jones act claims personal injury a primer. workers’ compensation state workers compensation...

JONES ACT CLAIMSPersonal Injury

A Primer

WORKERS’ COMPENSATION

• State Workers Compensation

• Federal Workers Compensation

• Longshore Act Compensation

• Jones Act

Workers Compensation

• No Fault

• Usually 2/3 wages

• Course and Scope of Employment

• Permanent Partial Disability Awards

• No Pain and Suffering

• No Lawsuit for Benefits

Jones Act Status

• Substantial Connection to a Vessel of Sufficient Nature and Duration

• Vessel in Navigation

• Performs a Function that Helps to Accomplish the Mission of the Vessel

BLUE WATER SHIPS

• Sailors are Jones Act Seamen

Blue Water Seaman

• Lives on Vessel and Therefore has Sufficient Connection

• Ship is in Navigation and Transports Cargo

• Performs a Function that Assists the Vessel’s Mission

On the Job Injury

Jones Act vs. Workers Comp

• Must sue to get benefits• Must prove negligence or unseaworthiness• Full Wage Loss, Past and Future, Recoverable• Pain and Suffering Recoverable• Maintenance and Cure Recoverable• Right to Jury Trial

Seaman Causes of Action

• Negligence (Jones Act)

• Unseaworthiness

• Maintenance and Cure

• Attorney’s Fees

• Damages for Failure to Pay Maintenance and Cure

Maintenance and Cure

• Injury or Illness that Manifests Itself in the Service of the Ship

• No requirement that injury or illness arises in the course and scope of employment

• Food, Lodging and Medical Care

• Not a Substitute for Wages

• Subsistence Amount

• Often Governed by Collective Bargaining Agreement

Defenses to Maintenance

• Willful Misconduct (Usually Intoxication)

• Fraudulent Concealment

• Failure to Mitigate

• Comparative Negligence Not a Defense

Unearned Wages

• Wages to the End of the Voyage

• Usually the Seaman signs Foreign Articles

• Foreign Articles not mandatory for Unearned Wages

Causation

• Jones Act -- Any Negligence no Matter How Slight the Connection to the Injury will be Grounds for Liability

• Unseaworthiness – Unseaworthy Condition Must Be a Substantial Factor in the Injury for Liability

Defenses

• Comparative Negligence

• No Assumption of Risk

• Primary Duty Rule

Damages Under Jones Act

• Past and Future Lost Wages

• Past and Future Pain and Suffering

• No Loss of Consortium or Society

• No Punitive Damages

When you receive an Injury Notification

• Medical Treatment

• Accident Report (See ISM Guidelines)

• Statements may be admissible

• Good Faith Investigation

• Any doubt favors Seaman

Seaman’s Release

• Burden of Proof of Validity on Employer

• Red Letter Release

• Take deposition to establish known waiver of rights

• Adequacy of Compensation is Test

Wage Agreements

• Pay Wages and Arbitrate any claim

• Only after Injury

• Avoid Jury Trial

Jones Act Claim Status Check List

• Determine Nature and Function of Vessel

• Determine Percentage of Time Worker Spends on Vessel

• Establish Type of Job Worker Doing

• Check Compensation Status

• Put Compensation Carrier on Notice

• Mark File for Possible Lien

Harbor Worker

• No Connection to the Vessel of Significant Nature or Duration

• A Vessel May or May Not be in Navigation

• Performs Tasks Which Benefit the Vessel but Do Not Assist in Performing its Function

Negligence Under LHWCA

• Limited Duties Under the De Los Santos Decision:

1. “Turn Over” Duty

2. Active Negligence

3. Limited Duty to Intervene

Employer As Vessel Owner

• Must Pay Compensation as Employer

• May be Liable for General Damages as Vessel Owner

• Only Liable for Negligence of Vessel Agents in Connection with Turn Over Duty, Active Control of Vessel or Duty to Intervene

Damages Under LHWCA

• Past and Future Lost Wages

• Past and Future Pain and Suffering

• Loss of Consortium and Society

• Punitive Damages

Passengers

• Broadly Defined as Anyone Aboard the Ship for Purposes Not Inimical to the Ship’s Business

