Opinion
CIVIL ACTION NO. 04-0009 SECTION "C" (3).
November 16, 2004
OPINION
This matter was tried before the Court without a jury on November 4, 2004, and taken under advisement. Having considered the testimony and evidence adduced at trial, the record and the law, the Court finds in favor of Defendant/counter-claim Plaintiff Desmond Bowman with respect to his claim for maintenance and cure and attorney's fees, and in favor of Plaintiff/counter-claim Defendant Weeks Marine with respect to Bowman's negligence and unseaworthiness claims.
The Defendant, Desmond Bowman, is a seaman who was employed by Weeks Marine in the service of the tug M/V ELIZABETH. Bowman alleges that he was injured while working on the M/V ELIZABETH on November 28, 2003, and again on December 5, 2003. Weeks Marine brought suit seeking a declaratory judgment, pursuant to 28 U.S.C. § 2201, with respect to its obligation, if any, to provide certain maintenance and cure benefits to Bowman. Bowman then brought a counterclaim demanding maintenance and cure pursuant to general maritime law, and also alleging that Weeks Marine was the negligent cause of the injuries, resulting in $2,000,000 in damages and that the ELIZABETH was unseaworthy.
Bowman claims that his right shoulder injury arose from an incident at the stem of the tug on November 28, 2003. Weeks Marine asserts that Bowman did not slip and fall, did not report any shoulder injury, did not in fact suffer a shoulder injury, and, even if he did, it was not due to negligence on the part of Weeks Marine.
The ELIZABETH's mate Paul Eisenhardt witnessed the incident on November 28. Eisenhardt testified to seeing Bowman trip over a "staple" on the stern deck and stumble backwards, with his left hand making contact with the deck to catch himself. Eisenhardt added that, contrary to Bowman's assertions, there was no ice on the deck at the time of the incident. After regaining his balance, according to Eisenhardt, Bowman immediately sprung back up and continued working. He appeared to be concerned that Captain John Sorrentino had seen him stumble. Eisenhardt twice asked Bowman if he was alright, after the incident and again after the shift was over, and both times Bowman said he was fine.
Captain John Louis Sorrentino did not witness the incident, but testified that two or three days afterwards he noticed Bowman having unusual difficulty handling the lines. Sorrentino inquired about the problem, and Bowman responded that he had some pain in his shoulder, but did not want to see a doctor. There was no discussion about filling out an accident report. Seaman Andrew Seymour, who began work on the ELIZABETH on approximately November 30, also testified to observing Bowman have difficulty throwing the lines. Bowman told Seymour that he was having trouble due to his earlier fall on the stern.
In the early morning hours of December 5, 2003, Bowman was assigned the task of boarding the vessel Weeks 258 and attaching a mooring line strung from the ELIZABETH. Bowman was directed to grapple the line as close to the eye as possible so as to lessen the amount of weight he would be lifting. Unable to do so, Bowman grappled the line from the center and completed the task. Arthur Basinski, mate on the ELIZABETH, testified that he could not see Bowman for the duration of this task, but did notice that once Bowman finished the job and returned into Basinski's view, hew was hobbling back to the tug. Seymour also witnessed Bowman walking "gingerly" and assisted him directly to his bunk. When Seymour would go back to check on him, Bowman would complain to Seymour about injuring his back.
Bowman's condition was reported to Captain Sorrentino, who arranged for a crew boat to take Bowman to shore in Baltimore for a medical evaluation. Bowman was first taken to Johns Hopkins Bayview Medical Center, where he complained of "lumbar and right shoulder pain" but was unable to see a doctor. That same day, December 5, Weeks Marine sent Bowman to Concentra Medical Center. Concentra diagnosed a treatment plan for his back, but reported that Weeks Marine would not authorize treatment for the shoulder injury because Bowman had not filed an accident report for the November 28 incident. Afterwards, Bowman was sent to Weeks Marine's Baltimore office, where he filled out an accident report, both in English and Spanish, for the back injury. Bowman testifies that Weeks Marine told him he could not fill out an injury report for his shoulder at that time, and would have to return to the ELIZABETH to do so. Bowman did not question why he could fill out an accident report for his back but not for his shoulder at that time. Bowman testifies that he was given permission to go where he wanted at that point, so he returned to New Orleans. Weeks Marine, in contrast, contends that Bowman simply abandoned his vessel, thereby resigning from his employment.
