Opinion
Civil Action No. 00-2025 Section "J", MAG. (1)
June 17, 2002
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter came on for trial before the Court, sitting in Admiralty without a jury, on May 13 and 14, 2002. At the conclusion of the trial, and upon consideration of all of the evidence and arguments of counsel, the Court rendered its oral findings of fact and conclusions of law on the issues of liability and medical causation. In summary, the Court found that plaintiff, Timothy Smith, was injured on December 28, 1998, while employed by SeaRiver Maritime, Inc. as a tankerman aboard its vessel, the S/R LAKE CHARLES. Liability was apportioned 75% to SeaRiver as the Jones Act employer, and 25% to Timothy Smith. The remaining defendants, Motiva Enterprises, LLC and Petroleum Service Corporation, were found not responsible for the injury to Mr. Smith.
The Court further found that as a result of his accident on December 28, 1998, Timothy Smith sustained an aggravation of a pre-existing condition of spondylolysis, which resulted in spondylolisthesis or slippage of the lumbar vertebral body at L4-L5. In addition, Mr. Smith sustained a disc injury at that level of his lumbar spine, all of which ultimately required a lumbar laminectomy to decompress the L-4 nerve root, together with a lumbar fusion with instrumentation (pedicle screws) of L4-L5. As a consequence of his injury, Mr. Smith has a 20% anatomical disability and is functionally disabled from returning to his former employment as a tankerman, deckhand or any other manual labor. There is no doubt that Timothy Smith has sustained a substantial impairment of his earning capacity and has physical limitations on lifting on a repetitive basis more than twenty-five or thirty pounds, perhaps occasionally lifting up to fifty pounds; and to avoid extended sitting, standing, stooping, bending or climbing. In addition to his physical limitations, Timothy Smith has academic and vocational limitations which limit his future employment to minimum wage jobs without fringe benefits. The Court now renders its findings of fact and conclusions of law on the remaining damage issues, in accordance with Fed.R.Civ.P. 52(a).
FINDINGS OF FACT 1.
Timothy Smith was born on January 16, 1963, and raised in D'Lo, Mississippi. He has lived in the same area his entire life. Smith is married and has an eight year old son.
2.
Timothy Smith graduated from high school and then attended the University of Southern Mississippi at Hattiesburg on a football scholarship. He spent five years in college, but did not obtain a degree. His major was "Outdoor Recreation." His college transcript shows very poor grades, and it is apparent that his football talents were the primary reason he was able to stay in school for five years.
3.
After leaving college without a degree, Timothy Smith had a series of different jobs involving primarily manual labor until he was hired by SeaRiver Maritime as an apprentice tankerman (deckhand) in 1994. Before being hired by SeaRiver, Mr. Smith underwent a pre-employment physical examination and was cleared for "unrestricted manual labor." Smith worked his way up from apprentice tankerman/deckhand to Senior Tankerman, the position he held at the time of his injury. In fact, at the time of his accident, Smith had completed training as a mate, and was acting as "step-up mate" on the night he was injured. He testified that his ultimate goal was to become a pilot or captain. All of his performance evaluations were good.
4.
Following his injury on December 28, 1998, Mr. Smith continued to work for SeaRiver for a period of time, and in early January, 1999, was temporarily transferred to the S/R MEMPHIS. While aboard that vessel, on January 9, 1999, Smith continued to have problems performing his usual duties and informed the Captain of the vessel that he had been experiencing back pain for about seven days. The Captain telephoned Medical Advisory Systems, a "telemedicine" service, and spoke with Dr. John Marlar. Dr. Marlar did not speak directly with Smith, but instead asked the Captain about the nature of Smith's symptoms and had the Captain perform some basic clinical tests and report his findings. Dr. Marlar diagnosed a muscle strain of the right paralumbar muscles and prescribed ibuprofen or aspirin, use of a heating pad and "bedrest for a couple of days". Although the Captain gave Smith aspirin, he did not tell Smith about the doctor's advice for bedrest. Smith continued to perform his regular duties, but with pain.
More likely than not, this explains the "inconsistent" medical histories recorded by various medical providers.
5.
When the vessel arrived at Baytown, Texas, Mr. Smith was sent ashore to see a doctor at a local clinic. Ultimately, Smith arrived home and saw his family physician, Dr. Chiemprabha on January 26, 1999. Dr. Chiemprabha diagnosed a sprain of the right paralumbar spine. He treated Smith with injections of xylocaine and celestone, and prescribed anti-inflammatories and muscle relaxants. Smith returned again to Dr. Chiemprabha on February 2 and 12, 1999, with essentially the same symptoms and the same pain. At his own request, Smith was released to "light work."6.
