Archives for October 2012

The K.S. [Simons] Decision is Limited to Dangerous Locales Like Iraq and Afghanistan

In an unpublished decision, Fields v. Fluor Corporation, the Benefits Review Board addressed the average weekly wage determination for a Defense Base Act employee in Tashkent, Uzbekistan.  Although the decision does not focus entirely on average weekly wage calculations, the portion that does is interesting.  Claimant argued that the administrative law judge erred “by not relying on claimant’s contract rate with employer, or alternatively, by not averaging the highest earnings claimant received while working overseas between 2000 and September 2004.”  The Board disagreed. 

Section 10(c) of the Longshore and Harbor Workers’ Compensation Act is geared towards arriving “at a sum that reasonably represents the claimant’s annual earning capacity at the time of his injury.”  Here, the ALJ rationally concluded that claimant’s earnings should include both the earnings at the time of injury and the earnings in similar work claimant performed within the preceding 52 weeks.

My favorite part of the decision, however, is the following footnote:

Claimant’s reliance on the Board’s decision in K.S. [Simons] v. Serv. Employee’s Int’l, Inc., 43 BRBS 18, aff’d on recon., 43 BRBS 136 (2009)(en banc), for the proposition that the administrative law judge erred by not calculating his average weekly wage based solely on his contract of employment with employer is misplaced.  Simons involved overseas work in a dangerous environment under a long-term contract.  There is no evidence here that claimant’s work in Uzbekistan involved the type of dangerous conditions encountered in Iraq or Afghanistan.

So, K.S. [Simons] has limited application.  It only applies to overseas work that involves “the type of dangerous conditions encountered in Iraq or Afghanistan.”  And K.S. [Simons] requires an evidentiary showing of the dangerousness that the employee encountered.  

Fifth Circuit Affirms Exclusion of Expert Affidavit in Section 905(b) Claim

Plaintiff, a longshoreman, was injured while unloading steel pipes from a vessel.  A bundle of pipes shifted, rolled towards the longshoreman, and pinned his leg against a wall.  The crush injury resulted in a below-the-knee amputation.  Plaintiff filed a Section 905(b) claim against the vessel, its operator and its charterer. 

Under Section 905(b), a longshoreman may recover damages for injuries “caused by the negligence of a vessel.”  The duties owed to longshoremen include the (1) turnover duty, (2) a duty to exercise reasonable care in the areas of the ship under active control of the vessel, and (3) a duty to intervene.

Plaintiff designated Captain Joe Grace as his liability expert.  Captain Grace’s report opined that Plaintiff’s injury was caused by the improper stowage of the pipes.  Defendants then moved for summary judgment, arguing that Plaintiff failed to prove that they breached a duty owed to him.  Plaintiff responded by filing a new affidavit prepared by Captain Grace.  Upon Defendants’ motion, the district court struck the affidavit except to the extent that it “proved up” Captain Grace’s original report.  Defendants argued that the affidavit contained new opinions not previously disclosed during the discovery process. 

On appeal, Plaintiff argued that Captain Grace’s affidavit had no new opinions–it was merely support for the original report.  The Fifth Circuit disagreed:

For example, Captain Grace stated for the first time in his affidavit that stowing pipe hard aft to the bulkhead is an “abnormal and unsafe” practice of stowing pipe.  He further stated that stowing pipe in this manner “makes it much more likely, almost certain, the pipe will shift diagonally during the unloading process.”  Additionally, Captain Grace claimed for the first time that his opinions were “the product of reliable principles and standards generally accepted and utilized by experts in the field of proper stowage[,] inspection of stowage[,] and stevedoring principles.”  As the district court noted, though, he provided no details regarding these principles and standards.

In addition to finding that the district court properly excluded the affidavit, the Fifth Circuit determined that summary judgment was appropriate for Plaintiff’s Section 905(b) claim.  Plaintiff could not demonstrate a breach of the turnover duty because the alleged defects in the cargo were open and obvious to him.  Plaintiff could not demonstrate that the ship maintained active control because no one from the vessel directed the manner in which Plaintiff and his crew unloaded the pipes.  Finally, Plaintiff could not demonstrate a breach of the duty to intervene because there was nothing about the unloading process that was so hazardous that the vessel’s intervention was required.  

Sobrino-Barrera v. Anderson Sipping Co., Ltd., No. 11-20826, slip op. (5th Cir. 2012).



LexisNexis Workers’ Compensation Community Honors Navigable Waters

We are very pleased to announce that the LexisNexis Workers’ Compensation Community honored Navigable Waters by selecting it as a Top 25 Workers’ Compensation Blog for 2012.  We are grateful for the honor.  For those of you who may not be aware, the LexisNexis Workers’ Compensation Community brings together professionals from all fifty states, as well as federal compensation systems, for in-depth discussion of workers’ compensation topics.  These professionals (from both the private and public sectors) discuss everything from Longshore attorneys fees (like Paul Howell’s excellent article) to Medicare Set Asides.  And then there is the workers’ compensation fraud blotter, which is a weekly bulletin of the unsavory side of comp claims. 

