Understanding Your
Offshore
Injury
Insider Tips from a Jones Act Attorney
That Could Protect You & Your Family
Timothy Young, The Young Firm
UNDERSTANDING YOUR OFFSHORE INJURY
Copyright © 2009, Second Edition Copyright © 2013 Timothy
Young
All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of
the author.
Printed in the United States of America
ISBN-13: 978-1491209158
ISBN-10: 1491209151
TIMOTHY YOUNG
Disclaimer: This book is meant for informational purposes
only. The legal statutes mentioned in this book were current as of the publication date, however, we cannot guarantee that these statutes have remained the same since the
publication date. The information contained herein is not
intended, and should not be taken, as legal advice. You
are advised to contact a maritime attorney for counsel on
particular issues and concerns. Additionally, your use or
request of our materials does not constitute as an attorneyclient relationship between you and The Young Firm.
UNDERSTANDING YOUR OFFSHORE INJURY
Tab l e o f Co ntents
Part I: The Basics…………..10
Maritime Law………………………….10
The Jones A c t…………………………..12
Why Is the Jones Act Important?…………..13
Def initio n o f a s e ama n……..14
When Does the Jones Act Apply?…………14
Jones A ct S a f e t y r ule s ………..18
What’s Considered “Unsafe”?……………….19
5 Tactics Your Company Will Use…………..24
Commo n Mi sconce ptions …28
Accident Reports…………………………………28
Recorded Statements…………………………..29
Treating Physician………………………………..30
Negligent Medical Treatment………………..32
Part II: Filing a Claim…34
Type s o f Compensatio n………38
Pain & Suffering…………………………………..38
Medical Expenses………………………………..39
Loss of Wages…………………………………….39
Loss of Fringe Benefits…………………………40
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f ilin g a jo n e s a c t cl a im…..42
How Soon Should You File a Claim?………42
Where Should You File Your Claim?……….42
Finding the Right Maritime Attorney……..44
5 Qualities of a Jones Act Lawyer………….46
Filin g a M a ritime cl a im……50
Negligence…………………………………………51
Unseaworthiness…………………………………53
Damages……………………………………………53
Punitive Damages……………………………….54
Maintenance and Cure…………………………54
Part III: FAQs…………………….58
Should I Return to Work?……………………..58
Should I Settle on My Own?………………….60
Won’t I be Blacklisted if I File Suit?………..61
Will My Advances Be Cut Off?………………62
How Much Will My Case be Worth?……….64
How Long Will My Case Take?………………65
Part IV: Medical info…67
c ommo n M e dic a l t e s t s ………67
UNDERSTANDING YOUR OFFSHORE INJURY
Prologue
Louis pulled into his driveway after a long
and uncomfortable two-hour drive from the doctor’s office. The insurance guy had made the appointment and had driven Louis from the dock to
the company doctor.
After a quick “examination” and an X-ray,
Louis had been nonchalantly dropped off at his
car and left feeling worried and confused.
He sat gripping the steering wheel, hands
sweaty from the agony in his back and the anxiety
of the conversation with his wife to come.
He shifted in his seat and a stabbing pain raced
up his spine. He cringed. His leg was numb and he
needed to stand and stretch. Gingerly he got out of
the car and slowly walked to the back door, barely
noticing the kids’ toys littering the lawn.
What would he tell his wife?
He and Lisa had been married for eight years
now, and the times had been great. Offshore work
had paid so well, and he had been promoted three
times since he had started with the company. He
loved his job. But now all that could be gone.
Touching the cold doorknob, he paused, then en-
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tered.
He had hoped to enter quietly and come to his
wife in his own time, but she heard the door and
came to greet him.
The minute Lisa saw him limping she knew
that “IT” had happened: the accident. Another’s
careless mistake that they would now have to pay
for the rest of their lives.
How many nights had she lain awake dreading this very thing, wondering what they would
do, how they would survive?
They had only heard about it from friends,
and had always hoped that it was something that
only happened to other people.
Louis took Lisa’s hand and led her to the kitchen table so they could talk. They had to decide
what to do about their bills next month and his
back that was still killing him—even though that
doctor told him he was fine.
They needed to decide if he should try to return
to work the next hitch or try and recover. They had
so many decisions to make. So many decisions and
they did not know where to start…
UNDERSTANDING YOUR OFFSHORE INJURY
About thi s Book
Understanding your rights is the first step to protecting yourself. You rely upon your employers as well
as your coworkers for your day-to-day safety. Your company should follow the law and give you a safe place
to work, because you work in very dangerous environments. If you have been injured while working offshore
on a platform or vessel, it is critical that you are familiar
with your rights. Handling your injury is about more
than taking care of your body; it is about taking care of
you and your family’s future.
