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Hedges v. Foss Maritime Co.

United States District Court, W.D. Washington, Tacoma

May 29, 2015

JEFFREY A. HEDGES, Plaintiff,
v.
FOSS MARITIME COMPANY, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW RE EVIDENTIARY HEARING ON MAINTENANCE AND CURE

RONALD B. LEIGHTON, District Judge.

This matter came on for an evidentiary hearing, before the Court, sitting without a jury, on May 14, 2015. Plaintiff Jeffrey A. Hedges (Hedges) was represented by Robert M. Kraft, Richard J. Davies and Marissa A. Olsson of Kraft Palmer Davies P.L.L.C., and defendant Foss Maritime Company (Foss) was represented by Barbara L. Holland and Tyler A. Arnold of Garvey, Schubert & Barer. The Court has considered the evidence presented at the hearing, the exhibits admitted into evidence, the arguments of counsel, and being fully advised, makes its Findings of Fact and Conclusions of Law as follows:

FINDINGS OF FACT

1. At all times material, plaintiff Jeffrey A. Hedges (Hedges) was a resident of the Southern Division of the Western District of Washington.

2. At all times material, defendant Foss Maritime Company (Foss) was a corporation doing business in the Southern Division of the Western District of Washington, was the owner and operator of the tug JUSTINE FOSS and Barge Z Big 1, and employed plaintiff as a member of the crew of the tug JUSTINE FOSS.

3. Hedges suffered a herniated disk while handling a heavy line working as a deckhand on a Foss tug on February 25, 2009. He continues to claim maintenance and cure. The cause and extent of Hedges's claimed injury is disputed and was not the subject of the evidentiary hearing.

4. Hedges sought medical treatment in Lake Charles, Louisiana and was diagnosed with a lumbar strain. He received treatment and was declared fit for duty without restrictions on June 12, 2009.

5. Hedges returned to work as a deckhand on a Foss tug in Alaska in June 2009. In July 2009, he sought treatment for back pain and was flown home to Seattle.

6. Hedges suffered a herniated disk at L5-S1, and has undergone a right L5-S1 hemilaminotomy and diskectomy for decompression of the exiting S1 nerve root by neurosurgeon Peter Nora, M.D. on September 30, 2009. After physical therapy, Dr. Nora advised in June 2010 that no further surgery was indicated.

7. In April 2010, Hedges submitted a Medical Evaluation Report to the U.S. Coast Guard which reported that he was capable of performing all ordinary and emergency shipboard tasks, and in which his doctor certified that he was physically competent to work.

8. In July 2010, Ted Becker, PhD performed a physical capacities evaluation on Hedges at the request of Plaintiff's counsel and reported that Hedges was capable of full time work.

9. On December 3, 2010, Hedges underwent an independent medical examination performed by Dr. James Pritchett, Chief of Orthopedic Surgery at Swedish Medical Center. Dr. Pritchett testified that Hedges's condition was fixed and stable at that time, that he had reached maximum medical improvement, and that no additional curative treatment was indicated. Dr. Pritchett also found that Hedges was capable of full time work as of June 2010.

10. On February 1, 2011, Paul Schwaegler, M.D., did an L5-S1 re-exploration with re-do decompression, including excision of a large re-herniation and a fat graft. Subsequently, the first part of a two part fusion procedure involving an anterior L5-S1 diskectomy, decompression, and fusion was performed by Dr. Schwaegler on June 11, 2012; the second part of the two part fusion, involving a posterior L5-S1 diskectomy, decompression, and fusion, performed by Dr. Schwaegler on June 28, 2012; and the removal of the surgical hardware that was the suspected cause of his ongoing chronic lower back pain and a neurolysis of the nerve roots to free them from infringement by surrounding structures, was performed by Dr. Schwaegler on November 5, 2013.

11. With the exception of medical billings from Seattle Spine Institute, LLC related to the four surgeries performed by Dr. Schwaegler which are in dispute and not the subject of this hearing, Foss has paid maintenance and cure to Hedges since soon after the injury pursuant to its maritime ...


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