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Williams v. Central Contracting & Marine, Inc.

United States District Court, S.D. Illinois

April 3, 2018

TIMOTHY W. WILLIAMS, Plaintiff,
v.
CENTRAL CONTRACTING & MARINE, INC. and M/V STACEY DIANNE, in rem, Defendants.

          MEMORANDUM AND ORDER

          STACI M. YANDLE UNITED STATES DISTRICT JUDGE.

         Plaintiff Timothy W. Williams filed this action against his employer, Central Contracting and Marine, Inc. (“CCM”) pursuant to the Merchant Marine Act of 1920 (commonly known as the “Jones Act”), 46 U.S.C. § 30104, and the general maritime law, arising from injuries he sustained while working on one of CCM's vessels. Plaintiff designated this matter as an admiralty or maritime case under Federal Rule of Civil Procedure 9(h). The Court conducted a three-day bench trial (Docs. 67-69) and now makes the following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).

         FINDINGS OF FACTS

         Prior Injuries and Treatment

         Williams had a history of back problems before his employment with CCM and made at least two prior claims for back injuries suffered at work-one in the mid-1990s against Anchor Moving and Storage, and one Lewis and Clark Fleeting in approximately 1999. (Tr. Vol. II at page 285 line 24 through page 286 line 15). In the 1999 incident, Williams claimed that he injured his back jerking a ratchet. (Tr. Vol. II at page 286 lines 16-22).

         Williams saw Dr. Robert Bernardi, M.D., a spinal neurosurgeon on February 27, 2008 after falling from his truck at work the prior month. (P. Ex. 51 at 2-3). He underwent an MRI which showed degenerative disc changes at ¶ 3-L4, L4-L5 and L5-S1 in his lower back, as well as a small central disc protrusion at ¶ 4-L5. (Id. at 2). Dr. Bernardi prescribed pain medication and physical therapy, and indicated that he did not believe surgery was an option. (Id. at 3). Williams saw Dr. Bernardi for a follow-up appointment on March 26, 2008, during which he recommended to Williams that he find light duty work to transition back to regular duty, but that if light duty was not available, he would need to “decide whether he wants to try returning to regular duty work or whether he wants to see[k] out other types of employment which might be less strenuous on his back.” (Id. at 4). Dr. Bernardi subsequently wrote a return to work slip for Williams. In his opinion, the January 2008 injury was not associated with any permanent disability. (Id. at 5).

         Williams understood Dr. Bernardi's statements to mean that he was able to resume regular if he felt good enough to go back, and that he was not disabled. (Tr. Vol. II page 259 lines 2-10). Williams filed a workers compensation claim against his employer, which settled with a determination that he suffered an 11% total body disability due to his back injury. (Defendant's Exhibit 7).

         In 2011, Williams applied for disability benefits from the Social Security Administration. In his Function Report, Williams represented that his back injury affected his ability to lift, bend and sit, and that his “back is pretty much shot from all the hard jobs I've had over the years.” (Tr. Vol. II page 298 line 14 through page 299 line 14).

         There are also records of clinic visits from Dr. Nilima Chand in evidence during which Williams complained of back pain prior to October 2014. Specifically On June 5, 2014, Williams presented with back pain caused by reaching down to pick up a tarp. (D. Ex. 25). He was given Flexeril and Predinsone. (Id.). On June 21, 2014, he again presented to Dr. Nilima Chand complaining that he “popped his lower back last week, ” that his neck had been in spasm since then, that he had severe pain moving side to side and that the pain was radiating to his upper and lower back. (D. Ex. 26). She found that although Williams had spasm of the muscles in the lower spine, he was not in severe pain. (Deposition of Dr. Nilima Chand page 10 lines 18-24). On physical exam, she noted that straight leg raising was negative, that his motor exam showed normal strength and he had a normal neurological examination. (Nilima Chand Dep. page 11 line 19 through page 12 line 10 and page 19 line 21 through page 20 line 5). She was prescribed Flexeril and a Medrol dosepak. (D. Ex. 26). Neither the June 5, 2014 nor the June 24, 2014 records reflect any activity restrictions.

         Williams also testified regarding his history of painkiller addiction, peaking in 2011 and ending with treatment in 2012. (Tr. Vol. II page 260 line 22 through page 264 line 4). At the time of the accident in question, Williams was taking Suboxone as part of his recovery. (Tr. Vol. II page 265 line 24 through page 266 line 15).

         CCM Employment and the Accident

         CCM hired Williams on October 17, 2014. (Final Pretrial Order (“FPO”) Section IV- Stipulated Facts). Williams testified that CCM did not ask any questions regarding his health or physical condition before hiring him (Trial Transcript Volume II, Doc. 68, page 207 lines 13-18). He believed that he was physically capable of performing the work of a deckhand and he was not under any disability at that time. (Tr. Vol. II, page 265 lines 17-23).

