Koch v. United States

• Decision Date: 12 May 2017
• Docket Number: No. 15-30811,15-30811
• Citation: 857 F.3d 267
• Parties: Ricky KOCH ; Susan Koch, Plaintiffs–Appellees American Interstate Insurance Company, Intervenor v. UNITED STATES of America, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

857 F.3d 267

Ricky KOCH ; Susan Koch, Plaintiffs–AppelleesAmerican Interstate Insurance Company, Intervenor

v.UNITED STATES of America, Defendant–Appellant

No. 15-30811

United States Court of Appeals, Fifth Circuit.

FILED May 12, 2017

David A. Abramson, Ian Fitzgerald Taylor, Lewis, Kullman, Sterbcow & Abramson, New Orleans, LA, for Plaintiffs–Appellees.

Henry Harvey LeBas, LeBas Law Offices, A.P.L.C., Lafayette, LA, for Intervenor.

Matthew Miles Collette, Steve I. Frank, Malinda Lawrence, Trial Attorney, Peter Glenn Myer, Trial Attorney, U.S. Department of Justice, Washington, DC, for Defendant–Appellant.

Before JONES, DENNIS, PRADO, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Plaintiff Ricky Koch fell and suffered personal injuries while aboard the S.S. Altair , a public vessel owned by the United States and operated by its agents. Koch, a 54 year-old foreman and employee of Economy Iron Works, was inspecting the vessel in connection with his employer's bidding on repair work on the vessel. Koch and his wife, Susan Koch, brought this action in federal district court against the Government under the third-party liability provision of the Longshore and Harborworkers' Compensation Act (LHWCA), 33 U.S.C. § 905(b).¹ Following a bench trial, the district court determined that negligence attributable to the Government—failure to provide adequate lighting of a stairwell—was the factual and legal cause of Koch's fall, resulting harm, and permanent disability and awarded the Kochs $2.83 million in damages. The Government filed a timely notice of appeal. See FED. R. APP . P. 4(a)(1)(B). This court has jurisdiction under 28 U.S.C. § 1291.

I

A

The Government contends that, prior to his February 2, 2012 accident, Koch had become disabled by his painful chronic osteoarthritis

in both his knees, as well as the degenerative disc disease in his cervical spine and carpal tunnel syndrome. Although Koch's preexisting conditions are undisputed, the district court rejected the Government's argument that Koch had been disabled by them prior to his accident. We affirm this factual finding by the district court as not clearly erroneous for the reasons set forth in detail later in this opinion. At this point, in the interest of chronological clarity, we set forth briefly the evidence of Koch's developing osteoarthritic knee and spinal diseases prior to his accident, as follows:

In 2002, Dr. Richard Corales diagnosed Koch as suffering from degenerative disc disease

. In 2004, Koch was diagnosed with multiple joint arthritis by Dr. Terry Habig who referred him to a rheumatologist. In 2005, Dr. Merlin Wilson, a rheumatologist, diagnosed Koch with generalized osteoarthritis and concluded that he needed total knee replacement. In December 2007, Koch saw Dr. Miranne, who recorded that Koch had a history of "progressive lower back pain for many years" and documented, inter alia, carpal tunnel syndrome. In January 2008, Dr. Lucien Miranne performed cervical spine fusion surgery of Koch's C3–4 and C4–5. In January 2009, Koch was seen by Dr. Lockwood Ochsner, who said he considered doing bilateral total knee replacement. In January 2012, Dr. Wilson saw Koch again and noted that he needed total knee replacement surgery "in the worst way."

B

On February 2, 2012, Koch boarded the S.S. Altair , a public vessel in reserve status owned by the United States Maritime Administration. Along with six other contractor representatives, Koch participated in a "walkthrough" of the vessel in order to submit a bid for his company on areas of the vessel in need of repair. The chief engineer of the Altair directed the walkthrough. The contractor group eventually arrived at a stairwell leading down to the winch room, a small compartment that housed the vessel's eductor system. The chief engineer flipped the light switch at the top of the stairwell, but the fluorescent lights did not fully illuminate the area. The engineer led the contractor group down the stairwell, which became progressively darker. While some contractors used flashlights to help illuminate their descent, Koch held on to the handrails with both hands. However, he missed the last step in the dark and fell backwards, striking his head, neck, and shoulders on the bulkhead. He sat down while the other contractors inspected the winch room. Koch then continued with the group's walkthrough of the Altair . However, Koch did not complete a second walkthrough of another vessel, but instead returned to his office. After filling out an accident report, Koch remained in the office for the rest of the day. A colleague drove him home, where his wife found him immobile on a recliner.

