by Matthew H. Ammerman on March 1st, 2017

A court in the U.S. District Court for the Eastern District of Louisiana holds that punitive damages are not available in a general maritime law negligence claim against a 3rd party. Wade v. Clemco Indus. Corp., et al., 2017 U.S. Dist. LEXIS 13580 (E.D. La. February 1, 2017).

Rose Wade, widow of a seaman, sued an equipment manufacturer, a silica company, and Chevron, all 3rd parties, for exposing her husband to asbestos through negligently-designed or marketed products resulting in her husband's death. She claimed the defendants were negligent under general maritime law and sought punitive damages. Judge Eldon Fallon dismissed her punitive-damage claims, holding they were not available under general maritime law.

Wade had no claims for punitive damages against her husband's employer for Jones Act negligence or unseaworthiness, that issue having been settled by the 5th Circuit in McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014)(en banc).

But what about a general maritime law claim against non-employer 3rd parties? That issue has been the subject of conflicting federal district court opinions.

There is no Jones Act negligence claim against a non-employer 3rd party. That means that the widow's general maritime law claims for negligence stood on their own with no accompanying Jones Act negligence claim.

Judge Fallon reasoned that the uniformity principle espoused by the U.S. Supreme Court decades ago in the Miles case was reaffirmed by the 5th Circuit in the en banc McBride decision in 2014 and still applied. Therefore, 5th Circuit's past cases based on the Miles uniformity principle were still good law. In one such opinion from 2004, the 5th Circuit held that a seaman's widow may not recover nonpecuniary damages from a non-employer 3rd party under general maritime law. Consequently, Judge Fallon held Mrs. Wade's claims for non-pecuniary damages, here, punitive damages arising from a maritime negligence claim, must be dismissed.

The reasoning in Wade should also apply to other general maritime law negligence claims, such as vessel negligence asserted through Section 905(b) of the Longshore & Harbor Workers' Compensation Act.

by Matthew H. Ammerman on March 1st, 2017

This is old news. But it is a follow-up to a previous post reporting on the panel opinion in McBride.

In an opinion issued on September 25, 2014, and penned by Judge W. Eugene Davis, the en banc Fifth Circuit holds that punitive damages are not available in a seaman's claim for unseaworthiness. McBride v. Estis Well Serv., L.L.C., 768 F.3d 381 (5th Cir. 2014)(en banc).

An unseaworthiness claim, which arises under general maritime law, is a claim that the vessel owner failed to furnish a vessel and appurtenances reasonably fit for their intended use.

In McBride, the en banc 5th Circuit reasoned that the U.S. Supreme Court's 1990 holding in Miles -- that a seaman's survivor may not recover non-pecuniary loss-of-society damages -- extended to a claim for punitive damages by both an injured and deceased seaman's survivor. Pecuniary losses in this context are money damages to compensate the plaintiff for "'actual loss" instead of damages fulfilling a punitive purpose.

This issue arises because in 2009 the Supreme Court reversed the Fifth Circuit and held that punitive damages were available for an employer's willful and wanton failure to pay maintenance and cure to a seaman. A maintenance-and-cure claim also arises under general maritime law, and, so the reasoning went, punitive damages should be available for an unseaworthiness claim as well.

The Fifth Circuit says no dice. The Supreme Court, when holding that punitive damages were available for egregious denial of maintenance and cure, clearly states the uniformity principle of Miles is sound. The limitation on non-pecuniary damages derived from FELA and incorporated into the Jones Act precludes punitive damages arising from a general maritime law claim of unseaworthiness.



by Matthew H. Ammerman on February 5th, 2016

Administrative Law Judge Larry Price issued a decision and order in Grabert v. Besco Tubular[1] only a month before the Board’s Boudreaux case described in an earlier  post. Judge Price rejected OCSLA coverage of a car wreck.

Grabert was hurt in an automobile wreck while riding in his supervisor’s personal vehicle on the way from the employer’s company office to Cameron, Louisiana, to catch a boat to take the crew to work on a platform on the OCS.

Judge Price rejected the trial judge’s reasoning in the Boudreaux case because it essentially would be adopting the defunct but-for test used by the Third Circuit in Curtis v. Schlumberger Offshore Service, Inc., which was rejected by the Supreme Court in 2012's Valladolid case.

