Loftin v. Kirby Inland Marine, L.P.

• Decision Date: 07 July 2007
• Docket Number: Civil Action No. 1:06-CV-739.
• Citation: 568 F.Supp.2d 754
• Parties: Curtis M. LOFTIN, Plaintiff, v. KIRBY INLAND MARINE, L.P., Defendant.
• Court: U.S. District Court — Eastern District of Texas

568 F.Supp.2d 754

Curtis M. LOFTIN, Plaintiff, v. KIRBY INLAND MARINE, L.P., Defendant.

Civil Action No. 1:06-CV-739.

United States District Court, E.D. Texas, Beaumont Division.

July 7, 2007.

COPYRIGHT MATERIAL OMITTED

Dennis L. Brown, Attorney at Law, Emmanuel Nick Cokins, of Law Office of Dennis L. Brown, Houston, TX, for Plaintiff.

Dennis John Sullivan of Stepp & Sullivan, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

MARCIA CRONE, District Judge.

Pending before the court is Plaintiff Curtis M. Loftin's ("Loftin") Motion for Emergency Relief as to Determination of Entitlement to Maintenance and/or Cure (# 11). Loftin alleges that on February 22, 2006, he was injured while performing his regular duties aboard the M/V El Paso, thereby injuring his back and other parts of his body. He claims that his injuries were caused by Defendant Kirby Inland Marine, L.P.'s ("Kirby") Jones Act negligence and the unseaworthiness of the M/V El Paso. Loftin contends that he is entitled to maintenance and cure before trial on the merits of his claims. Conversely, Kirby argues that triable issues of fact remain as to the circumstances of Loftin's injuries and therefore maintains that the motion should be denied. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Loftin is not entitled to relief at this juncture.

I. Background

Kirby hired Loftin in October 2005 as a deckhand/tankerman trainee. In connection with the application process, Loftin was required to complete a standardized health history questionnaire and submit to a pre-employment physical examination. On the "Personal Health History" portion of the questionnaire, Loftin listed two previous back surgeries—a laminectomy/diskectomy in 1991 and 1994. In response to a subsequent question regarding work-related accidents, Loftin failed to disclose that these surgeries stemmed from an injury he sustained while performing his regular duties in the U.S. Navy. In fact, he noted only one minor work-related injury—a bruised foot, which he suffered in 2005 while working as a machinist for Elite Precision Fabricators.

On October 31, 2005, U.S. Healthworks in Houston, Texas, performed a pre-employment physical examination of Loftin, which incorporated a review of his completed questionnaire. The medical examiner inquired further about Loftin's two prior surgeries as well as his foot injury. Loftin, as indicated by the medical examiner's comments on the questionnaire, denied any lingering problems in these areas. Specifically, in terms of the two prior surgeries, Loftin conveyed to the medical examiner that he did not have residual problems with his range of motion or back strength. Accordingly, Loftin was deemed fit for service.

On February 22, 2006, Loftin was serving as a deckhand/tankerman trainee aboard the M/V El Paso, a vessel owned by Kirby. When his shift began around midnight, the M/V El Paso was moored alongside two barges. The previous shift, then relieved by Loftin and other crew members, had been preparing to connect the two barges with a crossover hose.¹ A crane attached to the M/V El Paso lifted the heavy crossover hose from the vessel and placed it on the deck of one of the barges. Two tankermen from the M/V El Paso then lifted the hose—one in front and the other in the middle of the hose. They then moved the hose a few feet before asking Loftin for assistance. Complying with his crew members' request, Loftin picked up the rear of the hose by the steel plate. Loftin alleges that, only moments later and without warning, the other two tankermen dropped the hose, causing Loftin to fall to the deck. Although Loftin initially indicated that he experienced some physical discomfort from his fall, he stated that he was "more embarrassed than anything" and continued to work until his shift ended at 6:00 a.m.

Following this shift, Loftin transferred to another vessel owned by Kirby, the M/V Roan, where he worked two shifts. Loftin claims that, during his first shift, the pain from his fall on the M/V El Paso began to intensify, impacting his job performance. The captain noticed Loftin's difficulty with his assigned duties and confronted him. At that time, Loftin informed the captain of the events aboard the M/V El Paso and indicated that he was currently in pain. The captain responded by asking Loftin if he would like to file a formal report. Loftin declined, stating that he "wanted to keep working."

