G&J Fisheries, Inc. v. Amaral
| Decision Date | 15 October 2020 |
| Docket Number | CIVIL ACTION NO. 1:18-12468-LTS |
| Parties | G&J FISHERIES, INC., Plaintiff, v. PETER AMARAL & BHF BLUE EASTERN, LLC, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
REPORT AND RECOMMENDATION ON PLAINTIFF, G&J FISHERIES, INC.'S AMENDED AND RESTATED MOTION FOR SUMMARY JUDGMENT (#80), AND DEFENDANT, BHF BLUE EASTERN, LLC'S CROSS-MOTION FOR SUMMARY JUDGMENT (#91).
This is an admiralty case. Plaintiff, G&J Fisheries, Inc. (G&J), is the owner of the F/V Georges Banks, a commercial fishing vessel operating out of New Bedford, Massachusetts. (#81-1 at 2.) In November 2017, defendant, Peter Amaral (Amaral), injured his lower back while working aboard the Georges Banks as a fisherman. (#1 ¶ 5.) G&J paid Amaral maintenance and cure until October 4, 2018, when his treating physician released him back to work in a full-duty capacity. Id. ¶ 7.
Amaral then began working on the F/V Blue Eastern, another fishing vessel based out of Massachusetts, owned by defendant, BHF Blue Eastern, LLC (BHF). Id. ¶ 8. At some point in October 2018, Amaral began experiencing back problems again and left BHF's employ, claiming that he was no longer able to work. Id. ¶¶ 10-11. On or about November 19, 2018, Amaral, through his counsel, demanded that G&J resume paying him maintenance and cure, which G&J did. Id. ¶¶ 12-14. Amaral never made a demand for maintenance and cure against BHF.
On November 30, 2018, G&J brought an action for declaratory judgment against both Amaral and BHF pursuant to 28 U.S.C. §§ 2201 et seq. and Fed. R. Civ. P. 57, seeking a judgment that it is no longer obligated to pay Amaral maintenance and cure, and that any maintenance and cure owed to Amaral since October 4, 2018, is the responsibility of BHF. Id. at 4. Neither Amaral nor BHF filed cross-claims against each other.
On October 25, 2019, G&J filed the present motion for summary judgment, requesting that the court enter judgment declaring that Amaral reached maximum medical improvement (MMI) on October 4, 2018, and that "G&J was not, and is not liable to pay Amaral maintenance and cure since that time[.]" (#80 at 2.)1 On November 22, 2019, BHF filed a cross-motion for summary judgment, also arguing that Amaral has reached MMI, and disputing that it is responsible for any maintenance and cure payments to Amaral. (#91 at 1.) The motions have been fully briefed (##81, 82, 92, 93, 94, 95, 96, 97, 105, 106, 107, 108, 109, 112), and are poised for disposition.
The following facts are undisputed unless otherwise indicated. Amaral, who is in his early forties, has been a commercial fisherman since approximately 2002. (#81-2 at 5; #81-16 at 2.) In addition to the Georges Banks, Amaral worked onboard multiple fishing vessels throughout his career. (#81-2 at 3-4.) Amaral's work as a commercial fisherman was repetitive; his responsibilities included picking up baskets of scallops from dredges and then dumping them into separate boxes to be shucked. Id. at 5. Amaral estimated that each basket of scallops weighed between 60-80 pounds. Id. at 7.
Amaral was not a regular Georges Banks' crewmember but, rather, filled in on approximately four trips in the 2017 calendar year. (#81-3 at 2.) During his fourth and final trip aboard the Georges Banks, around November 16th or 17th, Amaral informed Rui Branco, the Master of the Georges Banks, that he had injured his back lifting a basket of scallops. Id.2 Specifically, Amaral stated that "there was a big pop in [his] back[,]" and he "lost [the] strength [and] sensation in his legs." (#97-2 at 2.) Branco offered Amaral ibuprofen and icepacks and instructed Amaral to rest for the remainder of the trip. (#81-3 at 2.) Amaral has not worked on the Georges Banks since November 17, 2017. Id.
After he left the Georges Banks on November 17, 2017, Amaral's wife brought him to the Emergency Department at St. Luke's Hospital. (#81-4 at 13.) At that point, Amaral was complaining of "diffuse lower back pain . . . ." (#81-16 at 2.) An x-ray of Amaral's lumbar spine taken that day revealed "[m]ild multilevel degenerative charges with marginal osteophytes and facet hypertrophic changes" and "[m]ild vascular calcifications[,]" but "[n]o acute fracture or dislocation." (#81-19 at 6.)
Amaral followed up with his PCP, Stephen Mackler, M.D., on November 20, 2017. (#81-17 at 2.) He continued to complain of lower back pain, radiating down his left leg. Id. at 4. Dr. Mackler referred Amaral to a neurosurgeon and ordered a lumbar spine MRI. Id. at 5. On November 29, 2017, Amaral underwent his lumbar spine MRI, which revealed "[s]pondylosis[,] most prominently noted [at] L4-L5 with mildly more focal extruded disc material and an annular fissure." (#81-18 at 2, 4, 6.)