Upon returning to New Orleans, Bowman sought treatment for both his shoulder and back from Dr. Alberto Arillaga on December 9. After being examined, Bowman began a regular treatment program with Dr. Arillaga for his shoulder and back that would continue through March 9, 2004. Meanwhile, Bowman received a letter from Weeks Marine directing him to see Dr. A.D. Walker about his injuries on December 29, 2003. Erroneously believing that Bowman did not follow through on his appointment with Dr. Walker, Weeks Marine filed its suit against Bowman on January 2, 2004 seeking declaratory relief. Bowman did in fact visit Dr. Walker on December 29, and again on January 12 for an MRI on his back and shoulder, and January 19. Dr. Walker wrote in his notes that the back MRI indicates that Bowman suffered from a soft-tissue lumbar strain that "would appear to be related to the accident of December 5, 2003, involving the mooring line. A point of maximum medical benefit would be anticipated two to three months from the date of accident with the appropriate treatment including two or three weeks of supervised therapy." Dr. Walker did not draw any conclusions about Bowman's shoulder injury because there was no accident report stemming from the November 28, 2003 incident, but he did note that the shoulder MRI "reveals findings consistent with inflammation of the acromiclavicular joint and some signal changes in the rotator cuff suggesting some injury or tendonitis in this region." At trial, Weeks Marine's Corporate Risk Manager, Thomas Langan, acknowledged that Dr. Walker recognized that Bowman had injured his back at the very least, and yet Langan still believed that the injury — both injuries — were fabricated.
Bowman received physical therapy from one Nicholas Lorusso from March to September, 2004, and also sought treatment from Dr. Daniel Seltzer, who feels that Bowman requires surgery on his shoulder.
Maintenance and Cure
Under general maritime law, a seaman such as Desmond Bowman is entitled, generally, to maintenance and cure for injuries that occur in the service of the vessel. Weeks Marine believes that Bowman is fabricating both the injury to his shoulder and his back, and accordingly has paid for some medical examinations, but not maintenance or cure, for either injury.
Mr. Langan testified that he did not feel that Bowman injured his shoulder primarily because 1) witness accounts indicate that Bowman only stumbled without falling, 2) Bowman did not complain of an injury or request a doctor at the time of the incident, 3) he continued working, and 4) he did not fill out an injury report as he is required to do. Langan's presumptions and conclusions, however, are problematic. Langan appeared very defensive while testifying at the trial and continually minimized the significance of evidence contrary to his opinion, while overemphasizing the importance, for example, of Bowman's failure to fill out an injury report. Langan admitted that Bowman took a physical at Concentra Medical Center prior to starting work on the ELIZABETH, approximately a week before the incident November 28, and received a clean bill of health. Langan also admitted, and Captain Sorrentino testified, that Captain Sorrentino noticed no deficiencies on Bowman's physical capabilities prior to November 28, but did see problems afterwards. This evidence, in conjunction with the reports of the various doctors who examined Bowman, persuades the Court that Bowman was in good health when he began work on the ELIZABETH, and injured his shoulder soon afterwards, while in service of the vessel.
The Court finds Bowman to be a credible witness, which is to say he impressed the Court as being a hard worker who would attempt to work through any injuries if possible. With regard to the stumbling incident on November 28, the Court has no trouble believing that Bowman sprang up and continued working without complaint so as not to appear as a liability to Captain Sorrentino, with whom Bowman had a tension-filled relationship, according to Eisenhardt, due to Bowman's language barrier. That Bowman contradicts Eisenhardt and testified to having no problems at all working for Captain Sorrentino only further demonstrates, the Court finds, that Bowman sought to defuse tensions on the ELIZABETH and go about his work. Accordingly, Bowman's failure to fill out an injury report at that time — essentially a failure to complain — is not dispositive. Given the totality of the circumstances, Langan gives this omission far too much weight in his determination to deny the existence of a shoulder injury.
