DiBenedetto v. Williams, Civ. A. No. 93-0429ML.

• Citation: 880 F. Supp. 80
• Decision Date: 20 January 1995
• Docket Number: Civ. A. No. 93-0429ML.
• Parties: Joseph DiBENEDETTO and Heather DiBenedetto v. Thomas WILLIAMS and Catherine Williams, d/b/a F/V ROANN.
• Court: U.S. District Court — District of Rhode Island

880 F. Supp. 80

Joseph DiBENEDETTO and Heather DiBenedetto v. Thomas WILLIAMS and Catherine Williams, d/b/a F/V ROANN.

Civ. A. No. 93-0429ML.

United States District Court, District of Rhode Island.

January 20, 1995.

Thomas H. Quinn, Jr., Quinn, Shechtman & Teverow, Providence, RI, for plaintiffs.

Keith B. Kyle, Carroll, Kelly & Murphy, Providence, RI, and Thomas E. Stiles, Stiles & Wright, P.C., New York City, for defendants.

ORDER

LISI, District Judge.

The Findings and Recommendation of United States Magistrate Judge Robert W. Lovegreen filed on December 7, 1994 in the above-captioned matter is accepted pursuant to Title 28 United States Code § 636(b)(1).

REPORT AND RECOMMENDATION

LOVEGREEN, United States Magistrate Judge.

In this matter, plaintiff, Joseph DiBenedetto ("DiBenedetto"), has filed a motion to require defendants, Thomas and Catherine Williams ("Williams"), to pay maintenance and cure to him retroactive to the date of injury less any payments made by defendants. This matter was referred to me for preliminary review, findings and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and F.R.Civ.P. 72. Based on the following analysis, I recommend plaintiff's motion for maintenance and cure be granted.

Background

Plaintiffs filed this complaint in admiralty in this Court on August 12, 1993, alleging that DiBenedetto was a seaman in the employ of the defendants on the F/V ROANN prior to and including September 23, 1992. DiBenedetto alleges that on August 15, 1990, while aboard the F/V ROANN as a seaman, in the course of his duties, he was injured "while filling and lifting bait barrels which were defective in that they had lost their handles and not been repaired by the defendants, thereby injuring his right wrist." (Compl. ¶ 4.) DiBenedetto also alleges that on September 23, 1992, while aboard the F/V ROANN as a seaman, in the course of his duties, he was injured "when a rotted bull rope snapped and parted, thereby injuring his left wrist and arm." (Compl. ¶ 5.)

The complaint contains five counts. Counts I and II allege negligence and unseaworthiness as to the 1990 incident; Counts III and IV allege negligence and unseaworthiness as to the 1992 incident; and Count V seeks maintenance and cure from the defendants for the period of DiBenedetto's disability which he alleges is from September 23, 1992 and continuing.

On June 24, 1994, DiBenedetto filed his motion for maintenance and cure. A hearing was scheduled and held on August 24, 1994. Thereafter, the parties sought additional time to and including November 4, 1994 to determine if further testimony would be offered and to file proposed findings of fact and conclusions of law. I have now received these documents and the matter is now ready for a Report and Recommendation.

Plaintiff alleges that he has remained disabled since September 23, 1992. From that date to a period of time in July, 1993, defendants paid DiBenedetto maintenance and cure as a result of his 1992 injury to his left hand, wrist and arm. Thereafter, defendants contend that DiBenedetto was no longer disabled or that any disability was not causally related to the September 23, 1992 incident aboard the F/V ROANN.

Plaintiff testified that on September 23, 1992, he was employed by defendants as a deckhand on the F/V ROANN. He had held this position approximately three years. On September 23, 1992, the F/V ROANN was fishing in Block Island Sound. The fishing net had previously been set and was in the process of being retrieved when one of the ropes on the net broke. Plaintiff was on the starboard side of the boat just aft of the mid section. While attempting to get the fishing gear on board, plaintiff's left hand and arm became wedged between the side of the boat at the railing and the fishing net. The boat was rolling and the net was in motion. His hand was immediately painful, and he informed defendant, Thomas Williams, who was the owner and captain of the boat. Plaintiff continued to help retrieve the net and then sort out the catch. The boat returned to port that day and plaintiff sought medical attention at South County Hospital. His left hand was x-rayed and bandaged, and he was referred to an orthopedic surgeon, Dr. Jaime Chamorro. Plaintiff denied any problem with his left hand or wrist or any loss of employment therefrom for at least two years prior to this incident. Plaintiff was examined by Dr. Chamorro the next day and has not returned to work since.