         Defendant's office manager, Tiffany Jackson, acknowledged that CCM did not require Williams to complete a job application, did not question Williams about his medical history before hiring him and did not require that he submit to a pre-employment physical examination. (Deposition of Tiffany Jackson page 8 line 13 through page 9 line 15; page 26 lines 10-16; page 8 line 18 to page 9 line 15). CCM admitted did not seek any information concerning Williams' physical condition or medical history before he was injured. (Tr. Vol. III page 322 lines 19-22).

         Before working for CCM, Williams had worked as a deckhand for Lewis & Clark Fleeting on a harbor boat in the St. Louis, Missouri harbor. He had also worked as a mate on various line boats that would push barges on the Upper Mississippi River in his late teens and early twenties (FPO, Section IV). This work included “basic tow work, ” which Williams described as rigging, ratchets, wiring straps and wiring barges together. (Tr. Vol. II, page 210 lines 8-14).

         Upon being hired by CCM, the only safety rules Williams was given was a sheet entitled “Central Contracting & Marine, Inc. Safety Rules” which listed safety rules more applicable to the dockside plant than to activities on a boat. (Tr. Vol. II page 212 line 19 through page 214 line 8; P. Ex. 118). His training consisted of three days following another deckhand on board the M/V Stacey Dianne while performing tow work. (Tr. Vol. II page 215 line 19 through page page 216 line 2). According to Williams, there were no safety meetings during his time with CCM, and the deckhand training him did not instruct him on inspection and selection of rigging, laying wires or reporting accidents. (Tr. Vol II at page 216 lines 3-20).

         Williams testified that on October 20, 2014, he received a text message from CCM asking if he would like to work that evening by himself, to which he replied that he would. (Tr. Vol. II, page 217 lines 4-24; P. Ex. 9). He agreed to do it because he was new at the company and assumed that it would be a light duty night. (Tr. Vol. II page 218 lines 18-24). That night, his work included tying barges together with rigging, ratchets and steel wires. (Tr. Vol. II page 220 line 8 to page 221 line 10). Based on his prior experiences, Williams remembered how to lay a wire and tighten it with a ratchet; but that it had been 14 years since he had done so. (Tr. Vol. II page 303 line 15 through page 304 line 1). He completed his work on October 20, 2014 without incident. (Tr. Vol. II page 221 lines 16-20).

         Williams worked the deck alone again on October 22, 2014. (Tr. Vol. II page 222 lines 9-11). As he was attempting to tie together two barges using steel wires, he hooked a ratchet onto a wire in preparation to take up any slack. (Tr. Vol. II page 228 lines 1-7). When Williams “jerked” the ratchet to take up the slack, the wire slipped off a deck fitting (known as a “button”) that it was looped around. (Tr. Vol. II page 228 lines 5-11). As a result, Williams was thrown off-balance and fell. (Tr. Vol. II page 239 lines 3-16).

         Williams testified that the condition of the 35-foot pieces of wire or cable rigging kept on the boat was not “the best” - they appeared rusty and well-used. (Tr. Vol. II page 229 lines 5-18). He did not see any kinks (sometimes referred to as “a-holes”) in the wire before his fall, but believes there must have been one in order for the wire to jump off the button fitting. (Tr. Vol. II page 238 line 11 to page 239 line 5).

         Mike Duncan, the boat's pilot, came down to check on him, but did not ask him to fill out an accident report. (Tr. Vol. II page 239 line 18 through page 240 line 2). Williams continued his shift with some help from the Duncan. He asked Duncan if he needed to fill out an accident report, to which Duncan replied that they would talk about it later. (Tr. Vol. II page 240 lines 20-21; page 241 lines 13-21; page 310 lines 7 through 16).[1]

         The following day, Williams sent a text to his contact at CCM stating that he had hurt his back jerking up a ratchet, could hardly get out of bed and was not going to be able to work for a day or two. (Tr. Vol. II page 242 lines 4-20; P. Ex. 9). He received no response. (Tr. Vol. II page 242 lines 21-22). Williams visited Parkland Health Center's emergency department that evening, complaining of pain in his left hand, right shoulder, and lower back. He also reported that he had hit his head. (P. Ex. 119 at 7).

         Tiffany Jackson, CCM's office manager, contacted Williams on October 24, 2014 via text message. (Tr. Vol. II page 245 lines 3-14; P. Ex. 8). She told Williams that CCM could take care of “his medical, ” but that it needed an injury report and post-accident drug test. (P. Ex. 8). Williams and Jackson exchanged texts in an attempt to arrange a meeting at an emergency room, but the meeting never took place. (Tr. Vol. II page 245 line 17 through page 246 line 3). Williams testified that by that point, he no longer trusted the company and that the lawyer he had consulted told him not to communicate with CCM. (Tr. Vol. II page 246 lines 4-14).

