The opinion of the court was delivered by: SNYDER
Plaintiff, Michael Roy Coughenour, a seaman, brought this action for Maintenance and Cure against his employer, Campbell Barge Line, Inc. (Campbell), and for counsel fees and medical expert witness fees. The case was tried to the Court without a jury.
Plaintiff's version of the occurrence may be summarized as follows: While employed by Campbell as a deckhand on board the Defendant's motor vessel, Delta, Coughenour claims he was injured in the early morning hours of September 5, 1973, when he slipped and fell while attempting to throw a rope from one barge to another, and that as a direct result of this fall, he incurred injuries to his back and lower left leg and foot. These injuries have occasioned him much pain and necessary incidental medical expenses. Shortly after his fall, the Plaintiff was put ashore and taken to the Divine Providence Hospital in Pittsburgh, where he was X-rayed and released. Subsequently, while still in pain, he returned to work on the same vessel, and on a later occasion a different vessel, but each time was unable to perform the duties incidental to his work as a deckhand because of his injuries. Finally, he left the Defendant's employ altogether and has not returned. While the Plaintiff has been examined and treated by numerous physicians, and although he has improved, he claims that he has not reached a point of maximum cure.
The Defendant denies that maintenance and cure is owing to the Plaintiff. Campbell denies knowledge of any such accident or that the Plaintiff sustained any injuries, and maintains that if he has any problem with his back and/or foot, it is the result of some occurrence while the Plaintiff was not in the service of one of its vessels. Defendant contends that the Plaintiff was dissatisfied with his job as a seaman and quit on his own accord, and not as the result of any alleged injuries incurred while a deckhand for the Defendant.
Based upon all of the evidence, including the hospital records, testimony and depositions produced at the Non-jury Trial, the Court makes the following
1. Plaintiff is a nineteen year old seaman, with a ninth grade education, who began his employment with the Defendant on August 23, 1973.
2. Shortly after midnight on September 5, 1973, while engaged in his duties as a deckhand on the Defendant's motor vessel, Delta, the Plaintiff slipped and fell while attempting to secure a line on a barge which was in tow.
3. After the Plaintiff rested awhile, he notified the pilot of the vessel, Peter John Alouise, who in turn contacted the Marine Superintendent by radio, and was directed to put the Plaintiff ashore for medical attention.
4. Plaintiff was taken to Divine Providence Hospital in Pittsburgh, where he was examined, X-rayed, and diagnosed as having incurred a "lumbar sprain". No medical history is disclosed from the Hospital records. (Tr. 8-9, Pltf.Exh. 1)
5. On the next day, the Plaintiff returned to the vessel Delta and attempted to do his work as before, but had some pain. After five or six days, he felt he could continue no longer, and on approximately September 11, 1973, he went home to rest for awhile. (Tr. 9, 41)
7. Plaintiff never thereafter returned to work for Campbell, and did not subsequently communicate with anyone from the Defendant Company. (Tr. 11)
8. Some time later, however, the Plaintiff entered the employ of M & G Transport Services, Incorporated (Tr. 60, Deft.Exh. 2), another towing company, but remained only for a period of five or six days. Thereafter, the Plaintiff worked periodically on his father's tobacco farm, and for two days at the Scott & Dillon Tobacco Company. (Tr. 62-67)
9. Since his accident the Plaintiff has received treatment from Dr. Samuel Sherman in Pittsburgh, and Doctors Coronel, Burner and Thaler of the Holzer Medical Center in Gallipolis, Ohio. (Pltf.Exhs. 2 through 2(d))
10. Dr. Sherman, a specialist in rehabilitative medicine, diagnosed Coughenour's condition as lumbosacral strain, post-traumatic anxiety reaction, and possible discogenic patholog, lumbar. Doctor Sherman considered the Plaintiff's foot problems to be the result of a "dropped foot" condition, and corroborative support thereof was given by Dr. Thaler's prescription of a foot brace. (Pltf.Exh. 2) Both of these physicians recommended that an electromyographic test be performed. However, it is clear that the Plaintiff's condition had considerably improved since he was last examined by Dr. Sherman in June of 1974. The deposition of Doctor Lowell B. Lubic, a specialist in neurology, as introduced by Defendant discloses that Plaintiff has a moderate weakness in his left leg, but that this condition is the result of a lumbosacral strain without neurological involvement. According to the history taken by Dr. Lubic and supported by the Doctor's findings, Plaintiff's complaints of numbness and weakness developed approximately two months after his initial injury.
11. In the Plaintiff's signed statement provided to Campbell's investigator at a personal interview at the Plaintiff's home (Deft. Exh. 1) there were some inconsistencies with the Plaintiff's testimony at trial and with statements in his deposition, but viewed by the Court, as the finder of fact, these do not rise to such a level as to ...