Last week, the Fifth Circuit issued an important Longshore Act opinion. The court addressed “situs” and “status,” two very important factors in all Longshore or LHWCA claims. The opinion is MMR Constructors, Inc. v. Director, OWCP. Factual and Procedural Background: Henry Flores worked for MMR Constructors as a technician for electrical systems. He injury occurred while assisting with “electrical wiring for the construction of Chevron’s tension-leg platform named Big Foot.” At the time of Mr. Flores’ accident, the platform which would ultimately become the Big Foot was floating on pontoons in Corpus Christi Bay. Steel cables and utility lines connected the platform to land. Initially, the Office of Administrative Law Judges denied benefits. The Benefits Review Board overturned that order. MMR Constructors ultimately appealed to the Fifth Circuit, which affirmed. Injury on Navigable Waters – Situs: First, the Fifth Circuit addressed the “situs” test. The “extent to which a craft orRead more
Plaintiff-Seaman Can’t Recover Emotional Damages For Witnessing Injury To Someone Else
Plaintiff worked as a vessel repair supervisor at his employer’s shipyard facility. His primary responsibility was the maintenance and repair of Employer’s life boats. He spent roughly 70% of his time aboard those vessels. The other 30% of the time, Plaintiff worked in the shipyard’s fabrication shop or operating a land-based crane. It was during his land-based maintenance duties that Plaintiff was injured by a falling crane that crashed into a nearby building. Plaintiff sustained a broken left foot, a severely broken right foot, and an abdominal hernia. To make matters worse, Plaintiff’s cousin’s husband (another employee at the shipyard) was crushed by the crane and killed. After a three-day trial, a jury concluded that Claimant was a Jones Act seaman, that Employer was negligent, and that Claimant was entitled to $2,400,000 in damages, which included $1,000,000 for past and future mental pain and suffering. Employer appealed, challenging inter aliaRead more
Fifth Circuit: Longshore Modification Statute Has a Broad Scope
Claimant injured his right knee while working for Employer on an oil production platform. Over the next month, Claimant’s left knee began hurting, too. Claimant performed light duty work for Employer until he was terminated. Not long thereafter, Claimant filed a Longshore and Harbor Workers’ Compensation Act (“LHWCA”) claim. Initially, the administrative law judge (“ALJ”) denied the claim, but the Benefits Review Board (“BRB”) reversed. On remand, the ALJ awarded closed periods of temporary partial and temporary total disability benefits. Prior to the passage of one year, Claimant filed a Section 22 modification application. The ALJ modified the previous judgment to provide for permanent partial disability benefits equal to a 25% impairment of each knee. The BRB affirmed and Employer appealed to the Fifth Circuit, which also affirmed. The Fifth Circuit addressed the two avenues by which a party to a LHWCA claim may move for a Section 22 modification: (1)Read more
Fifth Circuit: ALJs Can Average Audiograms to Determine the Extent of Disability
When Claimant worked as a longshoreman for eighteen years, he operated heavy equipment and was exposed to loud machinery noises. An otolaryngologist appointed by the Department of Labor (“DOL”) tested Claimant’s hearing twice. The first test demonstrated a 56% impairment while the second test demonstrated a 39.6% impairment. The DOL doctor testified that surgical exploration was necessary to determine if surgery would correct Claimant’s hearing. The best treatment was the use of hearing aids. Ultimately, the administrative law judge (“ALJ”) presiding over the case accepted the DOL doctor’s opinions and averaged out the impairment ratings to determine that Claimant suffered a 47.8% binaural loss. Employer appealed the ALJ’s decision, arguing that Claimant had not yet reached maximum medical improvement because the DOL doctor found a conductive component to Claimant’s hearing loss. Because there is a conductive loss, there is a possibility that surgery could correct some of the hearing loss. Based onRead more
Fifth Circuit: No Right to Restitution for Maintenance and Cure Payments
When Plaintiff was hired, he completed a pre-employment medical questionnaire. Plaintiff failed to disclose his serious preexisting back problems, affirmatively answering “no” to several inquiries about those problems. After working for Employer for a few months, Plaintiff allegedly injured his back. Employer paid maintenance and cure for five years. After Plaintiff filed suit for additional maintenance and cure, Employer learned through discovery about Plaintiff’s extensive back problems. Employer won a partial summary judgment on a McCorpen defense, which extinguished liability for maintenance and cure because Plaintiff’s failure to disclose the prior back problems. Then, Employer filed a counterclaim against Plaintiff to recover the maintenance and cure payments already made. The district court issued an opinion awarding Employer restitution for the sums previously paid. The Fifth Circuit, in a 2-1 opinion, determined that the district court erred by awarding restitution, no matter the egregious facts concerning Plaintiff’s maintenance and cure claim. In short, restitution is not availableRead more