We extend our thanks to LexisNexis and all of our readers.  We hope to make 2013 even better!  Please be sure to check out the other blogs identified in LexisNexis’ list.  I have already added some to my daily blog roll.


When Does a Negligent Act Become Intentional?

When a non-seaman worker is injured on the job in Louisiana, whether he is working a “land- based” job or working as a longshoreman (someone engaged in maritime employment on the navigable waters of the United States, including any adjoining pier, wharf, dry dock, terminal, building, etc.), his exclusive remedy against his employer is compensation benefits.  In other words, the worker is prohibited from suing his employer to recover damages as a consequence of his injury.  This is proscribed by Louisiana Revised Statute 23:1032 and the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 901, et seq.  Not only is the injured worker prohibited from suing his employer, he is also barred from suing one of his co-employees whose negligent act he believes caused or contributed to his injury.  In plain language, even if the worker was injured due to the negligence of his employer (which can be vicariously responsible for the negligent acts of a co-employee), he cannot sue his employer.  Instead, he automatically qualifies for compensation benefits until he reaches maximum medical improvement and the employer is responsible to pay for his medical costs.

There is an exception, however.  If the injured worker can show that his injury was caused by an intentional act on the part of the employer, he is allowed to pursue a tort remedy against that employer.  Many times, to get around the exclusive remedy provisions, attorneys on behalf of the injured worker will allege the injury resulted from negligence so egregious that it rises to the level of intentional.  Thus, the controversy.  When does an action or inaction by an employer that results in injury rise to a level of being so flagrant, wanton or offensive that, by definition, it is deemed to have been intentional?

The Supreme Court of Louisiana took up this issue in its decision of September 21, 2012 in Moreau v. Moreau’s Material Yard, et al., 2012-1096 (La. 9/21/12); 2012 WL 4236303.

In that case, a surviving spouse filed suit against her husband’s employer alleging its failure to adhere to proper safety procedures, which resulted in his death.  The employer moved for summary judgment, alleging plaintiff’s exclusive remedy was in workers’ compensation as she was unable to show an intentional act on its part.  The district court denied summary judgment, and the court of appeal denied supervisory writs.  The employer filed a writ application to the Louisiana Supreme Court.

To recover in tort against a defendant under La. R.S. 23:1032(B), a plaintiff must prove an injury resulted from an “intentional act.”  In Bazley v. Tortorich, 197 So.2d 475 (La. 1981), the Louisiana Supreme Court explained an intentional act requires the actor to either (1) consciously desire the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.  In the instant case, the widow did not allege defendant consciously desired to cause harm to decedent.  Rather, she asserted decedent’s injuries were substantially certain to follow from defendant’s conduct.

The Court noted its prior decision in Reeves v. Structural Preservation Systems, 98-1795 (La. 3/12/99); 731 So.2d 208, 213, where the Court discussed the “substantial certainty” requirement as follows:

Believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.

 .           .           .

Substantially certain to follow’ requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.”  [A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the “substantial certainty” requirement.   Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.

Reeves, 731 So.2d at 213 (internal citations and quotations omitted).

 The Court ruled that the widow alleged that defendant required decedent to work under unsafe conditions and failed to provide necessary safety equipment.  Accepting the widow’s allegations as true, the Court did not find the accident was substantially certain to occur.  As the court explained in Simoneaux v. Excel Group, LLC, 06-1050 at p.3 (La. 9/1/06), 936 So.2d 1246, 1248, an employer’s actions in providing poor working conditions “may have been negligent or even grossly negligent, but they were not intentional.”

The problem with this decision is that there is still a very thin distinction as to when an act, even one that is grossly negligent, crosses the line and becomes an intentional act.  To this writer, it is a subjective determination which can lead to inconsistent results.  For instance, if two different juries were to hear the same case, the same set of facts, one jury could find that the act, while grossly negligent, did not rise to the level of being intentional while the other jury could find that it did.  Does that make one right and the other wrong when reasonable people can reach opposing conclusions?  Chances are that in either situation, if reviewed by an appellate court, the court would have a difficult time reversing the jury’s decision unless the record revealed a total abuse of discretion on the part of the jury.  This subjectivity is not segregated to civil litigation.  In the criminal law, a person may be charged with negligent injury or negligent homicide.  Generally these may be defined as the injuring or killing of a person without deliberation or premeditation resulting from the improper use of reasonable care or skill while in the commission of a lawful act.  Again, judges and juries are called upon to weigh the facts and decide if the accused was so grossly negligent that his acts rose to the level of criminality.

Perhaps the Louisiana Supreme Court should have stated that for negligence to rise to the level of being intentional, the act has to result in consequences that a reasonable person would expect to occur to the exclusion of any other.  In other words, instead of stating that the actor must know that the “result is substantially certain to follow from his conduct,” the Court should have adopted a more narrow definition and, using the “reasonable man” standard, state that the actor must know that his conduct will result in injury.  Not that it may, but that it will.  That, at least, will lessen the confusion.