Employer Not Liable for Medical Malpractice Because of “Call 911 First” Policy

Plaintiff, a Jones Act seaman, instituted a maritime action against his employer to recover for injuries sustained when a skiff he was piloting allided with a bridge.  Additionally, Plaintiff argued that he should recover for the allegedly negligent medical treatment he received immediately after the crash.  The United States Court of Appeals for the Fourth Circuit ultimately agreed with the district court’s decision to dismiss Plaintiff’s Jones Act negligence and unseaworthiness claims.

Further, the Fourth Circuit agreed that Plaintiff’s employer was not liable for the allegedly negligent medical treatment Plaintiff received after his accident.  To be certain, a shipowner can become vicariously liable for a seaman’s injuries when the shipowner selects a doctor who acts negligently. A shipowner’s vicarious liability is based upon the level of control the owner had when selecting the physician.  Where a ship carries an on-board physician employed by the ship, vicarious liability attaches to the shipowner for the physician’s negligence.  Vicarious liability can also attach when the shipowner engages the services of on-shore physicians.  Liability does not attach, however, when the seaman selects his own physician.  Further, when a shipowner merely refers the seaman to a negligent physician, vicarious liability may not attach because of the lack of an agency-based relationship.  Here, Claimant’s physicians were emergency physicians who responded to a 911 call.

Plaintiff made an interesting argument trying to link the 911 call to vicarious liability.  He argued that the employer “constructively selected [the allegedly negligent physicians] by instituting a written emergency response policy that instructs the employees to ‘call 911 first.’”  The Fourth Circuit stated that, while “it is a close question, we conclude that the existence of the ‘call 911 first’ policy alone is insufficient as a matter of law to determine that [the employer] selected or otherwise engaged [the allegedly negligent physicians]….”  Instead, the ‘call 911 first’ policy was “the equivalent of providing each employee with a list of every medical provider in the region,” as opposed to identifying a physician employed, selected or engaged by the employer.

Dise v. Express Marine, Inc., No. 10-1721, 2011 WL 5588913 (4th Cir. Nov. 17, 2011) (unpublished).

What Should an ALJ Do When a Controversion is Withdrawn?

Following an investigation, and after the claim was referred to the Office of Administrative Law Judges (“OALJ”), the employer withdrew its controversion of Claimant’s claim for benefits under the Longshore and Harbor Workers’ Compensation Act.  The employer paid temporary total disability benefits and additional Section 14(e) compensation.  Having resolved everything but the amount of attorney’s fees, for which no hearing was required, the employer requested remand from the OALJ to the Office of Workers’ Compensation Programs.  Claimant opposed this request with a motion for summary judgment arguing that the Administrative Law Judge (“ALJ”) must issue a compensation order documenting the resolution.  The ALJ disagreed, and eventually the Benefits Review Board (“Board”) disagreed too.  The Board cited 20 C.F.R. Sec. 702.351 for the proposition that an ALJ must halt proceedings and remand to the district director when a controversion is withdrawn.  Without the existence of factual or legal disputes remand for disposal by the District Director was appropriate.

Palma v. Pacord, Inc./L-3 Communications, BRB No. 11-0200 (Ben. Rev. Bd. Oct. 24, 2011).

Disclosure: Alan Brackett and Patrick Babin of Mouledoux, Bland, Legrand & Brackett were the attorneys for the employer and carrier.

Procedural Problems Prevent Fifth Circuit from Pondering Merits of Petition for Review

The Fifth Circuit recently addressed a Petition for Review of an Order issued by the Benefits Review Board (“Board”) concerning a claim that fell under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

The claimant in the instant proceedings raised the issue before the Office of Administrative Law Judges of whether various chiropractic adjunct therapies were reimbursable under the LWHCA.   The Administrative Law Judge (“ALJ”) found that although the therapy was reasonable and necessary, it was not reimbursable under the LHWCA.   Claimant appealed the decision to the Board, which reversed the ALJ’s decision and found that the therapy was reimbursable.   The defendant insurance carrier attempted to appeal the Board’s decision but mistakenly filed its Petition for Review with the Board rather than with the Fifth Circuit.   The sixty day window for appeal lapsed, and the Board’s order became final.   The defendant insurance carrier continued to refuse to pay for Claimant’s therapy, and Claimant requested an Order declaring default from the Office of Workers’ Compensation Programs.  The defendant insurance company argued that the Order declaring default was inappropriate because the Board’s Order was did not require the payment of benefits.   In response, Claimant filed a Motion for Clarification with the Board seeking confirmation that their first Order was a final award of compensation.   The Board therefore issued a second Order that its first Order was an award of medical benefits to Claimant. The defendant insurance company filed a timely Petition for Review of the second Order from the Board.

The Fifth Circuit found that although the second Order was a valid and appealable order, it made no new substantive decisions.   The only reviewable issue is whether the Board was correct in declaring that the first Order was a final award of compensation.   The only findings that the Fifth Circuit could have made in this situation was either the first Order from the Board was final and unappealable due to the lapse of the 60 day window for appeals, or that neither the first nor the second Orders from the Board were final or appealable, in which case there is nothing for the Fifth Circuit to review.   As such, the Fifth Circuit found that there was no route by which they could address the merits of the issue for which the defendant insurance company sought review, specifically, whether the therapy was reimbursable under the LHWCA.   The Fifth Circuit therefore dismissed the Petition for Review for lack of jurisdiction.

Caleb Brett, L.L.C. v. Director, OWCP, No. 10-60804, 2011 WL 5555823 (5th Cir. Nov. 15, 2011).

Work Site Three Miles From Blount Island Terminal Was Not a Longshore Situs

Claimant, a mechanic charged with repairing and maintaining containers and chassis brought to his employer’s facility by shipping companies, injured his left wrist while closing a container door.  Although Claimant received Florida workers’ compensation benefits, he asserted a claim for Longshore and Harbor Workers Compensation Act benefits.  The employer controverted on the grounds that Claimant was not a maritime employee and he was not injured on a maritime situs.  The Benefits Review Board (“Board”) determined that Claimant held sufficient status to be a maritime employee, but that he was not injured on a maritime situs.  Claimant satisfied the maritime employee status question because his “regular work involved keeping the containers in good repair for use in maritime commerce….”  The fatal flaw in Claimant’s case, however, was the location of his work place.  It is located over three miles away from the employer’s Blount Island facility.  The Board determined that Claimant’s work place does not “have a geographical nexus with the Blount Island terminal on the St. Johns River: it is not adjacent to or in the vicinity of navigable water; its location was chosen based on general business factors; the Blount Island facility is three miles away; properties closer to Blount Island were rejected as unsuitable for employer’s purposes; and the businesses surrounding the Depot are not maritime.”   As Claimant was unable to satisfy both the status and situs elements, he was not entitled to Longshore benefits.

Ramos v. Container Maintenance of Florida, BRB No. 11-0130 (2011).