US Bodily Injury News
a finding of negligence per se (a species of strict liability), because his employer violated a USCG regulation (46 CFR §28.2151) which required suitable hand covers, guards, or railing in way of machinery such as gearing, chain or belt drives and rotating shafts. The court agreed and held defendant negligent per se due to the regulatory
violation.As a result, under the Jones Act defendant was not entitled to a finding of comparative fault.
Plaintiff also claimed that Evich owed him unearned wages and, again, the court agreed. The court held plaintiff was entitled to an additional $2,180.24 in “unearned” wages. The court also found that although Lanphere had returned to his work as a heavy machinery operator, it was inconsistent with his physical abilities and contrary to medical recommendations. The court concluded that Lanphere was doing the work out of economic need and doing the work was exacerbating his injury, causing him additional pain and suffering. While the court declined to award punitive damages for failure to pay cure, it nevertheless, awarded $100,000 in punitive damages for defendant’s intentional and willful refusal to pay the additional unearned wages of $2,180.24. In doing so, the court refused to follow the punitive damage 1:1 ratio expressed by the U.S. Supreme Court in Exxon v. Baker. The total judgment against the defendant was $1,120,166.96, plus attorney fees and costs. (WA Sup. Kings, January 6, 2011)
And in even more good news…
A Washington State Court of Appeal held that a ship owner could not condition payments of maintenance and cure on a seaman submitting to a “Cure IME”. Mai v. American Seafoods Company (Wash. St. Ct. of Appeals, Div. I, Case No. 63969- 2-I, March 14, 2011).
Mai injured her knee while moving boxes aboard defendant’s fish processing vessel. She had two knee surgeries but continued to have complaints of pain. Treatment included a gym membership to strengthen her leg and delay knee replacement surgery and pain medications. Defendant questioned whether such treatment was curative and eventually terminated maintenance and cure on the basis the treatment was palliative but would pay for previously recommended knee replacement surgery if plaintiff chose to have it.
The Appellate Court reiterated the standards for maintenance cure concluding that all ambiguities and doubts, including conflicting medical evidence, as to the seaman’s right to receive maintenance and cure are to be resolved in favor of the seaman. The court went even further and held that even if the IME produced a contrary medical opinion, the defendant could not reject the treating doctor’s recommendation. The court awarded plaintiff attorney fees for wrongful failure to provide maintenance and cure.
The plaintiff ’s bar will inevitably argue for far broader interpretation of this decision in resolving questions about a defendant’s maintenance and cure obligation.
Plaintiff ’s doctor recommended the surgery and plaintiff asked defendant to authorize payment for the surgery. Defendant required that plaintiff undergo a cure IME before authorizing the knee replacement surgery claiming it wished to investigate the need for surgery before approving it. Plaintiff produced evidence that defendant wanted the IME by a local doctor to eventually serve as an expert witness in the imminent litigation and because the surgery was expensive.
Months later the plaintiff under went the IME and the doctor agreed with the surgical repair of the knee. Defendant agreed to pay for the surgery but refused to pay maintenance for the period plaintiff did not submit to the IME.
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