [the amount of the seaman's] disability," be "curative," "better the seaman's condition," or "improve [his] health;" until that time, he has not reached MMI. Vella v. Ford Motor Co., 421 U.S. 1, 5, 95 S.Ct. 1381, 43 L.Ed.2d 682 (1974); Gaspard v. Taylor Driving Salvage Co., 649 F.2d 372, 374 n. 3 (5th Cir. 1981); and Pelotto v. L N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979).
15. When there are ambiguities or doubts as to a seaman's right to receive maintenance and cure, they are to be resolved in favor of the seaman. Vaughan v. Atkinson, 369 U.S. 527, 532, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962).
16. However, the "weight to be accorded true opinion evidence is always for the jury or other trier of the facts." Elliott v. Massachusetts Mut. Life Ins. Co., 388 F.2d 362, 365-66 (5th Cir. 1968) citing Mound Co. v. Texas Co., 298 F.2d 905, 910 (5th Cir. 1962) and New York Life Ins. Co. v. Johnston, 256 F.2d 115, 118 (5th Cir. 1958).
17. Conflicting diagnoses and prognoses of various physicians present a question to be determined by the trier of fact in connection with the entitlement to maintenance and cure benefits and whether an employer's termination of maintenance and cure benefits was arbitrary or capricious. Tullos v. Resource Drilling. Inc., 750 F.2d 380 (5th Cir. 1985).
18. Payments of maintenance and cure may be terminated when it is determined that the seaman has reached MMI. Considering the findings of fact made above, this Court concludes that the plaintiff will not reach MMI until two (2) months post surgery. As such, plaintiff is entitled to the continuation of maintenance and cure.
19. The Court must however determine the extent to which such an award would include amounts which are the substantial equivalent to those awarded for Jones Act negligence in order to eliminate the likelihood of double recovery. Colburn v. Bunge Towing. Inc., 883 F.2d 372 (5th Cir. 1989) citing Pelotto v. L N Towing Co., 604 F.2d 396, 404 (5th Cir. 1979).
20. Jurisprudence has made clear that an award of maintenance in addition to a general damage award that included past and future wages is proper. Colburn, supra.
21. A cure award cannot duplicate tort damages, as such, a seaman can only recover once for his medical expenses. Boudreaux v. U.S., 280 F.3d 461 (5th Cir. 2002) citing Brister v. A.W.I., Inc. 946 F.2d 350, 361 (5th Cir. 1991).
22. The Court, therefore, finds that the plaintiff is entitled to maintenance at the rate of $l5.00 per day from February 22, 2000 until he reaches MMI two months post surgery. Because the date for surgery is undetermined at this point, the Court will award maintenance to continue for three (3) months from the date of this judgment to allow thirty (30) days for the surgery and two (2) months of post-operative recovery. However, as this Court has awarded plaintiff past and future medical expenses, the defendant is relieved of any farther cure payments.
23. Moreover, the Court believes that the decision to terminate the maintenance and cure payments to the plaintiff was not arbitrary or capricious, as the defendant was justified in accepting the medical opinion of Dr. Parnell. As such, plaintiffs claim for punitive damages is denied.
24. Under the Jones Act, recovery of prejudgment interest is not permitted. Colburn, supra citing Theriot v. J. Ray McDermott Co., Inc., 742 F.2d 877 (5th Cir. 1984). Accordingly, interest will be awarded from the date of judgment.
25. All court costs are taxed against the defendant.