Saco v. Tug Tucana Corp.
| Decision Date | 30 March 2007 |
| Docket Number | Civil Action No. 03-12551-MBB. |
| Citation | 483 F.Supp.2d 88 |
| Parties | Frank SACO, Plaintiff, v. TUG TUCANA CORPORATION, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
David B. Kaplan, Brian Keane, The Kaplan/Bond Group, Boston, MA, for Plaintiff.
Terence G. Kenneally, Thomas J. Muzyka, Clinton & Muzyka, Boston, MA, Cristen C. Lebel, Marshall, Crane & McAloon, Burlington, MA, for Defendants.
MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION TO INCREASE MAINTENANCE AND CURE (DOCKET ENTRY # 55)
Plaintiff Frank Saco ("Saco"), a seaman working on board the Tug Tucana at the time of the accident, seeks to increase the maintenance and cure paid to date by defendant Tug Tucana Corporation ("defendant"). (Docket Entry # 55). After filing the motion, Saco filed an addendum clarifying a number of issues raised in the original motion. (Docket Entry # 59). Defendant opposes the motion. (Docket Entry # 58). After conducting a hearing on December 21, 2006, this court took the motion to increase maintenance and cure (Docket Entry # 55) under advisement.
The three count complaint seeks recovery based upon Jones Act negligence, unseaworthiness and maintenance and cure. In January 2006, a jury rendered a verdict for defendant with respect to the negligence and unseaworthiness claims.
On April 13, 2003, Saco, a longtime fisherman who presently lives in Manchester, Massachusetts, was working aboard the Tug Tucana as a deckhand. Saco had heard about the job through a friend and, more notably, was not a member of any maritime union.
While the Tug Tucana was attending barges in Beverly Harbor and heading into shore for a crew change, Saco, a member of the crew and 62 years old at the time, was in the process of moving a hawser. While performing this task, he tripped and fell. He sustained an injury to his right mid-foot resulting in a Lisfranc fracture.
He was taken to Beverly Hospital, X-rayed and underwent surgery the following day. Robert M. Wood, M.D. ("Dr. Wood") performed the surgery consisting of an open reduction and internal fixation with three screws to stabilize the foot. Saco was placed in a cast and had at least two follow up visits with Dr. Wood.
A second surgery took place on July 15, 2003, during which Dr. Wood removed the three screws. A few weeks later, Saco began physical therapy at the Beverly Sports Medicine and Rehabilitation Center ("the rehabilitation center") in Beverly, Massachusetts. From August to November 2003, Saco had 26 "medically necessary" (Ex. 2)2 physical therapy visits at the rehabilitation center.3 Round trip by automobile from Saco's residence to the facility is 20 miles. During this time period, Saco continued to experience soreness and pain in his right foot. The November 13, 2003 physical therapy note describes Saco as reaching a plateau.
Saco underwent a third surgery on January 21, 2004. Hospital records reflect the diagnosis of mid-foot degenerative joint disease. Dr. Wood performed the surgery consisting of an attempted mid-foot fusion with synthetic bone grafting material and screws. The operative report notes the presence of degenerative joint disease. Although X-rays taken in May 2004 revealed normal foot position and "good hardware position" (Ex. 14), Saco continued to experience pain. Follow up visits with Dr. Wood at the Sports Medicine North Orthopedic Surgery office in Peabody, Massachusetts took place on May 13, July 1, August 19 and September 2, 2004.4 (Ex. H). Notes from these visits uniformly reflect Saco's continued reports of pain in the mid-foot area. A July 2004 radiology report notes the impression of a loosening of certain screws.
In 2004, Saco underwent 20 physical therapy visits at the rehabilitation center after the January 2004 surgery.5 Saco continued to experience pain in the right foot with swelling and discoloration after walking approximately half a mile. Dr. Wood eventually advised Saco that there was nothing further that he could do. (Trial, Day 3).
On October 29, 2004, Saco had his first visit with Dr. Chiodo. Saco complained of persistent pain in the mid-foot which became worse with walking. Dr. Chiodo ordered a computer assisted tomography scan ("CT scan") to assess the status of the fusion. Saco had a follow up visit with Dr. Chiodo on November 2, 2004.
The November 2, 2004 CT scan indicated a nonunion at two joints. Accordingly, Saco underwent a fourth surgery on June 2, 2005, consisting of a removal of the old hardware, a bone graft and an attempted second fusion with a screw and a plate. Dr. Chiodo performed the surgery at the Faulkner Hospital in Boston. The operative report notes the existence of a gross nonunion at one joint and the appearance of a union at another joint.
On June 14 and 28, 2005, Saco had follow up visits with Dr. Chiodo at the Brigham and Women's Hospital. At that time, Saco was experiencing a "[s]atisfactory postoperative course" albeit with a hema-toma underneath the right knee at the bone graft donor site. (Ex. 3).