On December 14, 2017, Amaral began treating with a neurologist, Matthew F. Phillips, M.D. (#81-19 at 2-9.) At this point, Amaral continued to experience back and leg pain, but it had improved since his visit to the Emergency Department. Id. at 2. Dr. Phillips diagnosed Amaral with a lumbar disc bulge without myelopathy and back pain with left-sided radiculopathy and suggested various treatment options. Id. at 6. As of the date of his last visit on April 17, 2018, Dr. Phillips indicated that Amaral had "tried physical therapy, NSAIDS, spinal injections[,] and ESI without improvement." (#81-20 at 4.) Dr. Phillips' overall impression was that Amaral's condition was "unchanged[.]" Id. at 3.
Frustrated that his condition was not improving, Amaral sought a second opinion with Eugenio Martinez, M.D., who is board-certified in physical medicine and rehabilitation and affiliated with the New England Baptist Hospital. (#81-4 at 18; #81-8 at 5-6.) During Amaral's first visit with Dr. Martinez, on May 3, 2018, Dr. Martinez assessed Amaral with acute left-sided back pain with left-sided sciatica, piriformis syndrome on the left side, and myofascial pain. (#81-21 at 4.) Despite the fact that his previous physical therapy regimen had been unsuccessful, Dr. Martinez recommended that Amaral participate "in a brief course of exercise-based physical therapy" to improve his spinal function. Id. at 6. Dr. Martinez also prescribed a brief course of prednisone and recommended that Amaral undergo an updated lumbar MRI study. (#81-22 at 2.)
Amaral presented to Dr. Martinez for a follow-up visit on August 9, 2018. Id. at 2-4. Amaral had not begun his physical therapy regimen, and he denied any improvement in his symptoms after completing his course of prednisone. Id. at 2-3. Amaral's updated MRI revealed "[v]ery mild single level disc herniation . . . at L4-5," but "no focal herniation, lateral recess, central canal or foraminal narrowing, i.e. nerve root impingement." Id. at 2. Dr. Martinez againrecommended that Amaral consider a physical therapy regimen and also discussed "the option of a CT-guided piriformis trigger point injection[.]" Id. at 3.
Amaral completed his physical therapy regimen and presented to Dr. Martinez again on October 4, 2018. (#81-23 at 2.) Amaral reported that he was "essentially pain free" and that he felt that he was "ready to resume his usual occupational duties as a fisherman." Id. At that point, Dr. Martinez believed that Amaral "had reached maximum medical improvement[.]" (#81-8 at 30); see also #81-8 at 35, 37-38. Following the visit, Dr. Martinez signed a work release, permitting Amaral to return to work on October 5, 2018 in a full-duty capacity. (#81-24 at 2.)3
In October 2018, Amaral began working on the Blue Eastern (owned by BHF), with his first trip beginning around October 15th and his second trip beginning around October 27th. See #81-9 at 2-7; #81-10 at 2-7. When signing his contracts for both the October 15th and October 27th voyages, Amaral stated he submitted "complete and truthful 'Pre-Trip Medical Questionnaire[s].'" (#81-9 at 3; #81-10 at 3.) However, in the questionnaires for both trips, Amaral answered "no" when asked whether he had ever experienced any back pain. (#81-9 at 6; #81-10 at 6.) Amaral testified at his deposition that he did not disclose his back issues because he "wasn't questioned about any back injury." (#97-2 at 12.) Mike Rego, the son of the captain of the Blue Eastern, filled out the questionnaires and completed the contracts for him, due to the fact that he was "not a very good reader or speller[,]" and Rego already "knew [he] had been out of work for a year due to a back injury." Id. at 11-13.The only time Amaral actually put a pen to paper was when he signed the contracts for both voyages. Id. at 13.
Amaral testified that he did not experience pain during his first trip aboard the Blue Eastern, because he was not required to perform any manual labor due to a problem with the vessel. (#81-4 at 22; #81-9 at 2; #93-9 at 2.) However, once he started performing physical labor during his second trip in late October, his back "pain came right back" (#97-2 at 18), progressing to the point where he needed to leave the voyage early. (#81-11 at 2.) Amaral described his pain as "the same pain I had when I got injured on the Georges Bank[s]." (#93-11 at 2.) Despite his back issue, Amaral reported in an "end of . . . trip statement" that he "did not sustain an injury or illness during [his t]rip" on the Blue Eastern. (#93-13 at 2.) Amaral also testified that, in his opinion, he did not suffer a second injury or accident aboard the Blue Eastern. (#93-14 at 2.) Rather, the back pain he was experiencing resulted from his reported incident on the Georges Banks. Id. at 2-3; see also #93-15 at 3; #93-20 at 2-3.4
On October 31, 2018, Amaral followed up with Dr. Martinez again. (#81-25 at 2-6.) Dr. Martinez opined that Amaral had "ongoing latent myofascial dysfunction which was simply exacerbated by return to normal work activity in the past few weeks." Id. at 3. He noted that Amaral was unable to perform his usual job duties at that time and referred him for another course of physical therapy. Id. On...
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