On July 1, 2011, the Supreme Court of Louisiana held that Louisiana waived its sovereign immunity from suit for injury to persons, and that the Louisiana legislature has not limited that waiver concerning suits by state employees under the Jones Act. In Fulmer, the state employee was assigned to the crew of a state-owned vessel in navigation. While patrolling Plaquemines Parish, and traveling at a high rate of speed, the employee was thrown into the air. He allegedly herniated a number of discs and suffered additional spinal injuries when he landed on the deck of the watercraft. After the employee sued the State, the State argued that it could not be sued because of sovereign immunity. Further, all of the employee’s claims would fall under the Louisiana Workers’ Compensation Act (“LWCA”), and not tort law. For the sovereign immunity argument, the State cited to the Supreme Court of the United States’ decisionRead more
Workers’ Compensation, Social Security Disability Benefits, and Taxation
Generally speaking, workers’ compensation benefits are not taxable. 26 U.S.C. § 104(a)(1). This includes compensation benefits paid under the Longshore and Harbor Worker’s Compensation Act or Defense Base Act. See, e.g., Willis v. Comm’r, T.C. Memo 1997-290. In contrast, social security disability benefits “may be included in the taxpayer’s gross income pursuant to a statutory formula that takes into account a number of factors, including the amount of Social Security benefits received, the taxpayer’s other income, and the taxpayers filing status.” Sherar v. Comm’r, T.C. Summary Opinion 2011-44; 26 U.S.C. § 86. There is, however, a way for the United States government to tax workers compensation benefits. When the claimant is receiving both workers compensation benefits and social security disability benefits, the social security benefits are reduced because of the receipt of workers compensation benefits. This is known as an offset. For tax purposes, this offset amount is treated as thoughRead more
Maintenance and Cure Is Not Contingent on IME Attendance
Although it may be limited to the facts of the case, a Washington state court determined that an employer could not condition a seaman’s receipt of maintenance and cure upon her attendance at an independent medical examination (“IME”). In Mai v. American Seafoods Company, LLC, the seaman was injured when a 40-pound box struck her knee. After multiple arthroscopic surgeries, the seaman’s treatment consisted mainly of going to a gym and taking pain medications. The employer “abruptly ended” maintenance and cure payments. One month later, the seaman’s treating physician determined that she was a candidate for a total knee replacement (“TKR”). Five days before the scheduled surgery, the employer faxed notice that it would not pay for the surgery absent an IME. Further, maintenance and cure would not be paid because of the seaman’s refusal to participate in the IME. Maintenance (a daily subsistence allowance) and cure (medical treatment) isRead more
LA Circuit Split: Third Circuit Says State Employee Barred From Jones Act
The plaintiff, a Senior Wildlife Enforcement Agent employed by the State of Louisiana, alleged that he was injured in a vessel due to a number of deficiencies in the boat and its operation. He sought remedies under the Jones Act. The State responded to the plaintiff’s petition with a number of exceptions, and it sought a declaration that the plaintiff’s injuries fell within the exclusive province of Louisiana’s Workers’ Compensation Act. The Court of Appeal of Louisiana, Third Circuit, agreed. It concluded that the plaintiff was not entitled to pursue his claim under the Jones Act. Louisiana’s workers’ compensation laws prevent state employees from making federal claims for injuries sustained at work. Not only does this include Jones Act claims, it also includes “any other statutorily created remedy.” The Third Circuit’s opinion creates a state circuit split because it arrived at a contrary conclusion than a recent Fourth Circuit opinion. Read more
Louisiana State Employee May Sue Under Jones Act and General Maritime Law
In a recent case issued by the Court of Appeals of Louisiana, Fourth Circuit, a plaintiff employed by the State of Louisiana, Department of Wildlife and Fisheries, sustained cervical spine injuries while he was a member of the crew of a state owned vessel. At the time of his injury, he was patrolling waters near the Head of Passes in Plaquemines Parish. The plaintiff filed a petition for damages seeking relief under the Jones Act and general maritime law. In response, the State filed a peremptory exception, asserting that the plaintiff’s sole exclusive remedy lied in Louisiana workers’ compensation law. The Fourth Circuit disagreed. The plaintiff relied on two earlier decisions to support his proposition that he could seek relief outside of the scope of the of the Louisiana Workers’ Compensation Act (“LWCA”). In Higgins v. State of Louisiana, 627 So.2d 217 (La. App. 4 Cir. 1993), the court determinedRead more