Opinion
Civil Action No. 03-3287 Section: "R" (5).
June 6, 2005
ORDER AND REASONS
The plaintiff, Doug Messer, moves the Court for partial summary judgment on his maintenance and cure claim. For the following reasons, the Court DENIES Messer's motion.
I. BACKGROUND
The following facts are undisputed, unless the Court states otherwise. Doug Messer was employed by Transocean Offshore as a Jones Act seaman aboard the rig M/V F100. On July 1, 2003, Messer's supervisor, George Thornton, asked Messer to show him the master valve. The master valve is in an area beneath the engine room, and the crew accesses it by descending through a manhole in the engine room floor and down a ladder. Messer alleges that he slipped backwards when he climbed down the ladder, and he hit his lower back and buttocks on the handrail.
After the alleged accident, Messer finished his hitch aboard the rig, and he returned to his home in Defuniak Springs, Florida. While he was at home, he saw nurse practitioner Bobby Kemp for pain in his lower back and buttocks area. Kemp prescribed pain medication, and Messer returned to the rig on July 17, 2003 for his next two-week hitch. Messer completed his hitch and returned home again. On August 7, 2003, while Messer was at home, he injured his back while mowing his lawn. On August 8, 2003, Messer called Transocean to inform the company that he was unable to return for his hitch because of his back. The same day, Messer went to the emergency room, and the doctor prescribed medication and advised Messer to see a specialist. Messer then saw a chiropractor, who referred him to a clinic.
On August 15, 2003, Messer advised Transocean that he was ready to return to work. Transocean asked him to undergo an examination by Dr. Don Langford in Lafayette, Louisiana so that Dr. Langford could determine whether Messer was fit to return to work. Dr. Langford examined Messer and gave him an MRI. While Messer waited for the results of the MRI, Transocean's consultant, Charlie Johnson, recorded an interview with Messer in which they reviewed his general work history and the lawnmower incident. When the MRI results came back, Dr. Langford determined that Messer's lumbar spine showed abnormalities at levels L3-4 and L4-5. As a result, Dr. Langford concluded that Messer was not fit to return to work.
Messer ultimately went to Dr. Bradley Bartholomew for treatment. Dr. Bartholomew prescribed a course of physical therapy, in which Messer participated from May 3, 2004 to May 20, 2004. The physical therapy did not relieve Messer's symptoms, and he decided to undergo surgery that had been recommended by Dr. Bartholomew. Messer made formal demand on Transocean to pay for the surgery (Pl.'s Ex. E), but Transocean refused. On November 15, 2004, Messer had a 2-level lumbar fusion.
On November 21, 2003, Messer sued Transocean. Messer demands maintenance and cure and various damages. Messer contends that his accident aboard the rig caused his back injuries that ultimately resulted in his lumbar fusion. Messer now moves the Court for partial summary judgment on the issue of maintenance and cure. Transocean opposes the motion because it asserts that a fact issue exists as to whether an accident actually occurred aboard the rig.
II. DISCUSSION
A. Legal Standard
As the Fifth Circuit recently stated in review of a summary judgment motion for maintenance and cure, "summary judgment is proper where the pleadings and summary judgment evidence present no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Prather v. Ocean Ships, Inc., 110 Fed.Appx. 384, 2004 WL 2166292, at *1 (5th Cir. Sept. 27, 2004). See also FED. R. CIV. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party. Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). The moving party bears the burden of establishing that there are no genuine issues of material fact.
B. Analysis
(1) Law
Seamen have a right to maintenance and cure from their employers for injuries they suffer in the course of their duties on a vessel. See O'Donnell v. Great Lakes Dredge Dock Co., 318 U.S. 36, 41-42 (1943); Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995). Before a seaman can recover maintenance and cure, he must prove (1) that he was employed as a seaman, (2) that his injury occurred, was aggravated or manifested itself while in the ship's service, (3) the wages to which he may be entitled, and (4) the expenditures or liability that he incurred for medicines, nursing care, board and lodging. See Foster, III v. Brian's Trans. Serv. et al., 1993 WL 114528, *2 (E.D. La. 1993) (citing MARTIN NORRIS, 2 THE LAW OF SEAMEN § 26.21 at 53 (Supp. 1992)). A seaman need not present any proof of negligence or fault on the part of the employer to establish his entitlement to maintenance and cure. See id. Moreover, a seaman injured in the course of his employment is entitled maintenance and cure benefits until he reaches the point of maximum medical improvement ("MMI"). See Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987).
(2) Analysis
There is no issue of fact as to Messer's seaman's status: the parties do not dispute that Transocean employed Messer as a Jones Act seaman. There is, however, an issue of fact as to whether the alleged accident actually occurred aboard the rig. At the outset, the Court notes that there is substantial evidence in favor of Messer's allegation that he did, in fact, suffer an injury aboard the rig. First, Messer testified that the accident happened aboard the rig in his deposition. ( See Def.'s Ex. C.) Second, contemporaneous medical documentation corroborates Messer's account of the accident. Specifically, on July 14, 2003, Messer saw nurse practitioner Bobby Kemp. (Def.'s Ex. C, Dep. of Messer at 134-35.) Kemp's notes, dated July 14, 2003, reveal that Messer informed Kemp that he had fallen two weeks before while at work and he was experiencing low back pain. (Pl.'s Ex. A.) Kemp confirmed in his deposition that Messer specifically stated that had fallen at work, and not at home. (Def.'s Ex. E, Dep. of Kemp at 9.)
Despite the evidence supporting Messer's account of events, Messer's supervisors provided conflicting testimony as to whether Messer had an accident aboard the rig. Driller Craig Loewer testified that Messer told him and the rest of the crew about the accident. (Pl.'s Supp'l Mem. Supp. Summ. J., Dep. of Loewer, Ex. A at 42-4). On the other hand, supervisor George Thornton denied any knowledge of an accident involving Messer. (Def.'s Ex. A, Dep. of Thornton at 12-13.) Notably, Messer failed to complete an incident report for the alleged accident. (Def.'s Ex. C, Dep. of Messer at 48, 124-25.)
Furthermore, Messer made statements during his recorded interview with the Transocean consultant that indicate that he did not have an accident aboard the rig on July 1, 2003. Specifically, Messer denied having hurt his back while he was working offshore on his hitch. (Def's Ex. B at 10.) Indeed, when asked whether he had ever hurt his back before, Messer answered only, "Years ago." ( Id. at 7.) Messer failed to mention the incident of July 1, 2003 at all during the interview. Messer, who has the burden of proof, submits no sworn statement to the Court to explain his contradictory statements. This does not create mere doubt or ambiguity, as Messer contends, but rather it creates a genuine issue of material fact. Significantly, the Court would be called upon to make credibility determinations in resolving the issue. This is not the Court's function on a motion for summary judgment.
In light of all of the evidence, there is an issue of fact as to whether Messer injured himself aboard the rig. See Alvarez v. J. Ray McDermott Co., Inc., 674 F.2d 1037, 1044 (5th Cir. 1982) (noting that the district court denied the plaintiff summary judgment on maintenance and cure because the fact of the accident was contested). Therefore, Messer cannot establish an essential element of his claim for maintenance and cure at this time. Accordingly, the Court denies Messer's motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, the Court DENIES the plaintiff's motion for summary judgment on the issue of maintenance and cure.