Jones Act Causation and Evidentiary Standards

Earlier this month, the Fifth Circuit affirmed a Texas  district court’s finding of Jones Act liability in a benzene-exposure case.  The plaintiff, a former helper, rigger, and leadman for Brown & Root Marine Operators, alleged exposure to benzene  over several years while working aboard Brown & Root’s barges.  The district court entered a judgment for the plaintiff and defendant appealed.  One of the issues on appeal was whether the district court erred in applying the “featherweight” causation standard to the Jones Act claim rather than a “proximate” causation standard.  The court explained that Fifth Circuit precedent employed a standard of “producing” rather than “proximate” cause and the burden of proof is “featherweight”, i.e. a showing of even the slightest cause.

The defendant argued that Justice Souter’s concurrence in Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007), rejected the “producing cause” standard in favor of “proximate cause.”  After oral argument, the defendant filed a letter with the court advising of the Supreme Court’s recent grant of certiorari on this issue in McBride v. CSX Transp., Inc. (7th Cir. 2010).  Noting that Souter’s concurrence may suggest where the law will go in the future, the Fifth Circuit was bound to follow its clear precedent even where the Supreme Court has granted certiorari on an issue. 

Clark v. Kellogg Brown & Root, L.L.C., 2011 WL 386787 (5th Cir. 2011) (unpublished).

Note: The Supreme Court granted certiorari in McBride v. CSX Transp., Inc., on November 29, 2010.  Oral arguments are scheduled for March 28, 2011.  The question presented is “[w]hether the Federal Employers’ Liability act, 45 U.S.C. §§ 51-60, requires proof of proximate causation.”

Fourth Circuit Addresses the Meaning of “Compensation” in Section 22

The United States Court of Appeals for the Fourth Circuit determined that the term “compensation,” as used in the Longshore and Harbor Workers Compensation Act’s (“LHWCA”) modification provision, does not include voluntary payments to a claimant’s medical providers.  See 33 U.S.C. § 922 (1984).

Section 22 of the LHWCA provides in pertinent part: “Upon his own initiative, or upon the application of any party in interest [,] … on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case … [and] issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.”  Id.

In the case before the court, the employer paid compensation for a scheduled knee injury.  The claimant sought permanent total disability benefits, but was denied by an administrative law judge.  On September 12, 2003, the Benefits Review Board upheld the ALJ’s denial, and by that time the employer had paid all compensation owed for the claimant’s scheduled loss.  The employer did, however, continue to pay medical benefits.  Four years later, the claimant requested modification of her PPD award.  Although filed four years after the last compensation payment, the modification request was filed within one year of the last payment made by the employer to the claimant’s medical providers.   The issue was whether the voluntary payment to the medical provider was a payment of “compensation” for modification purposes.

The Fourth Circuit determined that Section 22 contains a statute of limitations, and Congress deliberately included the one-year time limitation within Section 22.  A litigant cannot ignore the reality of that time limitation by citing the “general purpose” of the “extraordinarily broad” modification provision.  Further, if Section 22’s use of “compensation” included the payment of medical benefits, then the one-year limitation contained in the statute could be extended indefinitely because each payment of medical care would start the running of the one year period anew.  Obviously, this would not give Section 22 the effect intended by Congress, as evidenced by legislative history.  Instead, concluded the Fourth Circuit, “interpreting ‘payment of compensation’ in Section 22 [and all other uses of the term “compensation” in Section 22] to exclude an employer’s payment of medical benefits is most harmonious with the purpose of both the statute’s limitations period and the Act as a whole.”

Wheeler v. Newport News Shipbuilding and Dry Dock Co., — F.3d —-, 2011 WL 541805 (4th Cir. 2011).

Note: Although the decision is well reasoned with respect to the statute of limitations contained in Section 22, there are problems with references made to other provisions of the LHWCA containing the word “compensation.”  For example, the Fourth Circuit attaches an inaccurate parenthetical to its citation of 33 U.S.C. § 906(a) stating that “compensation” under that section includes medical benefits.  The parenthetical conflicts with a statement made by the Supreme Court in Marshall v.  Pletz, 317 U.S. 383 (1943).  In Pletz, the Court listed the various sections of the LHWCA where “compensation” dealt solely with “money compensation” and not medical services.  Id. at 390-91.  Although Section 6(a) mentions both “compensation” and Section 7 medical benefits, the Court noted that Section 7 specifically contrasted compensation from medical aid.  Id. at 390.  Under Section 7, the director can suspend “compensation” if a claimant refuses to submit to medical treatment.  Id.  Considering the fact that the present Section 6(a) and Section 7 contain substantially similar provisions, the Fourth Circuit’s parenthetical appears incorrect.  A better statement regarding Pletzis contained in the BRB’s earlier decision in Wheeler.

SCOTUS Grants Certiorari in OCSLA Case

Today, the Supreme Court of the United States granted certiorari in Pacific Operators Offshore v. Valladolid, which is an Outer Continental Shelf Lands Act (“OCSLA”) decision from the Ninth Circuit.  The Valladolid decision has garnered criticism (including from this blog) for its expansion of the OCSLA’s jurisdiction, as well as its creation of a third test for determining OSCLA jurisdiction.  It will be interesting to see how the Supreme Court resolves this three-way Circuit split, and whether it reverses the Ninth Circuit.

Maintenance and Cure: Seaman Who Refuses Light Duty Assignment Forfeits Right to Maintenance

District Judge Carl Barbier of the U.S. District Court for the Eastern District of  Louisiana issued a notable opinion last July in the context of a seaman’s right to recover maintenance and cure benefits following a work related injury.  In Atlantic Sounding Co., Inc. v. Parker, 2010 WL 2836130 (E.D.La. 2010), deckhand Parker sustained injuries to his left index and middle fingers when his hand became caught between a soft line and a bitt.  Sometime after the injury, Parker’s treating physician deemed him medically fit for light duty.  The employer, Atlantic, offered Parker the opportunity to continue his employment at his regular rate of pay under light duty conditions.  Parker rejected the offer of light duty. 

Atlantic filed a federal court complaint seeking declaratory judgment that it owed no maintenance to Parker because he failed to mitigate his damages.  Parker responded to Atlantic’s complaint with a counterclaim against Atlantic seeking damages under the Jones Act and general maritime law in addition to maintenance and cure.  The parties filed cross motions for summary judgment on the maintenance and cure issue.  Notably, Judge Barbier agreed with the employer’s position:

“Atlantic Sounding made an attempt to ensure that Mr. Parker could afford food and lodging by offering him the same pay and accommodating his medical restrictions [by offering light duty employment]. Consistent with…Fifth Circuit jurisprudence, a seaman who fails to mitigate damages forfeits his maintenance payments.”

The court’s ruling applied only to Parker’s claim for maintenance benefits and not to Parker’s entitlement to cure (medical treatment). Judge Barbier expressly stated: “Nonetheless, forfeited maintenance payments do not automatically preclude eligibility for cure because maintenance and cure benefits are two distinct components.”

Atlantic Sounding Co., Inc. v. Parker, 2010 WL 2836130 (E.D.La. 2010).