Essentially incapacitated and experiencing severe pain in his knees, neck, and back, Koch remained at home, unable to return to work. When his symptoms did not improve after a few days of rest, he went to an urgent care clinic. The doctor at the clinic instructed Koch to follow up with a specialist; Koch saw Dr. Simon Finger, an orthopedic surgeon. Dr. Finger noted Koch's history of osteoarthritis in his knees

but concluded that the February 2, 2012 shipboard fall exacerbated his preexisting osteoarthritic conditions and caused the urgent necessity for surgical bilateral knee replacements.

Prior to performing a knee replacement, however, Dr. Finger instructed Koch to see a neurosurgeon for his neck symptoms that had manifested after the fall. Koch saw Dr. Lucien Miranne, a neurosurgeon who had previously performed an anterior cervical discectomy

and fusion at his C3–4 and C4–5 vertebrae in his neck in January 2008. Dr. Miranne concluded that Koch herniated his C6–7 disc as a result of the February 2, 2012 fall and aggravated his cervical spondylosis in his C5–6 discs. Dr. Miranne recommended and performed an anterior cervical discectomy and fusion at C5–6 and C6–7 on Koch on August 17, 2012.

Following this cervical spine surgery, Koch had post-surgical complications, including carpal tunnel

problems in his hands. Although Koch had mild carpal tunnel prior to the fall, Dr. Miranne noted that the carpal tunnel condition was worsened by Koch's neck problems associated with his C6 and C7 nerve roots. On April 30, 2013, Dr. Miranne performed a right carpal tunnel release on Koch.

Koch's symptoms, including severe pain in his neck, shoulders, arms, and hands, worsened after the August 17, 2012 surgery. Dr. Miranne concluded that because of Koch's persisting pain and discomfort, additional surgery was required, consisting of a posterior approach cervical fusion.² Dr. Miranne explained that he had not used the posterior approach in the first place because it is more painful and usually requires longer hospitalization than the anterior approach. Dr. Miranne recommended that Koch first have and recover from the knee replacements before undergoing the posterior cervical surgery. On July 14, 2014, Dr. Finger performed a right total knee replacement

. At the time of trial, Koch was scheduled to have the left knee replacement as soon as he had fully recovered from the first knee replacement. Dr. Miranne also recommended that Koch undergo a left carpal tunnel release.

C

In May 2013, the Kochs filed suit against the Government for damages for past and future medical care, lost wages, and pain and suffering. They alleged that the Government was liable due to its negligence in failing to provide a safe work place and adequate lighting on the vessel. Following a three-day bench trial, the district court determined that the Government's negligence in failing to provide adequate lighting above the stairwell was the factual and legal cause of Koch's accidental fall, his injuries, the exacerbation of his preexisting conditions, and his disability.

Koch v. United States , No. CIV. A. 13-205, 2015 WL 4129312 (E.D. La. July 7, 2015).

Koch's supervisor, Robert Barbalich, Jr. of Economy Iron Works, testified that he knew of Koch's health issues prior to the accident, but that they never impacted his ability to work as a foreman and that he did not have mobility issues on the job. Barbalich expected Koch to work for another five to ten years before retiring. Dr. Miranne testified that Koch had returned to work without restrictions following the successful 2008 anterior cervical discectomy

and fusion. Dr. Wilson, a rheumatologist, testified that when he saw Koch in January 2012 Koch said that he had worked continuously and was able to perform all of his job duties and daily living activities. Koch testified that prior to the fall he had no plans to have knee replacement surgery and had no limitations or restrictions on account of his knees or neck. Susan Koch testified that prior to the accident Koch was very active at home; he replaced the kitchen cabinets, vaulted the ceiling in their bedroom, mowed the lawn regularly, and tended to their garden. After the accident, Koch could no longer sleep in a normal bed and the couple can no longer enjoy an active social life. She testified that the stress of working full time and caring for her husband had taken its toll on her and their relationship. Koch's treating surgeons, Drs. Miranne and Finger, testified that Koch's fall caused his injuries, exacerbation of preexisting conditions, and disability and that all of his subsequent surgeries were necessitated by that accident. Dr. Finger testified that more likely than not Koch will need revision surgeries to both knees within the next fifteen to thirty years. Dr. Miranne testified that even if Koch had successful knee replacements with Dr. Finger and a successful posterior approach cervical fusion surgery, it is more likely than not that he will never be able to return to any type of gainful employment due to the injuries sustained in his fall.

The district court award of damages to the Kochs of $2.83 million, including $1.3 million for Koch's pain and suffering. In its findings of fact, the district court stated:

Prior to February 2, 2012, and despite multiple pre-existing injuries,

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