SeaRiver next referred Smith to Dr. Ronald Heisey, an orthopedic surgeon in the Houston, Texas area. Dr. Heisey's physical examination on February 16, 1999, revealed tenderness to palpation on the right side of the lower back, with some muscle spasm. The straight leg raising test was positive at sixty degrees on the right side and there was hyporeflexia (decreased reflex) in the knee jerk test. Diagnostic tests were ordered and revealed Grade I spondylolisthesis at L4-L5. The diagnosis was acute lumbosacral strain with possible disc herniation and nerve root irritation. Dr. Heisey felt that Smith would probably require surgery (laminectomy to decompress the nerve root and probable fusion) and recommended he not return to his regular work as a tankerman. Dr. Heisey testified that even following a successful fusion, Mr. Smith would be restricted to "light duty" and advised him to avoid heavy physical labor, because once one level of the spine is fused, it puts increased stress on the levels immediately above and below the fused level.
7.
Mr. Smith next saw Dr. Ernest Rankin, a family doctor in Jackson, Mississippi, on March 22, 1999. Dr. Rankin found that Mr. Smith was "quite spastic, had a lot of muscle spasm with his body tilted . . . to the left." He suggested that Smith be seen by a neurosurgeon.
8.
After seeing the neurosurgeon one time, Smith was referred to Dr. E. Gregory Wood, an orthopedic surgeon in Jackson, Mississippi, on August 20, 1999. Dr. Wood's examination revealed right low back pain. X-rays showed spondylolisthesis (slippage) of L4 onto L5. Dr. Wood ordered a myelogram and post-myelogram CT scan. The results confirmed isthmic spondylolisthesis producing pressure on the L4 nerve root. Surgery was performed on September 21, 1999, consisting of a decompression (laminectomy) and fusion at L4-L5. Smith's last visit to Dr. Wood was in February, 2000, at which time he was referred for "work hardening". Dr. Wood's opinion was that the accident of December 28, 1998 had aggravated a pre-existing spondylolysis condition, making it symptomatic and causing the need for surgery. Dr. Wood found Mr. Smith to be a credible and honest patient who did not appear to amplify his symptoms (i.e., he was not a malingerer).
9.
Post-operatively Smith was doing better but still had back pain, especially with increased activity. Dr. Wood referred Mr. Smith to Dr. Rahul Vohra, a specialist in physical medicine and rehabilitation. Dr. Vohra saw Mr. Smith on several occasions between May 2000 and July 2001. Physical examination by Dr. Vohra revealed lateral shift at L4 while standing, meaning his back was crooked or would not straighten. There was a 25% decrease in lumbar flexion and a 50% decrease in extension. Dr. Vohra prescribed an aggressive therapy program. Dr. Vohra also referred Smith to an anesthesiologist, Dr. Summers, who performed two facet injections for pain. When last seen by Dr. Vohra, Mr. Smith was continuing to have back pain, lumbar spasm and some residual decrease in range of motion (although less than on his initial examination). Dr. Vohra was of the opinion that Smith will probably have chronic low back pain. He assigned a 20% anatomical disability impairment and functional restrictions against frequent lifting of not more than 25 or 30 pounds, with occasional lifting up to 50 pounds; no repetitive bending, stooping, climbing, or continuous standing or sitting.
10.
Timothy Smith sustained injury in an intervening automobile accident in May 1999. The Court concludes that Smith injured his neck in that accident, for which he received several months of conservative treatment. His previous low back injury was not made worse as a result of the automobile accident.
11.
According to the tax returns and W-2 forms introduced into evidence, Timothy Smith earned $31,849 in the calendar year 1998, his last full year of employment. The Court finds that Smith had an earning capacity of $32,000 per annum prior to his injury on December 28, 1998.
There is evidence which might support a higher earning capacity since Smith had completed training as a mate and was acting as a "step up mate" at the time of his injury. His performance evaluations demonstrate that he potentially would become a mate, or higher, if his career on the river had not been prematurely ended by his injury. However, considering the uncertainty of future employment in the maritime industry, the Court finds that Smith's earning capacity of $32,000 is a reasonable basis for calculation of loss of future earnings in this case. This is the basis for the calculations by plaintiffs economist, Dr. Douglas Womack, in his Table 2.D, which the Court has used as a basis for its award of economic damages. The Court finds the report of defendant's expert economist, Dr. Kenneth Boudreaux, to be unreliable and not supported by the credible evidence. For example, Dr. Boudreaux based his calculations on the assumption that Timothy Smith has the capacity in the future to earn between $20,800 and $26,000 per annum, plus fringe benefits. The Court has found that Smith's future earning capacity is limited to minimum wage employment with no fringe benefits. Also, Dr. Boudreaux assumed that Smith has earned a total of $44,256 since the accident. There is no evidence to support that assumption.