The Fifth Circuit Explains the Application of Maritime Law to Jack-Up Rigs and Removal of OCSLA Claims
After watching his friend and co-worker die as a result of an accident on a jack-up rig attached to the Outer Continental Shelf (“OCS”), Plaintiff filed suit in a Texas state court. Plaintiff conceded that he did not sustain a physical injury, but he alleged to have suffered severe emotional distress from witnessing his friend’s death. Further, the emotional distress caused physical problems. In response to Plaintiff’s state court lawsuit, Defendants removed the action to the United States District Court for the Southern District of Texas under the federal question jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”). The federal district court then determined that Plaintiff could not recover under either Texas law or maritime law and granted Defendants’ motion for summary judgment. Plaintiff appealed the district court’s decision and the Fifth Circuit affirmed. The “difficult question” the court had to answer was “whether federal, state, or maritime law provides theRead more
Common Law Tort Claims Preempted by the DBA’s and LHWCA’s Exclusivity Provisions
Claimant was injured in a roadside bomb attack. The employer and carrier paid medical and indemnity benefits pursuant to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) as extended by the Defense Base Act (“DBA”). In addition, Claimant filed a federal civil lawsuit against the employer and carrier asserting common law claims for breach of contract, breach of fiduciary duty, fraud, and conspiracy to defraud. In his complaint: Nadheer alleged that, before his transfer to Erbil, he had requested transfer to a hospital in Jordan and that his insurance provider had denied this request. He claimed that this violated a provision in the LHWCA that allows patients to select their own physicians and that he was never informed of this and various other rights of his under the LHWCA. He further asserted that, as a result of deficient medical treatment he received in Erbil, he had suffered horrific pain andRead more
Longshoreman Who Fell Through Ladder Opening Was 50% At Fault
Claimant, a crane mechanic, filed a Section 905(b) suit after being injured while working on an offshore drilling rig. His injury occurred when he fell through an open ladder cover. The injury prevented his return to work as a crane mechanic, but his employer paid him crane mechanic wages while he worked in a clerical capacity. After a magistrate trial, the owner of the drilling rig was found to have failed to exercise ordinary care and committed negligence per se by violating 33 C.F.R. § 142.87. Pursuant to that regulation, “[o]penings in decks accessible to personnel must be covered, guarded, or otherwise made inaccessible when not in use. The manner of blockage shall prevent a person’s foot or body from inadvertently passing through the opening.” The district court determined that Claimant was 50% at fault for his injuries, and that his employer and its carrier were entitled to reimbursement for benefits payments advancedRead more
A McCorpen Defense Has Only Three Elements
In an unpublished decision, the Fifth Circuit affirmed a district court’s denial of maintenance and cure benefits, and punitive damages, against a claimant’s former employer. The facts demonstrated that the claimant underwent a hip replacement surgery prior to his employment, and that he was on prescription pain medicines when he under went a pre-employment physical. The claimant never disclosed this injury to his employer. Maintenance and cure requires a vessel owner to provide compensation and medical care to an injured seaman, “even if the seaman’s injury stems from a pre-existing illness or condition, unless, the seaman knowingly concealed this condition from his employer when he was hired.” If there was concealment, an employer may lodge a McCorpen defense. McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968). Such a defense applies “when an employer subjects a seaman to a medical examination as part of the hiring processRead more
Under LHWCA, State Law Controls Allocation of Fault to Non-Maritime Third Party
In Jowers v. Lincoln Elec. Co., — F.3d —-, 2010 WL 3341651 (5th Cir. 2010), Plaintiff, a supervisor and foreman for Ingalls, a shipbuilding contractor, instituted in the United States District Court for the Southern District of Mississippi a products liability action under Mississippi law. Plaintiff alleged that the welding consumables he used during his career emited fumes containing manganese, which could cause serious neurological diseases. Prior to the lawsuit, two neurologists diagnosed Plaintiff with manganese-induced Parkinsonism. At the trial, the court awarded Jowers $1,200,000 in compensatory damages and $1,700,000 in punitive damages, but the compensatory portion of the award was reduced by 40% to take into account the Plaintiff’s own fault. Although the Fifth Circuit addressed multiple issues on appeal, such as the government contractor defense and evidentiary rules, the court’s statements regarding allocationof fault and the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) are most important for our purposes. The LHWCA provides workersRead more