Similarly, the Court recognizes that Paul Eisenhardt testified that Bowman stumbled and landed on his left hand, not his right hand, but this discrepancy alone cannot defeat the weight of the evidence. The possibility that Eisenhardt simply got it backwards cannot be discounted given the medical evidence which, again, convincingly demonstrates that Bowman began work in the ELIZABETH in good health and subsequently injured his shoulder. Furthermore, Dr. Walker testified that Bowman described to him a particular kind of injury, a "foush" (fall with an outstretched hand) injury, which is consistent with Eisenhardt's description, save for the detail about which hand Bowman fell on.
In addition, the Court also finds Bowman credible when he testified to being told that he must return to the ELIZABETH to fill out an accident report for his shoulder, despite being able to complete a report for his back injury in Weeks Marine's office in Baltimore. Given Langan's credibility problems and his single-minded emphasis on the need for documenting injuries with a paper-trial, the Court accepts that Weeks Marine would utilize tactics to make it difficult for an employee to retroactively fill out an injury report in the hope that the matter would simply be dropped or that maintenance and cure could more easily be denied.
Many of Langan's reasons for disbelieving Bowman's shoulder injury are not applicable for the back injury that occurred on December 5, and yet believes this injury is fabricated as well. Unlike the stumbling incident on November 28, on December 5 Bowman did complain about his injury, he did complete an injury report, and was unable to continue working. Nevertheless, Langan testified that he denied maintenance and cure for the back injury based on "conflicts in the testimony." For example, Langan testified that Bowman, in his injury report, said he reported his injury to Captain Sorrentino, while Sorrentino "specifically denied' that. In fact, Langan recounted, Bowman did not say anything to the captain upon returning to the ELIZABETH from the Weeks 258, thought he had the chance, but instead went straight to his bunk to lie down, and it was Seymour who later notified Sorrentino of Bowman's condition. Another example of a "conflict" is Bowman contradicting himself as to the exact point in time that his back "popped" while pulling the mooring line. Langan's emphatic reliance on such inconsistencies, particularly the inconsistency with the way the injury was reported to Captain Sorrentino, is unfounded. The Court regards such inconsistencies as minor in comparison to the medical evidence, which even Langan admits indicated that Bowman had injured his back to some degree. The relevance Langan attaches to the fact that Bowman briefly disappeared from sight when pulling the mooring line, presumably giving him an opportunity to feign injury, is also unfounded. The Court does not believe that Bowman was fabricating his injury, and thus has little concern whether the precise moment of injury was witnessed.
If a shipowner, in failing to pay maintenance and cure, has not only been unreasonable but has been more egregiously at fault and denied maintenance and cure persistently or in an arbitrary and capricious manner, he will be liable for attorney's fees. See Morales v. Garijak, Inc., 824 F.2d 1355, 1358 (5th Cir. 1987). Weeks Marine claims that its denial of maintenance and cure for Bowman's back injury was reasonable. Weeks Marine notes that it did not reject the claim out of hand, but conducted a thorough investigation and even paid for Bowman's initial medical evaluations. But the fact remains that Weeks Marine admits to having continued to deny Bowman maintenance and cure even after their own doctor, Dr. Walker, diagnosed Bowman with a back injury and recommended treatment. Weeks Marine's decision at that point to flaunt medical evidence and instead base its decision to deny maintenance and cure on the arbitrary inconsistencies indicated above is without reasonable justification. The Court finds that though Weeks Marine may have reasonably denied maintenance and cure at the outset of its investigation, to persist in its denials in the face of mounting medical evidence and through the course of a trial was arbitrary and capricious.
