Read Full Decision - Wakeley vs. Knutsen Towboat Company
Excerpt, p 33..
The Respondents further question the Claimant’s credibility because he did not mention
the accident to anyone until almost a week later. ((See Respondents’ Closing Brief, pp. 22-23;
HT, p. 181 (did not tell supervisor Mr. Ketchum or Mr. Knutson about his accident the last week
he worked); CX 7, pp. 21H, 21K (did not tell coworker Mr. King).) Mr. King and Mr. Ketchum
might even have asked the Claimant if he was hurt, but the Claimant did not take those
opportunities to mention a problem with the man lift. (CX 7, pp. 21H, 21N-21O; HT, p. 181.)
Instead the Claimant finished his workweek before seeking medical treatment and filing a report
of injury. (EX 42, p. 70; CX 6, p. 11; EX 68, p. 180.) Finally, it appears odd, to say the least, that
the Claimant withdrew his state injury claim in early August, after having filed for benefits two
weeks earlier. (See EX 40, p. 66; CX 4, p. 6.)
A lot of energy was also put towards trying to prove that the man lift was not capable of
moving in the way the Claimant claimed and, thus, could not have injured him. (See
Respondents’ Closing Brief, pp. 22-23.) Beyond closely cross-examining the Claimant, the
Respondents produced four witnesses at the hearing who testified, in some cases primarily, about
how the man lift worked: John Knutson; Scott Lee Roberts, Roger Ketchum; and Gene Cole.
(HT, pp. 204, 215, 276, 394.) The Respondents shot and submitted a video of the man lift in
operation as well. (EX 69.) Mr. Knutson testified that the basket of the man lift was
“purposefully set up to move very slowly,” without “rapid movements,” and that he had not had
success trying to start the machine from the basket unless it had already been running that day.
(HT, pp. 395-96.) Mr. Roberts also insisted that he had “never been able to get the man lift going
without two people,” since starting it always required squirting starting aid in a compartment at
the back of the machine. (Id. at 279-81.) While Mr. Ketchum testified at the state hearing that the
machine could be jerky, at this hearing he said that was never a problem unless the boom was
extended. (Id. at 226, 229.) Presumably if the Claimant could not have started the man lift on his
own and if the man lift could not have shaken the Claimant, that would be evidence that the
Claimant made up the entire story.
In addition, the Respondents advanced theories that the true source of the Claimant’s
trouble was his documented preexisting back problems. (See Respondents’ Closing Brief, p. 25;
Respondents’ Reply Brief, p. 5.) They made much of the fact that the Claimant did not mention,
and claimed not to remember, seeing Dr. Jany with back problems in 2005. (See Respondents’
Closing Brief, p. 24; HT, pp. 194-95, 200; EX 84, p. 274.) There was a further suggestion that
the MRIs did not show any acute change since 2000, and, therefore, that the Claimant had not
been injured; that the protrusion at L4-5 was not a herniation, but a lump of scar tissue. (See
Respondents’ Closing Brief, pp. 24-25; EX 84, pp. 256-57, 259 (Dr. Arbeene says dye should
have been used in the MRI to distinguish whether the protrusion was scar tissue or a herniation).)
Yet the Respondents also argued, to discredit Dr. Curcin, that there could be no scar tissue at L4-
5 because there had been no previous surgery at that site. (See Respondents’ Closing Brief, pp.
24-25; EX 84, pp. 276-78 (Dr. Arbeene insists no prior surgery at L4-5, thus, “incorrect” that
scarring was found there).)
The Respondents do not seem to have thought these claims through all the way. To avoid
compensability under the Longshore Act, their argument would need to be that the Claimant’s
disability was only the result of the natural progression of his preexisting problems, not just that
those prior problems were a prerequisite for the minor man lift accident to produce such a great
increase in symptoms. It is not clear that the Respondents made such an argument, or that it
would have been plausible had they tried. Natural progressions of disorders seldom result in
sudden and severe onsets of symptoms after several years of apparent stability. Likewise, I
question the legal wisdom of Knutson emphasizing the idea that the Claimant’s back might have
already been aggravated in 2005, when he was involved in a fully documented accident while
working at Knutson. The Respondents cannot use Dr. Jany’s report of back symptoms to
damage the Claimant’s credibility, without helping to establish that employment at Knutson had
already taken its toll on the Claimant’s back, even before 2006. If the Claimant’s work at
Knutson had already aggravated his back once, it is all the more plausible that the injury in 2006,
was a result of the Claimant’s work conditions. In the same way, in the absence of a third
explanation for what the protrusion at L4-5 was, the Respondents’ argument that it could not be
scar tissue, if believed, rebounds to support the Claimant’s claim that it was an acute
herniation.
On the issue of compensability, the Respondents appear to have thrown every
potential argument at the wall to see what stuck, rather than presenting a coherent rebuttal that
might add up to something substantial.
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