Fury Bailey - Personal Injury - Wrongful Death Attorneys

BENDING OVER ON THE JOB CAN HURT YOU-A VICTORY FOR A FISHERMAN WITH A BAD BACK RESULTS FROM AN ERGONOMIC ANALYSIS

By William S. Bailey

A scientific analysis of the body mechanics required in working as a longline fisherman recently led to a settlement for a back injury to a 50 year old fisherman. A contributory factor in the settlement was the uncovering of the strategic maneuvering and manipulation of plaintiff by defendant's self-insurer, leading to an unnecessary surgery prior to plaintiff's representation by counsel.

Olav Lie is a 50 year old native of Norway who came to the United States when he was 22. He had many other cousins and family in the Pacific Northwest , many of whom were involved in the fishing industry. Mr. Lie was very well-regarded within the longline fishery due to a strong work ethic and considerable skill as a fisherman. From 1984 until the date of his injury on July 15, 1996, he was employed as a deckhand on the F/V TORDENSKJOLD, which mainly engaged in longline fishing for halibut and black cod in Alaskan waters.

Through years of hard work as a fisherman, Mr. Lie had gradually developed back pain. In August of 1995, he began to have persistent back pain during the course of working aboard the boat. He managed to tough it out for the season and went to his family doctor when he returned to the Seattle area. He was prescribed anti-inflammatory medication that, when
combined with being off work, led to some improvement. However, he never totally returned to normal in the off season as far as his back was concerned.

Once the halibut season began in July, 1996, Mr. Lie returned to the F/V TORDENSKJOLD, which was heading back up to Alaska . He was optimistic that with the medication he was taking for his back, he would be able to do the work. The pain had never been so severe in the past that he couldn't perform most of his duties.

On July 15, 1996, Mr. Lie was working the roller aboard the F/V TORDENSKJOLD. For this task, the crew member must be ready with a gaff to grab the bigger halibut as they break the water. The hook on the line is not sufficient to lift the heavy fish into the boat without manual assistance. These larger fish will often pull off the hook and slip into the water, causing the boat to lose considerable profit.

As Mr. Lie worked the roller, a large halibut broke the water, requiring him to bend over the rail and pull with great force in a bent over position. During this, he felt his feet slip and something snapped in his lower back. There was excruciating pain. A fellow crew member came over to help him pull in the fish. He stayed in his bed until the boat got to Dutch Harbor and then he was flown home. He had a long course of conservative medical treatment and got no better. Dr. Leland Rogge saw plaintiff in consultation and opined that surgery would not improve the situation. Plaintiff was din great financial distress, desperate to try anything that would help him return to fishing. It was then that the director of Marine Safety Reserve, Bob Alverson, talked plaintiff into seeing Dr. John Burns, even calling to make the appointment. This ultimately led to an unsuccessful fusion. Marine Safety's motivation was to try and close out plaintiff's claim on a low cost basis, encouraging plaintiff that the surgery would "fix him right up." Ultimately
defendant's own CR 35 medical expert, Dr. David Chaplin, stated that this surgery never should have been performed.

The defendant vessel owner agreed that Mr. Lie was a well-motivated, capable fisherman. That was why he was asked back on the boat for 12 consecutive years. What the defense focused on was the fact that plaintiff's treating doctor had entries for several years prior to the July 15, 1996, injury referring to various incidents of low back pain without trauma or other identifiable cause. The argument was that pulling the fish on board the vessel did not have anything to do with plaintiff's back problem, but rather it was a result of degenerative changes over time.

While the effort to pull the large fish on board was a significant event in the face of defendant's heavy emphasis on pre-existing condition, plaintiff's counsel decided to do an in-depth analysis of all the duties performed by Mr. Lie over the years on board the F/V TORDENSKJOLD. It was a definite help that he had spent so many years on the same vessel. In that way, if the nature of the duties on board the F/V TORDENSKJOLD were found to be unreasonable from the ergonomic point of view, all of this could be blamed on this vessel owner who had required the plaintiff to perform these same duties for many years.

Plaintiff's counsel elected to get knowledgeable, widely published former University of Washington Professor , Steven Wiker, Ph.D., to serve as an ergonomic expert. Dr. Wiker went on board the vessel with Mr. Lie and then asked him to go through the motions of the various jobs he did on board the vessel. Dr. Wiker then made a video recording of these duties with his digital camera. Once back in his laboratory, he was able to analyze the motion of the plaintiff in performing his regular duties aboard the boat,
putting that into his computer model and comparing it to the NIOSH standards for maximum lifts.

Dr. Wiker ultimately concluded that from the ergonomic point of view, the tasks Mr. Lie were required to perform at the roller aboard the F/V TORDENSKJOLD were hazardous to human health. Dr. Wiker further opined that under a straight biomechanical analysis, the plaintiff was required to perform tasks in the course of a work day as a commercial fisherman that were in excess of NIOSH standards and calculated to cause injury to the back. His report had a number of effective graphics, illustrating the danger in the lifting and bending requirements. This report was a key element in the successful result.