This maritime law guide will help you understand
your basic maritime and Jones Act rights. Please understand that maritime law and the Jones Act law are very
complicated. Our office has handled maritime claims
for more than fifty years and we limit our practice to
helping individuals injured on oil rigs and vessels.
This guide is set up into four parts: The Basics, Filing a Claim, FAQs, and Medical Info. Each of these parts
have subsections expanding on different concepts. At
the end of major subsections are “Main Points” that
help summarize the ideas expressed.
There are also “Insider Insight” boxes scattered
throughout the book that highlight important issues
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that you should pay attention to.
In addition to the “Insider Insights” are the “Insider
Tip” boxes which give you specific actions you can take
to improve your situation now. These are meant to be
simple steps that will either further educate you about
your situation or will give you suggestions on how you
can prevent further issues from popping up down the
road.
Lastly, there are definitions of common terms at the
bottom of pages along with an index at the back of the
book that points to specific pages where those terms
are discussed.
This guide is meant only as an introduction to
maritime and Jones Act law. Some of the statements
herein may not apply to your specific case. If you have
any questions after reading this guide, please be sure to
phone our office so that we can discuss your questions
in detail.
With that said, we congratulate you on taking the
time and effort to educate yourself on your basic day-today rights while working offshore or on a vessel! With
the information in this guide, you will have a more
comprehensive understanding of how you should be
treated while working offshore.
UNDERSTANDING YOUR OFFSHORE INJURY
Bas ics of Maritime Law
General maritime law (also known informally as
“maritime law”) applies to any injury or claim that occurs on “navigable” water. The definition of navigable
water certainly includes the Mississippi River as well
as the Gulf of Mexico. Many times it is not difficult to
determine if a body of water is “navigable” for purposes of maritime law. It is also important to determine
whether any land-based laws apply to your injury.
Although fixed platforms in the Gulf of Mexico are
sitting on “navigable water,” generally, maritime law
does not apply to injuries and accidents which occur on
the fixed platform. Instead, the law of the state where
the platform is located will usually apply to such situations. For example, if a worker is injured while working
on a fixed platform off of the coast of Louisiana, and
¤ General maritime law- a type of law that applies to any injury that
occurs on navigable water.
¤ Navigable water- bodies of water (such as rivers, canals or lakes)
where the water is deep enough, wide enough, and slow enough for a
vessel to travel.
¤ Fixed platform- a platform that is mostly stationary. It is not considered
a vessel and so the Jones Act will not apply to accidents that occur on
fixed platforms.
Part I: The Basics
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his accident occurs on the platform, Louisiana law will
apply to any possible claim that the employee may have
against any third parties. The same is true for individuals who are injured on or near docks within state waters. Very often the law of the state where the dock was
located will apply to such injuries.
Main Points:
- General maritime law applies to any injury or claim
that occurs on “navigable” water. - Navigable water is any body of water (rivers, lakes,
canals, and oceans) that a vessel can travel on. - Injuries on fixed platforms are not covered under
maritime law.
Navigable Waters
Oceans Canals
Rivers Lakes
UNDERSTANDING YOUR OFFSHORE INJURY
Bas ics of The Jones A c t
The Jones Act is a federal statute which provides
extensive protections to an employee who is injured
while working. It is one of few federal laws that truly
protects employees who are involved in workplace accidents. If the Jones Act applies to your situation, you are
actually considered a “ward” of the court. This term
dates back more than a hundred years and essentially
means that the court has a duty to protect you and your
rights. Unfortunately, today this term does not carry as
much weight as it used to many years ago. Nonetheless,
injured seamen under the Jones Act are still technically
considered wards of the court. This gives you an idea
of the significant protections that the Jones Act gives to
injured employees.
If you are injured on land while driving an automobile within your state, in all likelihood the law of your
state will apply to your injury. In a similar way, you
must satisfy certain “status” requirements before maritime law and/or the Jones Act will even apply to your
situation. In general, you will qualify for protection
under the Jones Act (and file a claim under the Jones
Act) if you are a “seaman” who is more or less permanently assigned to a vessel in navigation. We will discuss this definition later (see page 14 ).
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Why Is the Jones Act so Important to You?