On October 7, 1992, plaintiff admitted he was involved in a domestic dispute and the Narragansett police were called to the DiBenedetto home. Plaintiff had assaulted his wife with the back of his right hand. The police responded and eventually plaintiff was sprayed with pepper gas and pushed backwards onto the bed. One police officer placed a handcuff on plaintiff's left hand and eventually both hands were handcuffed behind his back. Plaintiff was placed in a police cruiser where he was again sprayed. He kicked out a rear side window of the cruiser with his left foot. As a result of his actions that day, plaintiff was arrested. However, he never sought any medical attention as a result of this incident, especially for his left hand, except for treatment to his eyes as a result of the spray. The next medical treatment he received was on his scheduled visit with Dr. Chamorro on October 13, 1992; at which time, the complaints concerning his left hand remained the same. Plaintiff testified that the only reason he has not gone back to work is the injury to his left hand.

As stated, upon returning home following this incident, DiBenedetto commenced treating with Dr. Jaime Chamorro, an orthopedic surgeon with an office in Wakefield, Rhode Island. Dr. Chamorro testified that DiBenedetto had treated with Dr. Chamorro on prior occasions, but not for a left wrist or hand injury. Dr. Chamorro first examined plaintiff on September 24, 1992 when he complained of a left hand injury, specifically, his left wrist, hand and fingers. Dr. Chamorro took a history from plaintiff that his left hand and forearm were caught between the rail of the boat and heavy fishing gear coming on board. The exam showed swelling in his wrist and tip of the fingers, but more pronounced in the metacarpal region and metacarpal phalangeal ("MP") joints of the fingers, especially the middle and ring fingers. Restriction of motion was present in the MP joints of the fingers. A neurological exam was performed to detect the sensation and motor function of the median, ulnar and radial nerves. This showed decreased sensation without any motor function deficit. X-rays revealed no fracture, dislocation or other bony abnormality. Dr. Chamorro made a clinical impression of acute sprain, left hand and believed DiBenedetto would be out of work a minimum of two weeks. Dr. Chamorro also opined that plaintiff's injury to his left wrist, hand and fingers was directly related to the September 23, 1992 incident on board the F/V ROANN.

Plaintiff was examined again by Dr. Chamorro on September 29, 1992 when he was noted to have decreased pain and swelling but complete restriction in range of motion ("ROM") of the wrist and small joints of the thumb and fingers. Plaintiff was doing well but remained unable to work.

On October 6, 1992, plaintiff was seen again by Dr. Chamorro with a complaint of continued pain in his left forearm, wrist and hand as well as the MP joint of the thumb. However, ROM was no longer restricted. Plaintiff was doing well.

On October 13, 1992, Dr. Chamorro's examination showed the same clinical findings without any significant improvement. Plaintiff remained disabled.

On October 20, 1992, Dr. Chamorro noted increased swelling and pain. A further x-ray examination was performed which suggested a fracture at the base of the thumb. There was no improvement and plaintiff remained disabled.

On October 29, 1992, pain persisted but ROM was improved. Overall there was mild improvement in plaintiff's condition.

Plaintiff was seen by Dr. Chamorro on six occasions in November and December, 1992 with continued pain but no swelling. He continued to do well, and he was prescribed exercises to strengthen his hand and forearm. He remained disabled.

During the first quarter of 1993, Dr. Chamorro examined plaintiff on nine occasions. There did not appear to be any noticeable improvement in plaintiff's left hand, wrist and forearm either subjectively or objectively. Dr. Chamorro did advise plaintiff to seek a second opinion from Dr. Gregory Austin, an orthopedic surgeon with a specialty in hand surgery.

During the second quarter of 1993, Dr. Chamorro examined plaintiff on seven occasions. There was no significant improvement. By May 5, 1993, Dr. Chamorro was of the opinion that he had treated plaintiff to the maximum of his ability and that plaintiff may not improve further or be able to return to his former employment as a seaman. However, Dr. Chamorro did send plaintiff for further testing, an EMG (a nerve conduction study), to determine if surgical intervention might be appropriate. The EMG of the left arm was performed by Dr. William Golini, a neurologist, on May 14, 1993. The EMG demonstrated a left-sided carpal tunnel syndrome which was moderate in severity and a mild ulnar compressive neuropathy in the region of the ulnar groove. Plaintiff was also referred to a medical facility for a work hardening program, functional capacity evaluation, vocational rehabilitation and a psychological evaluation. Unfortunately, that facility declined to accept plaintiff as a patient as he was not within the Rhode Island workers' compensation program.

Dr. Chamorro continued to examine plaintiff in July and August, 1993 and noted little if any improvement.

Plaintiff was next seen on January 21, 1994 with a complaint of pain in the left hand and thumb and a sensation of numbness. An examination by Dr. Chamorro revealed no swelling but pain with palpation. There was...