United States District Court, S.D. Illinois
TIMOTHY W. WILLIAMS, Plaintiff,
CENTRAL CONTRACTING & MARINE, INC. and M/V STACEY DIANNE, in rem, Defendants.
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE.
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).
Injuries and Treatment
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
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
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).
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
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.
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).
Employment and the Accident
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).
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
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).
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).
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).
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
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).
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
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).
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
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
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.
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
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
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.).
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).
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.)
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).
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.
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,
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).