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Andrews v. Dravo Corp.

decided: January 27, 1969.

WILLIAM ANDREWS
v.
DRAVO CORPORATION, APPELLANT



Biggs, Freedman and Van Dusen, Circuit Judges.

Author: Biggs

Opinion OF THE COURT

BIGGS, Circuit Judge.

I.

Andrews, a former crew member on certain of Dravo's vessels, recovered a verdict and judgment for $6,745 for maintenance and cure and a verdict and judgment for $30,360 as damages under the Jones Act.*fn1 The following appears from the evidence, taking the inferences most favorable to Andrews, and in substance is stated in the opinion of the court below denying Dravo's motion for a new trial. 288 F. Supp. 142, D.C. (1968). Andrews was employed as a deckhand upon Dravo's vessels on the Ohio River and its tributaries.*fn2 In June or July, 1962, Andrews slipped on gravel on a barge gunnell injuring his left little toe. He reported the injury to the barge captain. Andrews finished his hitch*fn3 and left the barge but went back to work on the same barge approximately a week later. His toe was then sore, swollen and discolored. Andrews showed the toe and foot to the barge captain who did not offer him medical attention or send him to Dravo's dispensary, readily available. Instead the captain allowed him to go to his home in Cambridge Springs, Pennsylvania. There Andrews consulted Dr. Verinisi, his family doctor, an osteopath. Dr. Verinisi diagnosed his condition as dry gangrene due to arteriosclerosis. On August 29, September 17 and 26, 1962, Andrews was examined by Dravo's doctors at its dispensary. On September 26 Dr. Marshall, at the dispensary, diagnosed Andrews' condition as "serious peripheral vascular deficiency and thromboangiitis obliterans".*fn4

Tests showed that Andrews was also a mild diabetic which complicated his other prior existing illnesses. At no time did Dravo's doctors secure for him the specialized treatments which his condition required. He was told to go to his family doctor, Dr. Verinisi, who hospitalized him in the Erie Osteopathic Hospital where he received some treatment for diabetes and his other ailments. Dr. Marshall of Dravo's clinic stated that Andrews mentioned symptoms "suggestive of mild intermittent claudications." He told Andrews that he should dress his feet warmly and wear "safety toe shoes". Andrews was rehired by Dravo on November 19, 1962 and was returned to heavy work as a deckhand. This aggravated his diseases and hastened his total and permanent disability. It is undisputed that after his return to work in November 1962 Andrews was "having a hard time of it." He was limping and complaining.

On February 21, 1964 Andrews was still serving as a deckhand on a Dravo towboat. The captain was maneuvering the vessel with tow out of Emsworth Lock and a face wire slipped off a kevel and fractured Andrews' left thumb. He reported the injury to the captain who did not send him from the vessel for medical attention until the following morning. Again no specialized medical care was given him for his vascular diseases and he was permitted to return home with his hand in a cast. Maintenance at the rate of $47.50 was paid to Andrews for four weeks. He was permitted to return to heavy work as a deckhand in April 1964, but was discharged on June 2, 1964.*fn5

Andrews became totally and permanently disabled several months after he was discharged, his vascular diseases having progressed to the point where he was unable to work. Dr. Sherman, testifying for Andrews, stated there was a causal connection between the injury to Andrews' foot and his permanent disability which Sherman found to exist on his examinations of Andrews on March 3, 1966 and May 20, 1967, and that the two injuries probably aggravated his condition and produced the disability. Dr. Wolfe, testifying for Andrews, stated that the injuries sustained by him aggravated his preexisting arterial diseases and that he was totally and permanently disabled. There was also medical testimony that after his toe injury Andrews should have had adequate specialized medical attention and should not have been permitted to work as a deckhand. Dr. Wolfe testified that if he had been given proper early treatment and had not sustained further damage to his circulation he could have performed work of a less dangerous nature. There was medical evidence that there were "curative" techniques known to medical science which might have been of aid to Andrews.

II.

The first questions presented are whether the jury was entitled to find that the injury to Andrews' toe (1962) was caused by the negligence of Dravo's officers or the unseaworthiness of the barge, and whether the injury to his thumb (1964) was caused by the negligence of Captain Woods while putting Dravo's towboat and barges through the Emsworth Lock, in the light of the evidence. The answers clearly are "Yes".*fn6 It follows that Dravo is liable for maintenance and cure for Andrews and was liable for damages under the Jones Act, 46 U.S.C. ยง 688.

The next question presented is whether or not Andrews, prior to his toe injury in 1962, had serious vascular disease and mild diabetes.*fn7 The record shows that at the time of the 1962 injury he had thromboangiitis obliterans, Buerger's disease.*fn8

The next pertinent fact questions may be grouped together as follows: (1) Were Andrews' preexisting vascular diseases aggravated by his toe and thumb injuries; (2) did Dravo's failure to afford Andrews proper specialized medical care following the injuries aggravate his diseases; (3) did Dravo's causing Andrews to work as a deckhand aggravate his diseases; and (4) did the effects of the foregoing "singly and cumulatively," as the court below put it, aggravate his diseases? There was ample evidence to support the jury's*fn9 and the court's affirmative answers to the foregoing four questions.

There is no dispute that Andrews was discharged on June 2, 1964. Whether he was rightfully or wrongfully discharged is immaterial in respect to the issues here presented.*fn10 Following that discharge Andrews' condition continued to progressively deteriorate because of lack of care for his vascular disease. It was necessary for him to have two operations at the Pittsburgh Veterans Hospital to cure blockage of arteries leading to his legs and he also had a heart attack which required two months' hospitalization. We state that on the present record the jury was entitled to find, as it apparently did find, that Andrews' total disability occurred after June 2, 1964 and that he reached the point of maximum cure after that date. As stated by the court below the verdict of the jury indicated that it found that the time of maximum cure occurred prior to the end of the trial on May 31, 1967.*fn11

We are troubled by the fact that no exact point in time appears in the record at which it can be said with complete definiteness that Andrews reached the point of maximum cure. He is entitled to maintenance and cure to that point in time. The parties agreed that maintenance and cure would be paid at the rate of $47.50 a week and according to our calculation Andrews did not work 176 weeks between the time of his first injury, June or July, 1962, and the last day of trial, May 31, 1967, the period for which he claims compensation. Obviously if the jury had considered that his maximum cure occurred on the last day of trial they could have awarded him at least $2,000 more by way of maintenance and cure. Cf. note 9 cited to the text, 288 F. Supp. at 147. The amount of the Jones Act judgment lay in the hands of the jury and that body seems not to have exceeded a justifiable sum. But in any event we cannot usurp the province of the jury for it was the jury's duty under a proper charge, which the court gave, to settle this fact. Moreover Dravo does not attack, insofar as we can ascertain from its somewhat indefinite argument, the amount of the recovery for maintenance and cure but asserts that Andrews was not entitled to any recovery because he "encountered the risk of possible serious consequences from trivial ...


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