on the evidence before us, nor can we easily predict any future loss of earning capacity where plaintiff has worked fairly regularly since April 11, 1978. We cannot find, as a matter of fact, that his earning capacity will be reduced over the balance of his remaining work life, nor can we say that there is any relationship between the injury and his ability to teach sufficient to enable him to establish future earning loss in that area.
On the other hand, medical testimony, although not establishing future employment impairment, did establish the probability of recurring pain and discomfort.
In addition to the doctor's visits previously discussed, plaintiff received physical therapy on various occasions during late 1977 and again in May, 1978, at the Rochester Unit. He was also examined by Dr. John Sherman, an employee of defendant, and Dr. Samuel Sherman (no relation), another physician.
He sustained the following bills as a result of the accident of September 4, 1977:
(Dr. Radler's bill was paid by the defendant.) We find all of these bills to be reasonable.
The plaintiff's earnings for the first eight months of 1977 were $ 12,652.56. His rate of pay on September 4, 1977 was $ 6.743 per hour or $ 53.95 daily. For the 123 actual work days lost, plaintiff would have received $ 6,635.85 in earnings.
The parties have stipulated that during this period, plaintiff was paid $ 5,573.80 in compensation under the Longshoremen and Harbor Workers' Compensation Act.
Conclusions of Law
Plaintiff was an employee of the defendant, The Pittsburgh and Lake Erie Railroad Company, on September 4, 1977. At the same time, by virtue of its ability and responsibility to control the barges it was unloading, the Pittsburgh and Lake Erie Railroad was the owner Pro hac vice of the barge upon which the plaintiff was injured. The defendant's negligence caused the plaintiff's injuries; the plaintiff was not contributorily negligent in any respect. Moreover, assumption of the risk is not an available defense. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S. Ct. 262, 83 L. Ed. 265 (1939).
The plaintiff was a seaman within the scope of the Jones Act, 46 U.S.C. § 688, because he was aboard the subject barge for the purpose of moving it on the Ohio River, a navigable water. Legally, the barge was a vessel in navigation. His position on September 4, 1977 as a boat spotter required him to ride barges, to secure and payout cables, to make up lines, to light the vessels, pump them, and do all the handling of the barges during the time they were in defendant's possession and control. See Mach v. Pennsylvania R. R. Co., 317 F.2d 761 (3d Cir. 1963); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), Cert. denied 423 U.S. 1054, 96 S. Ct. 785, 46 L. Ed. 2d 643 (1976); Simko v. C&C Marine Maintenance Co., 594 F.2d 960 (3d Cir. 1979). The defendant is therefore liable to the plaintiff under the Jones Act. Mach, supra.
As a Jones Act seaman injured in the course of his employment, Mr. Cheuvront is entitled to maintenance and cure for the time not worked while undergoing curative treatment. Ambiguities or doubts in the awarding of maintenance and cure are to be resolved in favor of the seaman. Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962). "Maintenance" is the equivalent of food and lodging to which a seaman is entitled while at sea, if ill or injured, and "cure" is the equivalent of medical care to which an ill or injured seaman is entitled while at sea. Cox v. Dravo Corporation, 517 F.2d 620 (3d Cir. 1975). In Cox, the Third Circuit held that maintenance and cure are independent of compensatory damages. 517 F.2d at 623.
The parties have agreed that the maintenance and cure award, if proper, is to be in the amount of $ 8.00 per day during the period of curative treatment. The plaintiff here is entitled to $ 8.00 per day for the 218 days from September 4, 1977 to April 11, 1978, or a total of $ 1,744.00. Because maintenance and cure is intended as a daily sum during a period of recuperation, Cox, supra, at 623-25, it is awarded for each calendar day from September 4, 1977 to April 11, 1978 rather than for each actual work day.
Although we have not found that the plaintiff's future earning capacity will be impaired and will not award a lump sum for future tangible losses, we believe the plaintiff is entitled to an additional amount for past pain and suffering which has been established, and for future pain and suffering which is intangible but predictable. From the eyewitnesses' testimony, plaintiff experienced a traumatic and probably quite frightening accident. None of the experts disputed the fact that plaintiff experienced immediate pain and lingering effects for at least three months. There was also testimony to the effect that there is often recurring pain and discomfort following back injuries.
Plaintiff is entitled to recover
Because we find the defendant liable under the Jones Act for the plaintiff's injuries, we need not consider his claim under maritime law of the unseaworthiness of the vessel. See Cox, supra, at 622. Any damages awarded under that claim would be cumulative. However, the entitlement we have outlined must be reduced by the amount of benefits paid to the plaintiff by the defendant under the Longshoremen and Harbor Workers' Compensation Act. One case cited by the plaintiff to the contrary involved payments of compensation by an employer and later damage awards against third persons, Pope & Talbot v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1953); another involved an employer's attempt to set off a third party's expenditures against the plaintiff's recovery, Isbrandtsen Co. v. Johnson, 343 U.S. 779, 72 S. Ct. 1011, 96 L. Ed. 1294 (1952); the third involved a set-off of an out-of-court settlement rather than statutory compensation, Dobbins v. Crain Brothers, Inc., 567 F.2d 559 (3d Cir. 1977). More on point is the case of Massey v. Williams-McWilliams, 414 F.2d 675 (5th Cir. 1969), where another seaman who had collected compensation under the Longshoremen's Act sued under the Jones Act. The Fifth Circuit held:
Because the payments were made by the employer and not a third party, we are not faced with the usual problems of the collateral source doctrine. And, since the payments were made directly on behalf of the employer pursuant to a statutory scheme whose purpose it is to compensate at least to a degree the pecuniary loss as sustained by an employee from an injury received in the course of his work, we think it fair in the confusion of these ambiguous-amphibious controversies to require, not a repayment as such, but rather a credit against those items of damages ultimately allowed that bear a reasonable relation to the items of loss compensated by workmen's compensation benefits.
414 F.2d at 679-80 (citation omitted). See also Freeman v. Norfolk and Western Ry. Co., 596 F.2d 1205, 1208 (such a set-off avoids unjust enrichment). Therefore, the amount of $ 5,573.80 in compensation will be deducted from the total entitlement of $ 12,273.85.
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