• Often Called a Kermarec Claimant

• No Special Duty of Care: Reasonable Care Under the Circumstances

• Circumstances Can Require a Heightened Duty of Care

Forum Clauses

• Enforceable if Forum Reasonably Related to the Transaction

• Must be Prominently Displayed on the Passenger Ticket

• Foreign Forum Not Necessarily Against Public Policy

II. What?

• Witnesses

• Documents

• Government Reports

Witnesses

• Statements from Potentially Adverse Witnesses

• Memoranda of Interview from Managerial Employees

Spoliation

• Failure to Preserve Evidence

• Notice that an Item May be Relevant to Outcome of Litigation

• Possession, Custody or Control of that Item

• Use of Due Care to Preserve the Item

• Adverse Inference from its Non-Production

Documents

• Logbooks

• Work Books

• Operations/Employee Manuals

• Other Voyage/ Cargo/ Passenger Records

• Diaries

• Electronic Messages

• Equipment Manuals

• Maintenance and Repair Records

Contracts

• Indemnity and Hold Harmless Given to Assured

• Indemnity and Hold Harmless Given by Assured

• Policies on Which Assured is Named as an Additional Assured

Indemnity

• Tender Defense to Indemnitor

• Determine Policy Coverage for Indemnity Given By Assured

• Reserve Rights, If Necessary

• Indemnity From LHWCA Employer to Vessel Void

Government Reports

• Required After Casualty by OSHA and Coast Guard and Possibly State Agencies

• Prepared by Assured Hopefully with Professional Assistance

• Time Limit for Filing

• Potential Government Investigation

Government Investigation

• Use of Counsel During Witness Interviews

• Stress Assured’s Cooperation with Government Agents

• Avoid Obstruction of Justice or Impeding Investigation

• Learn from Martha Stewart

AUTHORIZATION FOR USE AND DISCLOSUREOF PROTECTED HEALTH INFORMATION

TO: Doctor/Hospital

Re: Claimant’s Name, Date of Birth and Social Security Number

1. I authorize the use or disclosure of the above-named individual’s health information as described below:

2. The following individual or organization is authorized to make the disclosure:

Doctor/Hospital

including any member of Provider’s workforce or any business associate of provider is authorized to use or disclose the protected information.

3. The type and amount of information to be used or disclosed is as follows: The protected health information that Provider will use or disclose includes my complete medical chart, including, but not limited to, my name, address, telephone number, social security number, insurers, payors, prior medical history, current medical status, diagnoses, x-rays, Cat Scans, MRIs, operative procedures, course of treatment, emergency room records, and all documentation and test results created thereby.

4. Use or disclosure authorized hereunder is for the purpose of litigation, personal injury claims.

5. I understand that the information in my health record may include information relating to sexually transmitted disease, acquired immunodeficiency syndrome (AIDS), or human immunodeficiency virus (HIV). It may also include information about behavioral or mental health services, and treatment for alcohol and drug abuse.

AUTHORIZATION FOR USE AND DISCLOSUREOF PROTECTED HEALTH INFORMATION

CONTINUED

6. This information may be disclosed to and used by the following individual or organization:

John J. WalshFREEHILL, HOGAN & MAHAR, LLP80 Pine Street, 24th FloorNew York, NY 10005-1759

7. Provider may not condition treatment, payment, enrollment or eligibility for benefits on whether I sign this authorization, except where the authorization is for research-related treatment, or solely for the creation of protected health information for disclosure to a third party.

8. I understand I have the right to revoke this authorization at any time. I understand if I revoke this authorization I must do so in writing and present my written revocation to the health information management department. I understand the revocation will not apply to my insurance company when the law provides my insurer with the right to contest a claim under my policy.

9. Unless otherwise revoked, this authorization will expire on the following date, event or condition: June 25, 2005.

10. I understand that authorizing the disclosure of this health information is voluntary. I can refuse to sign this authorization. I understand I may inspect or copy the information to be used or disclosed, as provided in CFR 164.524. I understand any disclosure of information carries with it the potential for an unauthorized redisclosure and the information may not be protected by federal confidentiality rules.