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MCMILLAN v. TUG JANE A. BOUCHARD

May 3, 1995

DAVID T. McMILLAN, Plaintiff, against TUG JANE A. BOUCHARD Official #56872, her engines, tackle, appurtenances, bunkers, stores, etc., In Rem B. No. 135 CORPORATION and BOUCHARD TRANSPORTATION CO., INC., Defendants.


The opinion of the court was delivered by: DAVID G. TRAGER

 TRAGER, District Judge:

 This is a seaman's action for maintenance and cure. Plaintiff, David T. McMillan, a former seaman and deckhand on the tug Jane A. Bouchard, claims to have injured his back while he attempted to lift a shackle and line on the tug. As a result of this injury McMillan alleges that he was rendered unfit for duty and, therefore, entitled to past, present and future maintenance and cure. McMillan also claims that despite his repeated requests, defendant, Bouchard Transportation Co. (Bouchard), "wilfully, wantonly and callously refused to pay [his] maintenance and cure." For this, McMillan seeks punitive damages in the amount of $ 400,000 along with attorneys' fees.

 Defendant Bouchard asserts that the accident was the result of a pre-existing back injury, which McMillan knowingly and fraudulently failed to disclose prior to being hired as deckhand on the tug. In addition, Bouchard argues that McMillan also fraudulently withheld that he had a history of Valium use to control muscle spasms and discomfort throughout his body, including his back. Accordingly, Bouchard argues that McMillan was not entitled to maintenance and cure. Alternatively, Bouchard argues that McMillan had reached maximum medical cure on May 18, 1992, and was not entitled to payments for maintenance and cure beyond that date.

 Bouchard also claims that it did not wantonly and callously refuse to pay McMillan's maintenance and cure, and, accordingly, punitive damages are not warranted. Further, Bouchard also contends that in this Circuit punitive damages are limited to attorneys' fees only.

 Facts

 Prior to being employed by Bouchard, McMillan had a varied work history. Following the eleventh grade, in 1975 McMillan worked in a commissary and as a carpenter (Tr. 193-94). See also McMillan Dep. at 33-34, 79-80. *fn1" Between 1976-77 McMillan worked in commercial construction and for Newport News Shipbuilding & Drydock. See McMillan Dep. at 81-83. McMillan quit his construction job because he was required to work too much overtime and had an unspecified disagreement with his supervisor (Tr. 194, 244). In 1977-78, McMillan worked for a home improvement company, Hatchett Home Improvement, but quit again because of an unspecified disagreement with his supervisor (Tr. 245). See also McMillan Dep. at 83-84. For the following three years -- 1978-81 -- McMillan worked as deckhand for a commercial fishing company out of Newport News, Virginia. Id. at 85-87. Thereafter, for about two years McMillan was a self-employed carpenter and also worked for a small house framing company. See McMillan Dep. at 89-91. For the next four years McMillan worked as a deckhand for three different tugboat companies -- SeaTow, Inc., M & W Marine, and Lockwood (Tr. 236, 245-47). See also McMillan Dep. at 92-98. At trial, McMillan also testified that he quit two of these jobs because of disagreements with management and dissatisfaction with his working conditions (Tr. 245-47).

 McMillan's health history is as varied as his work history. In 1976, McMillan pulled a muscle in his upper back while moving a material box for Newport News Shipbuilding & Drydock (Tr. 195). McMillan missed five days of work because of this injury (Tr. 195). In 1982, McMillan was involved in a car accident, the result of which left him with a concussion and required him to undergo orthodontic procedures (Tr. 234). McMillan was involved in two other car accidents in 1985 and 1987, both of which left him with neck and shoulder injuries (Tr. 195). However, McMillan testified that he missed no work because of these injuries (Tr. 196-97). McMillan also testified that although he suffered a sprained ankle in May of 1990 while working for one of the tug companies, he lost only one day of work (Tr. 200). See also Def.'s Exh. A.

 McMillan also has a history of Valium use to control muscle spasms and cramps (Tr. 198). McMillan was first prescribed Valium by Dr. Louis Parham in November 1985 following the automobile accident in Virginia. See Def.'s Exh. E. Dr. Parham's

 [ILLEGIBLE SENTENCES]

 according to McMillan's own testimony the prescription was renewed again in February of 1992, and McMillan continued to take Valium at least through August 1992 (Tr. 237-38).

 McMillan started working for Bouchard as a deckhand in

 [ILLEGIBLE SENTENCE]

 "make up to the barges" -- hook up the tug to the barges (Tr. 202). Deckhands also were required, among other - things, to keep the decks clean and bring supplies onto the tug (Tr. 202). In performing these tasks, deckhands do a considerable amount of heavy lifting, pulling and climbing (Tr. 120, 202-03). Deckhands normally work what are called "hitches" -- a period of days during which the deckhand is on the tug and works six hours, has six hours off, etc. (Tr. 120). A normal hitch lasts 28 days (Tr. 204).

 McMillan worked five hitches for a total of 142 1/2 days during the seven month period he was employed by Bouchard. One hitch lasted as long as 50 days -- January 23, 1992, through March 12, 1992 (Tr. 273). Immediately following the 50-day hitch, McMillan was scheduled to perform a 14-day hitch leading up to the extended Easter weekend -- April 1, 1992, through April 15, 1992 (Tr. 273). During that hitch, McMillan made a number of telephone calls to Christopher Walsh, Bouchard's employee responsible for personnel and operations, in which he inquired about the availability of his replacement and what options he had for getting off the tug (Tr. 274). According to Walsh, Bouchard was having a difficult time finding a deckhand to replace McMillan (Tr. 275). Walsh testified that as the planned end of McMillan's hitch approached he became "more agitated" with Bouchard's inability to find a replacement (Tr. 275). In the final telephone conversation, Walsh claimed that McMillan said something to the effect of "one way or another I am getting off the boat" (Tr. 275-76).