Judge Price also differentiates the status-based reasoning used by Grabert because the Supreme Court in Valladolid held that OCSLA coverage was causation-based by adopting the substantial-nexus standard. Specifically, the judge found that focusing on the type of work performed by the injured worker was the wrong inquiry. Instead, the proper focus was whether the worker’s injuries were “substantially causally linked” to his employer’s on-Shelf extractive operations in Judge Price’s view.

Borrowing language from the Board’s Baker case that held a land-based injury was not covered by OCSLA, Judge Price found that Grabert’s auto wreck was “‘geographically, temporally[,] and functionally distant from  operations conducted for the purpose of extracting natural resources from the [Shelf].”[2] He found that OCSLA did not apply, and Grabert’s sole remedy was under state compensation law.

[1] Grabert v. Besco Tubular and American Interst. Ins. Co., 2015-LHC-00925 (November 17, 2015)(Price, J.).
[2] Id., Slip Op. at *7, citing Baker v. Gulf Island Marine Fabricators, LLC, 49 BRBS 45 (2015).

by Matthew H. Ammerman on February 5th, 2016

The Benefits Review Board took on the inevitable issue of whether OCSLA applied to an offshore worker hurt in a car on his way to work in the Boudreaux case decided December 21, 2015. [1]

James Boudreaux, a field-testing supervisor, was hurt in a car accident on August 3, 2012, traveling from his home in Church Point, Louisiana, to pick-up area at a dock in Freshwater, Louisiana, from which he would have been transported to the Outer Continental Shelf (OCS). Boudreaux worked 89.2% of his time offshore in the year prior to his accident and regularly traveled by his personal car to specific locations at specific times to be transported to offshore sites. He typically carried the equipment in his personal vehicle that he would use offshore, and he received mileage reimbursement and compensation for his travel time from his employer, Owensby & Kritikos, Inc. His mileage payment, however, was a block reimbursement determined by the customer and a pre-determined distance chart prepared by his employer rather than actual mileage.[2]

Travel to and from work is not typically covered activity pursuant to the “coming-and-going” rule. But the Board affirmed the administrative law judges’ finding that Boudreaux was hurt in the course and scope of his employment citing the trip-payment exception to the coming-and-going rule. Boudreaux transported equipment he would use offshore, was paid pre-set mileage and for his travel time to job site on the OCS on the date of his car accident.

With regard to the substantial-nexus issue, the administrative law judge found that Boudreaux’s duties examining offshore facility storage tanks for defects directly furthered operations at the offshore facility. The Board affirmed that finding, re-stating a key sentence from the Supreme Court's Valladolid case that workers onshore may receive OCSLA benefits if they can show a “‘substantial nexus’ between their injuries and employer’s extractive operations on the OCS.” The Board reasoned the substantial-nexus test was satisfied because: (1) the injury occurred in the course of Boudreaux’s employment; (2) he was traveling with work equipment; (3) he was traveling to meet a crew boat to be transported to the OCS; and, (4) his work on the OCS related to extractive operations. In dicta, the Board rejected the employer’s argument that there was no unique, OCS-related risk associated with traveling on land in a personal vehicle because that inquiry would add “unwarranted complexity.”

Citing the trial judge’s “broad discretion” in applying the substantial-nexus test, the Board affirmed the finding that there was a significant causal link between Boudreaux’s injuries from the car accident and his employer’s on OCS-extractive operations. The Board remanded the case to the administrative law judge on a procedural issue because a full compensation order had not been issued awarding benefits.

However, if a car wreck on the way to work in your personal vehicle is covered -- where is the logical end to such coverage? The carrier in the Boudreaux case is contemplating a repeat appeal to the Board following issuance of a complete compensation order, and, thereafter, to the U.S. Court of Appeals for the Fifth Circuit.