Taking into consideration Loftin's alleged condition, the captain assigned him to a less strenuous task during his second shift—painting the engine room. Loftin painted an area about the "size of a chair" before claiming to be overcome with pain. He then decided to file a formal report with the captain and requested to be taken ashore. The captain complied and immediately contacted Kirby. The vessel interrupted its operations at sea to rendezvous with a Kirby driver at a dock near Beaumont, Texas. The driver transported Loftin to the emergency room at San Jacinto Methodist Hospital in Baytown, Texas. Although the details of Loftin's emergency room visit are not currently before the court, the record reflects that Loftin spent several hours at the hospital and was ultimately administered an injection for his pain.

Concurrent with Loftin's emergency room visit, Kirby initiated steps to provide Loftin with additional care. Kirby arranged transportation from San Jacinto Methodist Hospital to Wilson Hall, a Kirby facility where Loftin was provided temporary accommodations. An appointment with U.S. Healthworks was also scheduled for the following morning, as well as round-trip transportation to that facility in Houston.

On February 24, 2006, two days after his alleged injury, Loftin arrived for the first of a series of appointments that continued through March 23, 2006. During this period, Loftin received physical therapy treatments, medication, and an MRI on March 6, 2006. U.S. Healthworks also referred him to an orthopedic surgeon, Dr. David Vanderweide ("Dr. Vanderweide"), for an examination. Dr. Vanderweide performed a physical examination on March 13, 2006, which involved a neurological evaluation² of Loftin's cervical spine. He also performed a Tinel's test, "another extension of the neurological evaluation in the peripheral skeleton." These tests are designed to reveal nerve damage. Dr. Vanderweide found nothing abnormal with regard to Loftin's test results. Additionally, he reviewed the MRI report, which indicated that the soft tissue strains to Loftin's neck and lower back were superimposed upon existing, significant degenerative changes in his back. The MRI report, according to Dr. Vanderweide, also revealed a bulging disc stemming from an undetermined cause. He concluded, however, that the degenerative changes were not likely to be caused by the incident aboard the M/V El Paso, as "these changes were long-standing in nature and require a long period of time to evolve." He recommended the continuation of physical therapy and concluded that Loftin did not need surgery.

Dr. Vanderweide subsequently referred Loftin to Dr. Michael Graham ("Dr. Graham"), an orthopedic surgeon who specializes in spinal conditions. Dr. Graham first saw Loftin as a consulting physician on March 30, 2006. At that time, Loftin's principal complaint was of lower back pain radiating into both legs. Dr. Graham inspected a copy of Loftin's MRI report and concluded that Loftin suffered from advanced degenerative disc disease, arthritis, and a bulging disc. He indicated that these conditions were not due to an acute injury, but that the problem had existed for "many, many years." Dr. Graham also performed a physical examination of Loftin, which yielded no "significant muscular paralysis or weakness of his legs" and revealed that Loftin's "reflexes were within, normal limits." According to Dr. Graham, these results signify that Loftin's "nerves in his lower back were all working properly on the date that [he] examined him." Additional tests showed the absence of a pinched nerve. Thus, Dr. Graham determined that any type of invasive treatment would be premature. Further, he indicated that generally, patients with this type of injury should first undergo six months to one year of comprehensive conservative treatment consisting of weight loss, exercise, physical therapy, chiropractic treatment, and medications. Specifically, Dr. Graham prescribed Celebrex, a widely used anti-inflammatory medication, to be taken concurrently with the vicodin, zanaflex, and iodine already prescribed to Loftin.

On May 2, 2006, during a follow-up visit with Dr. Graham, Loftin indicated that his back pain had not improved. He also reported that he had neglected to commence the recommended physical therapy. Accordingly, Dr. Graham advised Loftin to see his primary care physician for a complete medical evaluation to make sure that he did not have any non-orthopedic problems contributing to his current symptoms. Dr. Graham also recommended that Loftin commence four weeks (three times a week) of physical therapy with the Spine & Rehabilitation Center. Loftin complied and met with Dr. Todd Custer ("Dr. Custer") a chiropractor, at the Spine & Rehabilitation Center on May 23, 2006. Dr. Custer provided Loftin physical therapy three times a week for four weeks and continued with additional tests.

Loftin returned to Dr. Graham's office on June 13, 2006. At that time, Loftin informed Dr. Graham that his condition was improving. Dr. Graham then recommended that Loftin continue with physical therapy and scheduled an additional follow-up appointment in July 2006. Loftin never returned to Dr. Graham's care. Loftin, however, continued to meet with Dr. Custer, obtaining multiple chiropractic and physical therapy treatments. In all, Loftin had twenty-one visits with Dr. Custer, ending February 20, 2007. During these visits, Loftin...