12.
The Court was impressed by the testimony of Dr. Neil Gorman, an expert in vocational rehabilitation counseling, who met with and evaluated Timothy Smith on two occasions, first in May 2000 and again in June 2001. His academic testing of Mr. Smith showed WRAT (Wide Range Achievement Test) at the third and fourth grade performance levels. Dr. Gorman reviewed Smith's college transcript from USM and found it to be consistent with his own test results. Dr. Gorman testified that Smith would not qualify to re-enroll in college or obtain a degree. Smith is not a candidate for voc-tech school. In Dr. Gorman's opinion, Smith will be restricted to light work in the future, probably at minimum wage jobs (without fringe benefits). Smith is "academically impaired" and has a "borderline IQ" (his IQ was 79). Overall, the Court found Dr. Gorman's testimony and opinions to be more credible and more reliable than those offered by the opposing vocational expert, Nancy Favaloro. It is noteworthy, however, than Ms. Favaloro's testing showed Mr. Smith to be functioning at the 1 percentile level (meaning that 99% of persons with his educational level scored higher than he did).13.
As a result of his injury, Timothy Smith as sustained economic losses in the amount of $115,584 through the date of trial.
Economic report of Dr. Douglas Womack (Exh. 50), at Table 2.D.
14.
Mr. Smith has sustained an impairment of his future earning capacity which has a present value of $417,851.15.
Mr. Smith was paid maintenance benefits in the total amount of $16,780 through October 31, 2001. There is no claim for additional maintenance.16.
SeaRiver has paid medical expenses on behalf of Mr. Smith in the total amount of $38,338.81, which the parties believe is all of the medical expenses owed. Therefore there is no claim for additional cure or medical expenses. However, the parties have stipulated that in the event there is any amount still owed for medical treatment received by Mr. Smith, the employer SeaRiver will be responsible for payment of same.
17.
In addition to the maintenance and cure benefits which were paid, Mr. Smith also received disability benefits in the total sum of $25,310. These benefits were totally funded by SeaRiver, pursuant to a plan under which benefits for work-related disabilities are not based on length of service.
This total includes $19,902 for short term disability benefits and $5,408 for long term disability benefits.
18.
Timothy Smith was injured on December 28, 1998. His trial was concluded on May 14, 2002. Smith is presently 39 years of age. He has a life expectancy of approximately 32 years. He is entitled to be compensated for physical and mental pain and suffering, and permanent disability, both past and future. Considering all of the evidence at trial, the Court concludes that a reasonable award for past pain, suffering and disability is $150,000. Considering Smith's young age and permanent disability, the Court finds that a reasonable award for future pain, suffering and disability is $150,000.
CONCLUSIONS OF LAW 1.
This Court has jurisdiction of this matter under the Jones Act, 46 U.S.C. § 688, and under its Admiralty and Maritime jurisdiction, 28 U.S.C. § 1333(1).
2.
Timothy Smith sustained damages in the total amount of $833,435 as a result of his injury on December 28, 1998 while employed by SeaRiver as a senior tankerman aboard the S/R LAKE CHARLES.
3.
Because Smith received disability benefits in the sum of $25,310 pursuant to a plan fully funded by his employer, unrelated to any collective bargaining agreement and pursuant to which benefits for work-related disabilities are not based on length of service, SeaRiver is entitled to a credit in this amount against plaintiffs past economic damages. Phillips v. Western Co. of N. America, 953 F.2d 923 (5th Cir. 1992).
4.
Smith's recovery must be reduced for his 25% comparative fault.
5.
Accordingly, Smith is awarded a total of $606,094 for the damages he has sustained.
Total damages of $833,435, less credit of $25,310 for disability payments, reduced by 25% comparative fault, equals total award of $606,094.
6.
Under general maritime law, pre-judgment interest at the rate of six percent per annum is awarded on all sums for past damages, from December 28, 1998 until paid; post-judgment interest at the same rate is awarded from date of judgment on all sums awarded for future damages. Doucet v. Wheless Drilling Co., 476 F.2d 336 (5th Cir. 1972); Williams v. Reading Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985); Verdin v. C B Boat Co. Inc., 860 F.2d 150, 158 (5th Cir. 1988).7.
All court costs are taxed against defendant SeaRiver.