Dr. Wiker testified that the act of bending over the side of the ship to pull up the heavy halibut was all but certain to cause injury over time. Dr. Wiker's deposition was taken for hours by defendant's counsel, who attempted to discredit him on this opinion. This effort was unsuccessful. Dr. Wiker explained that if a worker bends over to pick up a heavy object, the weight of that object must be counteracted by the muscles in the worker's back, which cover a relatively short distance. The length and strength of back muscles are fixed. They constitute one side of the "lever arm" equation. The amount of force put on the erector spinae muscles at L5 - S1 have to balance off the weight on the other end. Since the worker cannot increase the length of the lever arm in their back muscles, they have to make up for this by straining harder. The force required to bend over to the water and pick up a heavy halibut weighing more than 100 pounds constituted an impermissible load. Thus, it was not surprising that Mr. Lie sustained a back injury engaged in this task.

In addition to the ergonomic analysis, plaintiff also retained marine engineer, Thomas W. Robinson. Mr. Robinson noted when he went aboard the vessel for an inspection that the footing was hazardous in the area where Mr. Lie was injured. There were exposed hydraulic lines in the vicinity of the roller which constituted a hazard to secure footing. This contributed to the plaintiff's injury by causing him to slip on the slime covered hydraulic lines when he was pulling the halibut on board. Defendant responded to this with the usual cocoa mat defense -- that these mats were available on the boat and it was up to the crew member to use them when necessary.

Defendant's counsel responded further to the plaintiff's liability arguments by emphasizing that the plaintiff had a bad back over time from no known cause other than the aging process. In this effort, they had a willing ally in the form of their hand-picked surgeon, Dr. John F. Burns. Although Dr. Burns recorded in his medical records prior to his surgery on plaintiff that the injury was work-related and that plaintiff was "reasonably well-motivated" and "wants to return to work," he changed his tune in his deposition. After being fed plaintiff's prior health care records by defendant, suddenly he opined that the incident aboard the boat had nothing to do with the back surgery. Dr. Burns stated that all plaintiff's prior medical history was new to him and in that it showed pre-existing back pain, there was not a causal relationship between the incident on board the vessel and the subsequent back surgery.

Fortunately for the plaintiff, several factors following the Burns deposition moved the case in plaintiff's favor. First, his family doctor was very supportive. Plaintiff's counsel had supplied the family doctor with the computer ergonomic analysis prepared by Dr. Wiker. The family physician found this quite persuasive as the cause of plaintiff's back problem and
adopted it without reservation. Persistent questioning by defendant's counsel failed to get him to change his mind. While the family physician admitted the plaintiff had had consistent reports of back pain over the years and in fact was still under treatment for back pain at the time of the injury, that the act of pulling the fish on board was likely to worsen the situation.

The opinion of Dr. Leland Rogge that Dr. Burns' fusion surgery was ill-advised found an ally in the defendant's own CR 35 examiner. Dr. David Chaplin reported that the surgery was unnecessary and should not have been done, effectively putting Dr. Burns out on a limb all by himself.

Dr. Del Whetstone, the osteopathic physician that had tried a variety of conservative modalities with plaintiff prior to the surgery, was also impressed by Dr. Wiker's ergonomic report. Dr. Whetstone rejected defendant's argument that the plaintiff had a bad back anyway and that this injury did not change the status quo. He adopted Dr. Wiker's findings and conclusions and opined that if Mr. Lie was not required to make unsafe lifts on a regular basis aboard the F/V TORDENSKJOLD, he would still be able to work as a commercial fisherman.

The combination of Dr. Wiker's report and the opinions of the two physicians was critical in that it established causation under the standard set forth in Rogers v. Missouri Pacific Railway Co. , 352 U.S. 500, 506 (1957). As a legal matter, in a maritime case, causation of an injury is established if defendant's negligence plays "any part, even the slightest in producing the injury or death or which damages are sought."

After the deposition of plaintiff's ergonomic expert, defendant began to show greater concern about this case. However, defendant steadfastly argued that plaintiff's back was no worse after the lifting incident than it had ever been. Defendant was also prepared to call familiar worklife expectancy
witness for the defense Steve Hughes, to argue that at age 50, plaintiff's days were numbered in what is a young man's occupation. Defendant planned to introduce documents showing there are only a handful of fishermen in the fleet older than plaintiff was at the time of his injury.

The matter ultimately settled at a mediation conducted by Judge Karen Overstreet, just prior to trial, for a total present value of $325,000. Plaintiff was represented by William S. Bailey of Fury Bailey. Defendant was represented by Charles S. Jordan of the firm of Danielson, Harrigan & Tollefson. Lie v. Gjerde , U.S. District Court, W.D. WA, C97-1859R.

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