 On April 19, 1992, when in transit from Staten Island, New York to Port Jefferson, Long Island, McMillan "heard and felt a pop" in his back while he attempted to lift a heavy shackle and 10-inch cable (Tr. 207). McMillan immediately told the assistant engineer of the injury and also reported it to the mate (Tr. 207-08). When the boat arrived in Port Jefferson, McMillan went to John Mathers Hospital where he was diagnosed with a muscle sprain and was prescribed Motrin and five days of bed rest (Tr. 209). Thereafter, McMillan returned to the tug, which took him back to New York so he could fly home to Florida. During the return trip to New York, McMillan completed an accident report while in the presence of the assistant engineer and mate (Tr. 208-09). McMillan did not resume his position as deckhand during the return trip to New York.

 After McMillan returned to his home in Ocala, Florida, his back pain persisted and he contacted Peter Austen, Bouchard's risk manager in New York. Austen agreed to find McMillan a neurosurgeon in Florida to treat his injury. Shortly thereafter, Austen arranged for McMillan to see Dr. Juan Lora, a board eligible neurosurgeon, in Ocala on May 4, 1992 (Tr. 51). *fn2" When he visited Dr. Lora, McMillan complained of severe back pain which radiated down both of his legs. See Def.'s Exh. F. Dr. Lora noted that McMillan stated that he had back pain before the injury on the tug, but complained that "this does not feel like a regular strain." Id. Dr. Lora also noted that McMillan had admitted using Valium "for several years." Id. From the initial neurological examination, Dr. Lora determined McMillan's condition to be "essentially within normal limits." Id. Dr. Lora found some tenderness in the paravertebral muscles; however, there was no evidence of neurological abnormalities. Id. Dr. Lora prescribed a Magnetic Resonance Imaging test (MRI), physical therapy and recommended that McMillan return for a follow up examination in two weeks (Tr. 212). Id.

 McMillan's MRI was performed on May 12, 1992, and was largely unremarkable. Although there was no evidence of a herniated disc, in the opinion of the radiologist, there was minimal bulging of the L5-S1 disc centrally. Id. Following McMillan's initial visit with Dr. Lora, he attended Ocala Physical Therapy for two weeks. On May 18, 1992, McMillan's physical therapist wrote to Dr. Lora and explained that McMillan had progressed about fifty percent, but still had positive straight leg raises in both legs at sixty degrees. In addition, the physical therapist noted that McMillan complained of "an older injury ... when he fell on his cocyx [sic] and that is where he feels the pain originates from." Id.

 McMillan returned to Dr. Lora on May 18, 1992. At that time Dr. Lora noted that "most of [McMillan's] back pain and leg pain has gone away, however, he continues to complain about coccyx pain." Id. While Dr. Lora opined that McMillan's coccyx pain was no reason for him not to return to work, he noted that "Mr. McMillan feels very leery about going to work." Id. In addition, Dr. Lora recommended that McMillan see an orthopedic surgeon. *fn3" However, Dr. Lora also noted that from a neurological perspective McMillan had reached maximum medical cure and could return to work as soon as he was evaluated by the orthopedic surgeon. *fn4"

 After reviewing McMillan's medical reports, the results of his MRI, and discussing the case with Dr. Lora, on May 18, 1992, Austen terminated McMillan's maintenance and cure. McMillan, however, was not notified of the termination until a later time (Tr. 214-17). Bouchard's decision at this point to terminate maintenance and cure payments was based on Dr. Lora's opinion that McMillan had reached maximum medical cure and the radiologist's report which indicated that there was no impingement of the nerves in McMillan's back (Tr. 60). *fn5" Bouchard paid all of McMillan's medical expenses related to the injury, and maintenance at a rate of $ 15 per day from April 19, 1992, through May 18, 1992 (Tr. 217).

 Following the May 18 visit to Dr. Lora, McMillan contacted Peter Austen to determine if Bouchard would pay for an orthopedic examination (Tr. 214). As Dr. Lora indicated that McMillan had reached maximum medical cure, Bouchard chose not to pay for such an examination (Tr. 58-59); however, Austen never responded to McMillan's inquiry (Tr. 214). As McMillan could not afford to pay for the orthopedic examination he decided to seek out chiropractic treatment for his back (Tr. 214-215). McMillan received six chiropractic treatments in the following three weeks (Tr. 215). Dr. Jeffrey G. Pitts, McMillan's chiropractor, diagnosed him with a "thoracic lumbar sprain, strain, Lumbar Intervertebral disc ... [and] Lumbago (low back)." Pl.'s Exh. 26. Dr. Pitts noted that McMillan had positive straight leg raises at forty-five degrees right and sixty degrees left, positive lowering of both legs when extended and positive bilateral leg raise. Id. Although he had improved slightly throughout the course of the treatment, Dr. Pitts noted that McMillan could not engage in any physical activity without "flair up of [the] original symptoms," and his prognosis remained guarded. Id.

 On June 11, 1992, McMillan contacted Peter Austen to see if Bouchard would reimburse him for the chiropractic treatments (Tr. 66, 215). Although Austen requested that McMillan submit a chiropractor's report and bills, Austen never responded to McMillan's request (Tr. 68, 215). At trial, Austen testified that Bouchard refused to pay for the chiropractic treatments based on Dr. Lora's opinion that McMillan had reached maximum medical cure (Tr. 67-68).

 After being denied reimbursement for his chiropractic treatments, McMillan retained counsel for the purpose of getting his maintenance and cure reinstated (Tr. 217). Shortly thereafter, McMillan was examined by two physicians, both of ...


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