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Collick v. Weeks Marine

October 28, 2009

JOSEPH COLLICK, PLAINTIFF,
v.
WEEKS MARINE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Cooper, District Judge

MEMORANDUM OPINION

Plaintiff, Joseph Collick, brought this action against his former employer, defendant Weeks Marine, Inc. ("Weeks"), and defendant Haztek, Inc., to recover damages for personal injuries. (Dkt. entry no. 24, Am. Compl.) Plaintiff now moves, pursuant to Federal Rule of Civil Procedure ("Rule") 65, to preliminarily enjoin Weeks from failing to pay him "maintenance and cure" under general maritime law. (Dkt. entry no. 45, Mot. for Order to Show Cause.) Weeks opposes the motion. (Dkt. entry no. 54, Weeks Br.)

The Court has considered the papers submitted by the parties and heard oral argument on October 7, 2009. No party requested an evidentiary hearing. The Court hereby issues its preliminary findings of fact and conclusions of law as required by Rule 52(a)(2). The Court, for the reasons stated herein, will grant the motion for a preliminary injunction.

BACKGROUND - FACTUAL FINDINGS

I. The Accident

Plaintiff is a marine construction worker. He began working for Weeks in the construction of a pier at the Earle Naval Weapons Station in March 2006. (Dkt. entry no. 47, Pl.'s Decl. at ¶ 3.) He was typically assigned to a particular crane barge, Barge 572, as a dockbuilder. (Dkt. entry no. 54, Declaration of Daniel Mowers ("Mowers Decl."), Exs. 1 & 2.)

On November 17, 2006, the Weeks employees on Barge 572 were using the crane to position a heavy piece of pre-cast concrete onto the pier. (Pl.'s Decl. at ¶ 4.) The concrete got hung up on a piece of "candy cane" rebar protruding from another piece of concrete. (Id.) Plaintiff's supervisors directed him to stand on a five-inch-wide section of concrete suspended from the crane and use a tool to bend the rebar out of the way. (Id.) The tool slipped off the rebar, and Plaintiff fell twelve to fifteen feet to the deck of the pier. (Id.) In the fall, he suffered a "pilon fracture dislocation of [his] right ankle." (Id.; see id. at Ex. 4, 10-7-08 Report of Dr. Austin Fragomen.)

II. Weeks's Initiation and Suspension of Payment of Benefits to Plaintiff

Immediately after Plaintiff's injury, Weeks began voluntarily paying him medical and wage benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 ("LHWCA"). Plaintiff filed a claim to recover compensation benefits from Weeks with the United States Department of Labor ("DOL"), Office of Workers' Compensation Programs ("OWCP"), and listed his occupation as dockbuilder. (Dkt. entry no. 18, Decl. of Thomas Langan ("Langan Decl.") at ¶ 6; id., Ex. B, Employee's Claim for Compensation Form.) Plaintiff then brought this action on October 17, 2008, stating that he was a seaman and asserting claims, inter alia, under general maritime law and the Jones Act, 46 U.S.C. § 30104. (Am. Compl. at 6-12; dkt. entry no. 1, Compl.) Weeks discontinued paying LHWCA benefits to Plaintiff shortly after he brought this action, based on a question of whether Plaintiff was a seaman, which would preclude him from coverage under the LHWCA. (Pl.'s Decl., Ex. 2, Notice of Controversion of Right to Compensation and Notice of Final Payment of Suspension of Compensation Payments (showing that Weeks made weekly payments of $996.50 from 11-18-06 through 10-20-08); Langan Decl. at ¶ 10.)

Plaintiff has filed an administrative claim with the OWCP for payments under the LHWCA. (See dkt. entry no. 28, 4-20-09 Mem. Op. at 3-6 (discussing administrative scheme for LHWCA claims).) Plaintiff's counsel indicated at oral argument that the parties participated in an informal conference regarding the LHWCA claim before the DOL, but Weeks has refused to implement the DOL's recommendations, and Plaintiff has not yet sought an ultimate determination of his eligibility for LHWCA benefits from an administrative law judge. (Pl.'s Decl., Ex. 6, 2-3-09 Memorandum of Informal Conference.) Thus, although Plaintiff's LHWCA claim remains pending, it is "on hold" while Plaintiff pursues a determination in this Court as to whether he is a Jones Act seaman.

Plaintiff contends that Weeks's refusal to pay either LHWCA benefits, or maintenance and cure benefits under general maritime law, since October 20, 2008, has resulted in impending financial ruin. To avoid losing his home, he borrowed $15,000 from his annuity in March 2008, costing him $3,630 in fees, penalties, and taxes. (Pl.'s Decl. at ¶ 6.) Plaintiff also took a job on or about May 13, 2009, as a cabinet maker, where he makes $13.00 per hour and works approximately 25 hours per week. (Id.) Plaintiff estimates his household expenses at $93.34 per day, and seeks maintenance in that amount. (Pl.'s Decl. at ¶ 8.) He does not earn enough at his cabinet making job to pay his monthly bills, and he has fallen behind on his mortgage, electric, and gas bills. (Dkt. entry no. 56, Pl.'s Reply Decl. at ¶ 3.) As of September 25, 2009, Plaintiff had $500 in his bank account and a mortgage payment of $1,600 due. (Dkt. entry no. 57, Pl.'s Reply Br. at 7 n.3.)