[1] Boudreaux v. Owensby & Kritikos, Inc. and Louisiana Workers’ Compensation Corp.,
2015 DOLBRB LEXIS 268, BRB No. 15-0117 (December 21, 2015)(pending publication); Available here: http://www.dol.gov/brb/decisions/lngshore/published/15-0117.htm

[2] Boudreaux v. Owensby & Kritikos, Inc. and Louisiana Workers’ Compensation Corp., 2014-LHC-00489 (December 12, 2014)(Administrative Law Judge Clement Kennington).



by Matthew H. Ammerman on December 17th, 2015

The Outer Continental Shelf Lands Act (OCSLA) extends LHWCA benefits to certain offshore workers. The first appellate opinion dealing directly with the Supreme Court's 2012 Valladolid case, which held OCSLA can apply to off-the-Shelf injuries, came from the Benefits Review Board on July 17, 2015, in Baker v. Gulf Island Marine Fabricators, LLC, 49 BRBS 45 (2015). The early indication from the Board is that OCSLA’s landside reach is limited – not like the octopus-arm reach that some predicted.

James Baker was a marine carpenter at a shoreside yard in Houma, Louisiana, owned by Gulf Island Fabricators. Baker was employed by Gulf Island for 8 months. He was injured on October 22, 2012, while working on topside living quarters for a tension leg platform, Big Foot, destined for the Outer Continental Shelf. Baker sought benefits under the LHWCA directly, or, alternately, under OCSLA.

Baker worked on land with the exception of a few boat rides across the canal to a shoreside meeting place. Therefore, to meet the requirements of statutory LHWCA coverage, he had to meet the standard requirements of LHWCA situs and status. Situs was easily satisfied because he worked in a shipyard adjoining navigable waters. But the LHWCA’s status requirement of § 902(3) requires that the worker be engaged in maritime employment, specifically, longshoring operations, a ship repairman, shipbuilder, or ship-breaker. Baker had to be working on a component of a ship, i.e., a “vessel” as defined by general maritime law, to meet the status requirement.

Consequently, the vessel status of the Big Foot was squarely at issue. The Big Foot would not be a vessel when at work as a floating production platform tethered to the seabed of the Gulf of Mexico under Fifth Circuit law. In a series of decisions, the Fifth Circuit holds that tension leg platforms or other floating production platforms that are secured to the seabed are not vessels. See, e.g., Fields v. Pool Offshore, Inc., 182 F.3d 353, 358 (5th Cir. 1999), cert. denied, 528 U.S. 1155 (2000).

Baker, however, argued that the Big Foot would have two lives. First, the structure would be a vessel as it was transported by navigable waters for construction and transport to be set up as a floating production platform. Second, once the Big Foot was set up and secured to the seabed on the OCS, it would lose its vessel status. That argument was torpedoed by the Fifth Circuit’s 2008 decision in Cain that held that a semi-submersible rig, which would have been a vessel in its finished state, was not a vessel before it was put into navigation. Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 299-302 (5th Cir. 2008). In other words, even if Big Foot would have been considered a vessel while floating out to its destination, it was not a vessel when under construction.

Consequently, Baker’s work on the living-quarters topside intended for the Big Foot was not maritime employment. He was not building a ship within the meaning of 33 U.S.C. § 902(3) and his shoreside injury was not LHWCA-covered. Baker, 49 BRBS at 49.

That does not, however, dispose of the question of LHWCA coverage. Baker alternately sought LHWCA benefits under the OCSLA extension because the Big Foot was unquestionably destined for the Shelf. In two paragraphs, the Board rejected the application of OCSLA to Baker’s injury. The administrative law judge found that the topside on which Baker worked was not unique to OCS operations, though the particular topside at issue was intended for use on the Shelf. The trial judge further found that Baker’s employer would have no role in the installation or operation of the Big Foot on the OCS. Consequently, the Board held that Baker failed to show a significant causal link between “his injury and ‘his employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS. …” Baker, 45 BRBS at 50.

The Board affirmed the trial judge’s rejection of LHWCA and OCSLA coverage. Baker was not entitled to LHWCA benefits directly or through OCSLA.
 


by Matthew H. Ammerman on September 14th, 2015

Those defending LHWCA claims in southwest Louisiana will recognize the doctors in this case where the 5th Circuit affirmed an award of spinal fusion surgery.

In February 2007, Ryan Courville hurt his back aboard an inland barge bound for a drilling rig.