Dr. Chiodo conducted another follow up examination of Saco at the Brigham and Women's Hospital on July 19, 2005. Radiographs taken that day6 revealed "excellent apposition and hopefully healing of the fusion," according to Dr. Chiodo's medical note. (Ex. 3). Saco was placed in another cast and instructed to remain non-weight bearing for six weeks.
Additional radiographs taken on August 30, 2005, showed continued healing. During the follow up visit that day with Dr. Chiodo at the Brigham and Women's Hospital, Saco reported "no pain." (Ex. 3). Dr. Chiodo placed Saco into a walking boot cast with instructions to wean himself from crutches during the next four weeks.
On October 11, 2005, Dr. Chiodo conducted another examination at the Brigham and Women's Hospital. Describing Saco as "doing extremely well," Dr. Chiodo gave Saco a prescription for an orthotic. (Ex. 3). Radiographs showed continued healing of the fusion. Saco reported "mild aching with ambulation" and continued improvement. (Ex. 3).
On October 26, 2005, Sally Rudicel, M.D. ("Dr.Rudicel"), an Associate Professor of Orthopedic Surgery at Tufts New England Medical Center, conducted an independent medical examination of Saco. In her opinion, he was not at an end point of maximum medical improvement, because "[t]he usual time to maximum medical improvement after a mid-foot fusion is 1 year." (Ex. 5).
During the December 13, 2005 visit with Dr. Chiodo, Saco reported persistent pain at the proximal end of the plate. Looking at the CT scan taken that day, Dr. Chiodo felt that the majority of the fracture was healed. Saco was experiencing persistent pain and he agreed to undergo a fifth surgery to remove the plate.
On March 3, 2006, Dr. Chiodo performed the surgery to remove the plate. The record fails to contain an order that Saco was not ambulatory after the surgery or was ordered to remain off his feet. Laurie Carr ("Carr"), a certified nurse's aide, drove Saco to and from the Brigham and Women's Hospital for the surgery. She charges $20 per hour. Having been a certified nurse's aide for the past 25 years, Carr presently works at an assisted living facility in Beverly.
From March 3 to April 16, 2006, Carr spent a total of 196.5 hours caring for Saco at his home.7 During these visits, Carr spent an undetermined amount of time assisting Saco's 94 year old mother. In addition to the hours spent transporting Saco to and from the Brigham and Women's Hospital on March 3 and 21, 2006,8 Carr's tasks included preparing meals, doing laundry, cleaning, removing trash, shopping for food, changing bed linens and going to the post office and drugstore. Neither Dr. Chiodo nor any other doctor prescribed this type of assistance for Saco after the March 2006 surgery.9 Saco testified that he needed the assistance because when he came home from the hospital he could not handle these tasks himself. Significantly, Saco avers that he "incurred" bills for Carr's services and attaches a list of the amounts, dates and nature of the services provided.10 Saco seeks a payment for these services at the charged hourly rate of $20 for a total amount of $3,930.
After the March 2006 surgery, Saco continued to experience pain. At an August 2, 2006 follow up visit with Dr. Chiodo at the Brigham and Women's Hospital, Dr. Chiodo noted that radiographs "show what appears to be a solid fusion." (Docket Entry # 59, Ex. 2). Saco had a normal gait but continued to report mild pain when "he is on his foot for any prolonged period of time." (Docket Entry # 59, Ex. 2). Dr. Chiodo also stated, albeit somewhat equivocally, that, "At this point, I suspect that [Saco] has some deconditioning and perhaps he may benefit from some rehab with conditioning and range of motion exercises." (Docket Entry # 59, Ex. 2). Dr. Chiodo provided Saco with a prescription for conditioning exercises for the right foot.
Saco underwent three weeks of physical therapy. The therapy improved his gait to the degree that he was able to walk on the beach for one or two hours, according to Saco. Physical therapy terminated, however, because the insurer refused to cover the cost. (Docket Entry # 58, Ex. J).11
On October 4, 2006, Hyman Glick, M.D. ("Dr.Glick"), a board certified orthopedic surgeon, conducted an independent medical examination of Saco. After an exhaustive recitation of the medical records, a summary of Saco's statements during the examination, a review of numerous X-rays and a physical examination, Dr. Glick opined that the pain Saco continues to experience was not unusual or inconsistent with the nature of his injury. Consistent with Dr. Chiodo, Dr. Glick believed that the repeat fusion surgery achieved a solid fusion. According to Dr. Glick, Saco has a loss of hindfoot inversion, a stiffness in his large right toe and a 12% impairment of his right foot. Dr. Glick opined that, "He is at a...
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