III. Plaintiff's Prognosis

Plaintiff has had five ankle surgeries, and will require additional surgical procedures in the future. (Pl.'s Decl. at ¶ 4.) Every doctor who has treated him has opined that he cannot return to construction work. (Id.; see, e.g., Langan Decl., Ex. I, 2-19-07 Report of Dr. Ian Fries ("[A] return to heavy construction work as a dockbuilder is not a reasonable goal for Mr. Collick. I advise prompt referral for vocational rehabilitation."); Langan Decl., Ex. M, 1-16-08 Report of Dr. Matthew Roberts ("[Joseph Collick's injury] is a permanent condition and will likely require him to seek other employment as he will be disabled as a construction worker.").) Plaintiff suffers constant pain in his right leg, as well as in his left leg and back because he cannot walk properly. (Pl.'s Decl. at ¶ 7.) A broken screw in his leg frequently "catches," causing him pain, and needs to be removed. (Id.) Since Weeks stopped paying him benefits and covering his medical expenses, Plaintiff has received no medical treatment, because he has no insurance and cannot pay for treatment himself. (Pl.'s Reply Decl. at ¶ 3.)

The parties disagree as to the proper course of treatment for Plaintiff's injuries. Plaintiff contends that his treating physician, Dr. Austin Fragomen, recommended "distraction arthroplasty." (Pl.'s Decl. at ¶ 7; see 10-7-08 Report of Dr. Austin Fragomen (recommending same, advising that Plaintiff understood the procedure had a 75% success rate, and noting that regeneration of cartilage in the ankle could occur).)*fn1 Plaintiff explains that he prefers to undergo distraction arthroplasty because his physicians have advised that he is too young to undergo the alternative treatments of an ankle fusion or total ankle replacement surgery. (Pl.'s Decl. at ¶ 7.) Also, part of the procedure recommended by Fragomen involves the "inject[ion of] bone marrow aspirate to help regenerate the cartilage." (10-7-08 Report of Dr. Austin Fragomen.)

Dr. Ian Fries, who examined Plaintiff at Weeks's request on one occasion, advised Weeks's corporate claims manager, in contrast, that distraction arthroplasty is a novel technique with unpredictable results. (Langan Decl., Ex. I, 2-19-07 Report of Dr. Ian Fries at 1; id., Ex. L, 11-20-08 Report of Dr. Ian Fries at 2.) Fries further opined that "ankle arthrodesis"*fn2 or total ankle replacement are more commonly accepted treatment options. (Id., Ex. L, 11-20-08 Report of Dr. Ian Fries at 2.)

Weeks has offered to pay maintenance and cure benefits to Plaintiff, "without prejudice," on the condition that he agrees to undergo the course of treatment recommended by Fries. (Langan Decl. at ¶ 14; id., Ex. N, 12-4-08 Letter from Weeks's Counsel to Plaintiff's Counsel.) Plaintiff did not respond to Weeks's offer. (Id. at ¶ 15.) Plaintiff contends, and Weeks does not dispute, that Weeks initially authorized him to consult with Fragomen, even though Weeks knew Plaintiff was consulting him about distraction arthroplasty. The surgery was scheduled, but when Plaintiff brought this action, ten days after his consultation with Fragomen, Weeks refused to authorize the procedure. (Pl.'s Decl. at ¶ 7; id., Ex. 5, 9-30-08 Letter from Teresa Olivo to Dr. Austin Fragomen; 10-7-08 Report of Dr. Austin Fragomen.) Plaintiff has not seen a doctor about his injuries since seeing Fragomen on or about October 7, 2008. (Pl.'s Decl. at ¶ 7.)

An informal conference with the DOL in Plaintiff's proceedings for LHWCA benefits in the OWCP resulted in a recommendation by the DOL's claims examiner that Weeks should "authorize the claimant's choice of physician, including any recommended tests an[d] surgery." (Pl.'s Decl., Ex. 6, 2-3-09 Memorandum of Informal Conference.)

IV. Nature of Plaintiff's Work at the Time of the Accident

The pier at the Earle Naval Weapons Station extends about two miles into the Sandy Hook Bay off the shore of New Jersey. (Pl.'s Decl. at ¶ 2.) The pier is shaped like a trident and is large enough to serve U.S. Navy vessels. (Id.) Plaintiff was employed by Weeks to work on the construction of the pier from early March 2006 until his accident on November 17, 2006. (Id. at ¶¶ 2-3.) In the month preceding Plaintiff's accident,*fn3 Weeks assigned Plaintiff, along with four other dockbuilders and a crane operator, to work on Barge 572, a crane barge located adjacent to the center prong of the three-pronged pier. (Id. at ¶ 4; Mowers Decl., Exs. 1 & 2; Pl.'s Reply Br. at 5.)*fn4 On a typical work day in the fall of 2006, approximately forty dockbuilders worked on constructing the pier. (Mowers Decl. at ¶ 4.)

The work of the six employees assigned to Barge 572, as reflected by Weeks's daily time sheets, included installing bollards; erecting loading ramps and platforms; forming and stripping bollards and platform columns; erecting rail blockouts; erecting a utility gallery; pouring cement for bollard and platform columns; forming and stripping cap joints; forming, pouring, and stripping concrete plugs; forming and stripping joints; pouring cement for pile plugs; erecting pier crane rail beams; erecting platform beams; erecting box beams; preparing deck forms; pouring cement for cap joints; pouring cement for column cap walls; pouring cement for the pier deck; and erecting a pier crane beam. (Mower Decl. at ¶ 6; id., Ex. 2, Daily Time Sheets.) On the day of Plaintiff's accident, Barge 572 and the employees working on it were engaged in erecting a loading platform. (Id., Ex. 2, 11-17-06 Daily Time Sheet.)

Plaintiff also asserts that the barge crew "had to pay attention to whether the barge was taking on water, needed pumping, or was listing." (Pl.'s Decl. at ¶ 3.) Daniel Mowers, Construction Superintendent for Weeks, states that only he and the crane barge operator were responsible for monitoring Weeks's barges, not the dockbuilders. (Mowers Decl. at ¶ 10.) Plaintiff denies this assertion, pointing out ...


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