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March 20, 2002


The opinion of the court was delivered by: Azrack, United States Magistrate Judge

  Decision and Order

Pursuant to the parties' consent, 28 U.S.C. § 636(c) (2000), the Court conducted a bench trial in this matter to resolve issues and liability presented under both the Jones Act, 46 U.S.C. App. § 688, et seq. (2000) and general maritime law. The Court has reviewed the parties' submissions, the evidentiary exhibits and assessed the credibility of all witnesses. The Court now sets forth its findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

I. Findings of Fact

Fadel Nasser ("Nasser"), a Yemeni native, arrived in the United States in 1976 when he was twenty-five years old. While in the United States, Nasser held various jobs, such as working in grocery shops, earning cash wages. During the course of his stay in the United States he has made many extended trips to and from his native homeland. When spending extended periods in Yemen, Nasser, according to his own testimony, did not work, earn or receive any income. As an obvious result of his trips to and from his homeland, there are large gaps in his employment history.*fn1

As it concerns the events of Nasser's accident, the Court substantially credits the deposition testimony of Second Mate Roger Bumstead ("Bumstead"). The incident giving rise to the instant suit occurred on December 31, 1998. On that day, the ship was preparing to depart the port at Bremerhaven, Germany and make its way to Felixstowe, England. At approximately 12:15 p.m. Nasser was working with the stern mooring gang, which was under Bumstead's direction. AB Miguel and AB Crespo were also members of the mooring gang and were operating the winches. Bumstead typically communicates with members of his gang by using hand signals as the noise level is quite high on the stern of the ship.

Nasser was standing to the left of Bumstead and awaiting orders while the German line handlers were working ashore. At one point during the unmooring operation AB Crespo's line became tangled as it did not come off the drum correctly. This was a common occurrence, especially in the rough winter seas of northern Europe. The problem is easily remedied by either pulling or kicking the line in order to free it up. As such, Bumstead ordered Crespo to stop the winch. Nasser instinctively went over to free the line as he was closest to it and cleared it by kicking it. Noticing that the line was clear and without order or direction from Bumstead, Crespo took it upon himself to heave the line. As a result, Nasser was thrown from his feet about two feet into the air. Nasser landed on his buttocks and his arm struck the bit as he reached out in an attempt to break his fall.*fn2 Immediately after the accident, Nasser gathered his wits about him and continued working his shift, which included returning to his DEU duties after departure from Bremerhaven.*fn3

Bumstead also serves as a medical officer and two hours later Nasser reported to him on the bridge and complained of back pain. Nasser was given aspirin, ointment, a heating pad and band aids. See Defendant's Exhibit A. Bumstead instructed the Chief Engineer that Nasser should not continue working and to send him to a doctor when the ship arrived in the ship's next port.

Upon arriving in Felixstowe, the ship made arrangements for Nasser to be seen by a local doctor on January 1, 1999. Because the facility in Felixstowe was closed, the ship sent Nasser to Ipswich Hospital, which is located one town over. There, he was examined and given pain medication. From the medical records it appears that diagnostic imaging testing occurred and that the results were normal. See Plaintiff's Exhibit 9. After the examination Nasser returned to the ship, but because the doctors at Ipswich failed to note whether he was fit or unfit for duty the ship had to send him to an additional doctor. Nasser was next sent by taxi to a local clinic in Rotterdam, which was the ship's next port of call. A final prognosis of "not fit for duty" was rendered and Nasser was repatriated to the United States by plane at the ship's expense.*fn4

Nasser returned to the United States on January 3, 1999. During the month of January he consulted with his attorney, Sheldon Tabak, Esq, and on February 1, 1999 he signed a retainer agreement with him. On February 2, 1999, about one full month after being repatriated, Nasser went down to the union hall and requested to see the SIU physician, Dr. Arnold Berlin. Nasser explained that the delay in seeking treatment was due to the fact that he was observing the holy period of Ramadan. The testimony on this point is particularly instructive of Nasser's credibility. Nasser testified that he was an observing Muslim. When asked to detail his attempts to seek treatment Nasser testified as follows: "You see when Ramadan is ended I went right away to see the union doctor . . ." (emphasis supplied). Defense counsel, however, has established to my satisfaction that Ramadan began on Sunday, December 20, 1998 and approximately ended on Wednesday, January 20, 1999. See Defendant's Exhibit K. This coincides with the date that Nasser was aboard the ship whose journey was going to outlast the Ramadan observance and there is no evidence at all that establishes Nasser was observing Ramadan aboard the ship. These facts completely controvert Nasser's testimony at trial. Accordingly, I conclude that Nasser was not credible about his delay in seeking treatment and I draw an inference that his complaints of pain are exaggerated.

Dr. Berlin examined Nasser on February 2, 1999 and recorded his history. Dr. Berlin then referred Nasser to Dr. Perry J. Stein for further evaluation. Nasser was examined by Dr. Stein on February 3, 1999, forty-one days after the accident. According to Dr. Stein, Nasser complained of severe lower left back pain and recommended further diagnostic testing, including an MRI, and physical therapy sessions. His physical exam specifically ruled out a lumbar radiculopathy. See Plaintiff's Exhibit 13. The MRI indicated only "mild degenerative disc changes at L3-4 and L4-5 without significant bulge or herniation" and ruled out any "bone lesion or subluxation." See Plaintiff's Exhibit 15.

On March 29, 1999 Nasser was once again examined by Dr. Stein. Nasser complained of ever increasing pain and sexual dysfunction. At trial, Nasser denied registering the latter complaint. In any event, Dr. Stein concluded that the MRI of Nasser's "lumbosacaral spine and pelvis failed to reveal any significant injury." Plaintiff's Exhibit 13. Dr. Stein diagnosed Nasser as suffering from post-traumatic stress disorder and recommended that he undertake psychiatric treatment along side a physical therapy regime. Nasser failed to pursue psychiatric treatment.

Nasser returned to Dr. Berlin on April 6, 1999. Upon examination, Dr. Stein concluded that Nasser was fit for duty and that any alleged symptoms were not associated with any disease. Nasser then made his way to Dr. Harold S. Goldberg, D.O. on May 27, 1999 and continued to be treated by him until May 24, 2000. Seven months into treatment with the Chelsea Village Medical Office, Dr. Goldberg concluded that Nasser's subjective complaints were inconsistent with his objective findings. In a letter to Nasser's counsel Dr. Goldberg asked that he prepare an authorization for a psychological evaluation. Defendant's Exhibit. Nasser, again, failed to pursue this avenue of treatment and presented no evidence that establishes he ever sought authorization for such treatment.

In May 2001 Nasser was also treated by Dr. Andrew Davy, an anesthesiologist and pain management specialist. Dr. Davy conducted a neuro-electrodiagnostic study and concluded that a unilateral L4-S1 lesion and/or arthritis of the joint were the possible causes of Nasser's pain and treated him with regular injections that were of no long term help. Dr. Davy's treatment ceased in November 2001 as the defendant refused to continue to ...

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