The Jones Act allows an injured employee to collect
money damages for any of the employer’s negligence
which may have caused or contributed to the employee’s injury. If your company or coworker was at fault
in causing or contributing to your accident and injury, you can collect compensation from your employer
for your injury and damages. This law is very different
than the general rule that an employee cannot sue his
employer even if the employer caused his injury.
Determining your status is the first and foremost
step in better understanding the situation surrounding
your injury.
Main Points: - The Jones Act protects injured employees.
- The Jones Act allows employees to collect damages
from negligent employers. - The Jones Act only applies to seamen.
¤ Jones Act- a federal statute which provides extensive protections to
an employee who is assigned to a vessel and is injured while working
offshore.
¤ Damages- money that is awarded through a court process to an injured
worker who has been hurt through the negligent or wrongful actions of
someone else.
¤ Negligence- refers to the failure of someone else to take the necessary
precautions to prevent injury to another.
UNDERSTANDING YOUR OFFSHORE INJURY
Def inition of a seama n
When Does the Jones Act Apply to You?
The first issue which must be addressed in any offshore injury concerns the “status” of the employee.
Determining the status of an injured employee can be
very difficult.
Although status in many cases is easy to determine
(for example, with supply vessel employees or tug boat
employees who are clearly seaman), the status of many
cases are not determined until a hearing in court. Your
status at the time of your accident can make a huge difference in the amount you may be allowed to receive
for your injury.
In order to be covered under the Jones Act you must
be considered a “seaman.” This means that you are (1)
more or less permanently (2) assigned to a vessel or fleet
of vessels (3) in navigation. You must satisfy all three
requirements in order to be considered a seaman and
have the Jones Act apply to your claim. We will look
more closely at what these requirements mean.
¤ Seaman- to be considered a seaman you must spend 30 percent or
more of your time on a vessel that is navigation.
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“More or Less Permanently”
The requirement that you be “more or less permanently” assigned to a vessel in navigation simply means
that you spend at least 30 percent of your time aboard
vessels while working for your employer. Many individuals will easily satisfy this requirement including
traditional captains of vessels as well as oil rig workers
who work aboard certain types of oil rigs in the Gulf
of Mexico. Other individuals, however, will need to
determine if their employer has assigned them to work
aboard a vessel enough times during their period of employment. In some instances it is important to calculate the number of days that the employee was assigned
to work aboard a vessel as opposed to assignments on
land or on fixed platforms. Remember, the requirement is that at least 30 percent of your time be spent
aboard “vessels” in order to qualify as a seaman under
the Jones Act.
“Assigned to a Vessel”
Many will debate whether you are assigned to a
“vessel.” Some structures are clearly vessels: traditional
supply boats, crew boats, tug boats and moving barges.
Employees who are more or less permanently assigned
to work aboard such structures easily satisfy the requirement that they be assigned to a vessel. In the Gulf
of Mexico certain types of oil rigs have also been deter-
UNDERSTANDING YOUR OFFSHORE INJURY
mined to be vessels. These include jack-up rigs, semisubmersible rigs and the more recent drill ships. Rig
workers assigned to these types of structures will also
satisfy the requirement of being assigned to a vessel.
“In Navigation”
Finally, you must be on a vessel that is mobile (able
to move) or in navigation. The vessel need not be moving at the time of your injury. Rather the vessel must
not be dry docked or out of service for good. Certain
specialty structures may or may not be considered a
vessel depending upon their mobility at the time of the
employee’s assignment or injury aboard the structure.
These structures include work barges which may or
may not have been rendered “work platforms.” In the
Gulf of Mexico fixed platforms as well as SPARs are
not considered vessels. These structures are essentially
permanently fixed to the ocean bed, so they are considered islands of the state off of which they sit. Injuries
on fixed platforms and SPARs will not qualify for the
Jones Act.
Main Points: - Three main factors define you as a seaman: you are
(1) more or less permanently (2) assigned to a vessel or
fleet of vessels (3) in navigation. - You must spend at least 30 percent of your time
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aboard a vessel. - Traditional supply boats, crew boats, tug boats,
moving barges, jack-up rigs, semi-submersible rigs and
the more recent drill ships are clearly vessels. - SPARS, fixed platforms, and structures permanently fixed to the sea floor are not considered vessels.
Are You a Seaman?
Do You Work on a Vessel?
Do You Spend 30 % or More of
Your Time on a Vessel?
Was the Vessel in Navigation or
Capabale of Navigation?
