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Your rights when injuredThis article was contributed by Christopher W. Dysart of The Dysart Law Firm. The opinions expressed here are those of the author, and not necessarily those of The Wheelhouse Report.Here are questions posed and answered:
Q.What are my rights when injured on the job? A.Individuals making a living working on navigable rivers, lakes and the ocean are provided with three separate remedies for injury or death occurring in the course of employment. General maritime law provides a warranty of "seaworthiness" by the vessel owner and a right to no-fault maintenance and cure from the employer. In addition, a worker may bring a negligence action against his employer under the Jones Act, a federal regulation applying most of the Federal Employers' Liability Act to workers. Q.What is the warranty of seaworthiness? A.The warranty of seaworthiness requires that the vessel be reasonably fit for her intended purpose, regardless of fault on the part of the owner. Even a minor flaw can be considered to make the vessel unseaworthy. If an unseaworthy vessel causes a worker's injury or death, the vessel owner will be held liable. Q.What is maintenance and cure? A.Maintenance and cure is an ancient doctrine allowing an injured or ill worker to collect from his employer a per diem amount for food and lodging and reasonable medical expenses until the worker reaches "maximum medical recovery," as determinded by the treating physician. Maintenance and cure is also provided regardless of fault on the part of the employer. Q.When I'm injured on the job, what do I do about seeing a doctor? A.An injured worker generally has the right to choose his own doctor. However, where the employer refers the worker to a free public health service and the worker refuses and sees his own doctor, unless the worker can prove the public services are inadequate he forfeits his right to reimbursement for the medical care received. In contrast, where the employer refers the worker to a private doctor, and the worker sees his own doctor, the burden shifts to the employer to prove that the worker's doctor provided unnecessary treatment or charged higher fees. Q.How long am I entitled to maintenance and cure? A.An injured worker is entitled to maintenance and cure until he reaches maximum medical recovery. An injured worker reaches maximum medical recovery when medical treatment will no longer improve the worker's condition. Maintenance and cure payments do not continue until the worker is back to 100 percent; they continue until the worker will not get any better. The traditional purpose of maintenance and cure is to sustain the worker while he was injured pending his return to work. If the worker is unable to fully recover from his injury he must pursue other remedies, such as suing under the Jones Act. The determination of maximum medical recovery is a medical, not a legal one. Therefore, termination of maintenance and cure should be based on the advice of the worker's treating physician. Q.What is the Jones Act?A.The Jones Act allows an injured worker, or his estate in the case of death, to bring a negligence action against his employer if the injury or death occurred in the course of employment and the employer is at least partially at fault. The Jones Act allows claims against employers who have even the slightest fault. The worker can collect damages from the employer in proportion to the percentage the employer was at fault. For example, in one case a towboat crewmember was helping his coworkers secure some drfting barges by securing steel cable to the timberheads of two barges and pulling the slack out of the cables. When the worker pulled the cable, it came loose and, because there was no resistance, he fell backwards, injuring his back. Because the worker had pulled the cable with his body weight while directly facing the cable when he had been taught to stand sideways for balance and to pull only with his arms, the jury found that the worker was 35 percent contributorily negligent. The jury found the amount of damages to be $222,500. The court then determined that because River Fleets was found to be 65 percent at fault for the worker's back injury, they were responsible for $144,625 of the damages. After subtracting a little over $20,000 for lost wages already paid by the barge company the court entered a judgement of $123,721.72 for the worker. The same principle applies even if the worker is more at fault than the employer. For example, Richard B., a towboat crewmember who was ordered to move stacked coils of wires weighing about 90 pounds each, was found to be 80 percent at fault for the back injury that occurred as a result of the lifting he performed. Richard B. performed his ordered assignment of moving the wires by pulling a coil from the stack, standing it on the deck, carrying the coil to the edge of the towboat and slinging it onto the deck of the barge immediately facing the towboat. The court found that an alternate method of moving wires was widely known and used in the shipping industry (the method involved shouldering the wires), that Richard B. knew of this method, had on-the-job training and had used this method many times during his years as a deckhand/pilot. In fact he had never before used the method of moving coils that he utilized at the time of his injury. The court did find that the shackles attached to the coils, which caught the coils below causing Richard B.'s back injury, should have been removed by the employer. Therefore the court found Richard B. 80 percent at fault and his employer, Evansville Materials, 20 percent at fault and awarded damages of $104,268.20 to be paid by Evansville Materials, which was 20 percent of the actual $521,341.00 damages. Q.How long can I wait to pursue my legal rights? A.You should pursue your legal rights as soon as possible. For instance, injured workers are given a limit of three years from the time of their injuries to file a claim for compensation under the Jones Act. You should consult a competent attorney to learn exactly how long you have to pursue your particular case.
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