         During trial, Williams admitted, without objection, 3 photographs (P. Ex. 12-14) showing bruising on his left groin, thigh and thumb. Williams testified that he took the pictures a few days after the accident. (Tr. Vol. II at page 247 lines 6-24).

         CCM filed a Marine Casualty form (CG-2692) dated January 8, 2016 and signed by Tiffany Jackson with the Coast Guard. (P. Ex. 15). The form states, “Williams reported he hurt his back while jerking slack out of a ratchet on October 22, 2014. He did not fill out an accident report and no further details were provided.” Id. at 2.

         David Brown, CCM's President, was deposed as CCM's Rule 30(b)(6) corporate representative. (Deposition of David Brown at page 6 line 22 through page 7 line 11; page 11 lines 1-8). According to Brown, CCM knew about Williams' injury on October 23, 2014, the day after the incident. (Id. at page 91 lines 13-21). After being made aware of the claimed injury, the company began an investigation by talking to Mike Duncan, and notified its insurance company of the claim. (Id. at page 91 line 22 through page 92 line 12).

         Maintenance and Cure

         On November 20, 2014, CCM's counsel Daryl Sohn drafted a letter (apparently in response to a demand from an attorney in New Orleans) stating that Williams was “not eligible for any disability insurance when he stopped communicating with CCM.” (D. Ex. 49). The letter indicated that CCM might be willing to pay for medical treatment directly if Williams would cooperate in its investigation of the incident. (Id.)

         On December 29, 2014, Williams' attorney, Sean Lieser, sent a demand letter to Sohn, requesting immediate payment of maintenance benefits. (P. Ex. 115). Sohn responded on December 31, 2014, stating that he had heard nothing in response to his prior letter, and that in order to investigate the maintenance claim, CCM still needed an interview with Williams, the name of any doctor Williams had seen, and a HIPAA release for medical records. He also requested information regarding Williams' grocery and housing costs for the calculation of maintenance. (D. Ex. 50). Lieser responded that he was gathering the bills and HIPAA authorization and named four medical providers. (P. Ex. 116). He offered to arrange for Williams to make a statement, and requested an opportunity to meet with the human resources manager and Williams' supervisor. (Id.).

         On January 16, 2015, Lieser sent Sohn a HIPAA authorization for the release of records from October 22, 2014 onward related to Williams' back, shoulders and left hand/thumb. (P. Ex. 117). Sohn responded that CCM needed a release for medical records going back farther in order to investigate whether Williams had a preexisting back injury. (D. Ex. 52). Sohn sent Lieser additional letters on February 5, 2015, February 6, 2015, and March 11, 2015, forwarding copies of medical records they received from after the date of the accident and again requesting the living expense information and the HIPAA release for earlier periods. (D. Ex. 53, 54, 55).

         On March 25, 2015, Sohn wrote to Lieser enclosing the final post-accident medical records and stating that CCM would pay for the treatment reflected in those records. (D. Ex. 56). Sohn also indicated that the full investigation was not yet complete, as they did not have a records release for Williams' family doctor, had not had a chance to interview Williams, and had not received the living expense information needed to calculate maintenance. (Id.)

         CCM's counsel followed up with several letters, including one from May 13, 2015 requesting a records release for Drs. Chand and Gornet, stating that CCM “is not going to be in a position to pay any medical bills until we get this, ” and inquiring about interviewing Williams and the living expense information. (D. Ex. 59). A similar letter was sent to Lieser on June 30, 2015, stating that CCM had not had the chance to interview Williams, had not received the wider HIPAA release, had not received photos of Williams's injuries referenced in a medical report, and had not received the bills it needed to calculate maintenance. (D. Ex. 60).

         Sohn e-mailed Williams' present counsel, Roy Dripps, on September 9, 2015 asking for the same documents and information. (D. Ex. 61). On September 25, 2015, Sohn sent a letter to Dripps stating that based on representations that the wider HIPAA release was forthcoming, CCM would begin paying maintenance and cure. (D. Ex. 48). Sohn references a letter from Dripps dated September 11, 2015 in which he sets forth an itemization of Williams's maintenance expenses. (Id.).

         CCM began paying the medical expenses on October 8, 2015 and maintenance on November 24, 2015. (D. Ex. 45 and 46). In total, CCM paid maintenance to Williams for the period beginning the date of his alleged injury until he reached maximum cure, in the amount of $26, 327.99 (an amount agreed to by the parties). (D. Ex.'s 44, 45). They also paid medical expenses totaling $182, 658.78. (D. Ex.'s 46, 47).

         Williams asserts that he is still owed $216, 227.55 in medical bills for cure. (P. Ex. 99-111). David Brown had no knowledge of or explanation for CCM's failure to pay these bills. (Brown Dep. page 86 line 18 through page 87 line 6).

         Liability Experts

         J. ...


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