The Court finds that Desmond Bowman injured his shoulder and back in the service of the ELIZABETH, and acted arbitrarily and capriciously in denying maintenance and cure to Bowman for his back injury. Accordingly, Weeks Marine is obligated to pay maintenance and cure to Bowman for the injuries to both his shoulder and back as well as his attorney's fees. Negligence and Unseaworthiness
Bowman claims that the ELIZABETH was unseaworthy because there was no non-skid surface on the deck of the ELIZABETH at the time of his stumble, nor was there any salt or sand to prevent the ice that was allegedly present from forming. Weeks Marine was negligent, Bowman alleges, for knowingly allowing such conditions that caused Bowman to injure his shoulder. Bowman further alleges that the ELIZABETH was unseaworthy because it did not have sufficient crew available to assist Bowman pull the mooring line on December 5, that Weeks Marine was negligent for not providing such assistance that would have prevented him from injuring his back, and that Weeks Marine was negligent for keeping an injured employee working.
The Court finds that, on balance, the evidence does not support Bowman's allegations of negligence or unseaworthiness with respect to the circumstances surrounding Bowman's stumble on the stern of the ELIZABETH on November 28, 2003. Bowman himself appears to admit that he tripped over the staple on the deck of the stern. Bowman's testimony that there was ice on the deck conflicts with that of Eisenhardt and Captain Sorrentino, who say there was none, but in any event the Court finds that it was Bowman's responsibility as deck hand to clear any hazards on deck. Further, the Court accepts Eisenhardt's testimony that the ELIZABETH had "ice melt" salt on standby, but not on hand on deck, and finds that this situation did not render the vessel unseaworthy under these circumstances.
As with the question of whether ice had formed on the deck, the testimony also conflicts over whether the surface of the deck was treated with an anti-skid paint. Bowman testifies that there was no such paint, or that the surface had been worn smooth, while Eisenhardt testified that he himself had assisted in applying the anti-skid surface on the deck only two weeks prior to the incident. Accordingly, the Court cannot conclude that Weeks Marine negligently permitted hazardous conditions to exist on the surface of the deck.
The evidence also cannot support a finding of unseaworthiness or negligence in conjunction with the injury accident on December 5. Bowman's unseaworthiness and negligence claims stem from the premise that the act he was performing at the time he hurt his back, pulling up a mooring line, was a two person job that he was forced to perform by himself. Arthur Basinski, who assigned the task to Bowman, testified that it was a one person job, though a second crew-member might lend a hand if convenient. Andrew Seymour testified that it was a job he has performed by himself in his ordinary course of duties. In lieu of other evidence, the Court accepts the testimony of Basinski and Seymour and finds that pulling up a mooring line is a one person job. Consequently, the ELIZABETH cannot be said to be unseaworthy for allocating only one deck hand to the task, nor can Weeks Marine be said to be negligent for having Bowman attempt it on his own.
Finally, Bowman contends that Weeks Marine was negligent for having him work while injured. Bowman cites a recent Fifth Circuit case as precedent, Rivera v. Union Pacific R.R. Co., 378 F.3d 501 (5th Cir. 2004). In Rivera, the employee reported his injury to his supervisor saw a chiropractor. The chiropractor restricted the employee from lifting anything exceeding fifteen pounds for two weeks. The employer was found negligent for having the employee exceed the restrictions within that time period. The instant facts are distinguishable. Bowman did not report or complain of his injured shoulder prior to December 5 other than to assure his Captain, when questioned, that his shoulder was fine and he taking over the counter medicine. Unlike Rivera, Bowman did not see a doctor and thus was not ordered to curtail his duties. The Union Pacific Railroad Company had clear and explicit notice of its employee's injury, in sharp contrast to the uncertain notice given to Weeks Marine prior to December 5. While the question of notice does not affect the actual existence of Bowman's shoulder injury, it does inform the issue of Weeks Marine's liability. The notice of injury provided to Weeks Marine was not sufficient under Rivera to give rise to negligence.
Accordingly,
IT IS ORDERED that judgment be entered in favor the Defendant, Desmond Bowman, with respect to his claim for maintenance and cure and attorney's fees, and in favor Plaintiff/Cross-claim defendant Weeks Marine with respect to Bowman's negligence claims.