On March 19, 2007, spinal surgeon Patrick Juneau, M.D., reviewed an MRI of Courville’s thoracic spine and recommended physical therapy but did not recommend surgery.

Now-deceased John Cobb, M.D., also reviewed the MRI and recommended physical therapy and pain management by Steven Staires, M.D. By January 2009, Dr. Cobb recommended a 3 or 4-level spinal fusion surgery.

Courville’s employer, Petron Industries, sought a second medical opinion from Wayne Lindemann, M.D., who saw Courville in February 2009. Dr. Lindemann concluded that conservative therapy proved unsuccessful and that it was "more likely than not" that surgery would be required. Petron then sought another medical opinion from Stanley Foster, M.D., who reviewed the same records approximately two months later and concluded that Courville did not need surgery and could to medium-duty work.

Due to conflicting opinions, the OWCP ordered a special medical examination of Courville with Paul Fenn, M.D., on February 24, 2010. Dr. Fenn, the “DOL-IME,” did not recommend surgery and concludes that Courville is MMI.

After Dr. Cobb died, Courville selected John Sledge, M.D., as his treating orthopedic surgeon. In April 2012, Dr. Sledge saw Courville and ordered a second MRI. Dr. Sledge ultimately concludes in February 2013 that fusion surgery was appropriate.

At a formal hearing in July 2013, the administrative law judge acknowledged the conflicting medical opinions but noted that the opinion of a treating physician – here Dr. Sledge -- may be entitled to greater weight than the opinion of a non-treating physician. The ALJ found the medical treatment recommended by his treating physician Dr. Sledge—including the surgery -- were reasonable and necessary.

The 5th Circuit affirmed the award of surgery citing the 7 years that had passed since his injury. In doing so, the appellate court states that “…the ALJ was within his discretion to lend greater weight to the opinions of Courville's treating physicians—who are familiar with his injuries, treatment, and responses—than the opinions of his non-treating physicians.” Petron Indus. v. Dir., OWCP, 2015 U.S. App. LEXIS 16230, *2-6 (5th Cir. Sept. 9, 2015).

That statement was probably unnecessary because both Courville’s treating surgeon, Dr. Sledge, and a doctor picked by Petron Industries, Dr. Lindemann, concluded that surgery was needed. Nevertheless, the 5th Circuit states affording special weight to treaters is not reversible error. Petron Indus. v. Dir., OWCP [Courville], 2015 U.S. App. LEXIS 16230, *10 (5th Cir. Sept. 9, 2015).


by Matthew H. Ammerman on August 4th, 2015

How do courts classify temporary offshore workers? It depends on their work history.

On July 24, 2015, the U.S. Court of Appeals for the Fifth Circuit held that Joseph Wilcox, a welder employed by welding company Max Welders, failed the seaman status test. While employed by Max Welders, Wilcox worked for 34 different customers on 191 different jobs, both offshore and onshore. He was hurt, however, working on a two-month job assigned to work for Wild Well Control from its derrick barge, the D/B SUPERIOR PERFORMANCE. The barge was used to support well-decommissioning work. On June 5, 2012, gas exploded while Wilcox was welding inside on the well platform. Wild Well conceded Wilcox was its borrowed employee at the time.

To be a seaman, a worker’s duties must (1) contribute to the function of the vessel or to the accomplishment of its mission, and (2) a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). Wilcox failed the second prong because he lacked a substantial connection to the derrick barge.

The interesting element of the case is that Wilcox argued that his work offshore for Wild Well should be the focus of the status inquiry, rather than his entire employment with Max Welders. This is similar – though not the same – as the re-assignment exception to the 30% rule. That exception provides that if a worker has a permanent change in essential work duties, the focus of his status should be in the new rather than old job. Wilcox, however, was a project-to-project welder whose permanent job duties did not change.

The Fifth Circuit panel rejected Wilcox’s argument and affirmed the trial court’s summary judgment that Wilcox did not satisfy the substantial-connection requirement. The status inquiry could not be limited to two months he expected to work on the Wild Well project. Wilcox v. Wild Well Control, Inc., 2015 U.S. App. LEXIS 12878 (5th Cir. July 24, 2015).



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