TRADITIONAL SUPPLY BOATS crew boats
recent drill ships tug boats
jack-up rigs MOVING BARGES
semi-submersible rigs
12 11
10
9
8
7 6 5
4
3
2
1
If you answered yes to all of these questions, then you may be a seaman. Contact an experienced, maritime attorney to confirm.
UNDERSTANDING YOUR OFFSHORE INJURY
Jones A ct S a f e t y r ul e s t h a t
protect you
The Jones Act provides comprehensive safety rules
in the favor of the employee. Most individuals working
offshore have no idea of the significant rights and safety
rules that apply to their day-to-day activities. Unfortunately, many companies routinely violate these rules.
“Safe Place to Work” Safety Rule
Under the Jones Act an employee has a right to a
“safe place to work.” This is one of the broadest rules
of the Jones Act and it applies to many situations which
can cause injuries. If your case is decided by a judge or
jury, that judge or jury will specifically determine if you
were given a “safe place to
work.”
If you have suffered
an injury and you think
that the injury may have
been caused because your
workplace was unsafe,
this could be a violation
of the Jones Act.
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What is Considered to be “Unsafe”?
Very often when we speak to potential clients we
are told that “we always did the job that way” even
though specific rules and regulations were being violated. Many times these individuals are not even aware
that their safety was in jeopardy. To combat this, we
have compiled a list of some of the most common unsafe conditions offshore:
• Inexperienced or inadequately trained crew
• Faulty machinery
• Poorly maintained conditions or work areas
• Defective equipment
• Existence of dangerous conditions (such as grease
or oil on surfaces)
• Size of crew is insufficient (improper manpower)
• Equipment isn’t fit for its intended use
• Recreation facilities are unsafe
• No appropriate safety equipment and gear
• Slick surfaces such as on the deck
• Old, rusted equipment
“Proper Training” Safety Rule
Under the Jones Act your employer also has duties
to train you properly, to supervise your work activities
properly, and to provide enough employees to do the
jobs to which you are assigned.
UNDERSTANDING YOUR OFFSHORE INJURY
Often newly hired employees will not be properly
trained on how to do a job. Employers routinely refer
to “on-the-job training” (OJT). We have found that
this type of training can be insufficient for many of the
detailed, complicated jobs which require experienced
workers. Unfortunately, the more dangerous procedures tend to be harder to perform. Sometimes the
newest employee will be given the hardest job because
the more experienced, more senior employees do not
want to perform the harder job, leaving the new, less
experienced worker doing the most dangerous jobs.
“Proper Manpower” Safety Rule
Employers must also provide enough workers for the
job to be performed safely under the Jones Act. Some employers will continually perform a job without sufficient
employees simply because “it
has always been done that
way.” The Jones Act addresses this exact situation and the
judge or jury in your case will
be told that simply performing a job repeatedly the same
way does not necessarily
VS
Proper Manpower
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make the procedure safe. This is particularly true concerning procedures which are performed infrequently.
In these situations, many employers will not have sufficient manpower to perform the job because it is not a
routine procedure. Nonetheless, these employers very
often simply perform the job with the crew members
that are available at that time.
“Industry Standards” Safety Rule
There are many industry-specific rules and regulations which also apply under the Jones Act. These
industry standards include the American Petroleum
Institute’s (API) standards which apply to the operation of cranes offshore as well as rigging of cranes and
slings. Under the API rules, the crane operator is always “in charge” of any procedure being performed by
the crane. The crane operator is also required to have
a flag man present on all lifts and the crane operator is
ultimately responsible for the rigging of all loads.
“Coast Guard Regulations”
The United States Coast Guard rules also apply
under the Jones Act since the employee is assigned to a
Coast Guard “vessel.” This is the reason that the Coast
Guard will typically investigate serious injuries which
occur under the Jones Act. Coast Guard regulations
include keeping the vessel safe and making sure that
UNDERSTANDING YOUR OFFSHORE INJURY
there are no dangerous trip
or slip hazards aboard the
vessel. All walkways also
have to be properly marked
under Coast Guard regulations.
“OSHA Regulations”
Finally, OSHA regulations also provide guidance
under the Jones Act. OSHA
has detailed requirements
that inspections be performed of workplaces.
OSHA also requires that employees be given “safe”
work places and that all equipment and machinery be
working properly. Typically, OSHA will have detailed
specific rules such as requiring that the front of steps
be marked with some type of visible marker including
yellow paint.
Main Points: - As an offshore worker, there are many rules in place
that are meant to protect your safety and your life. Unfortunately, employers do not always follow these regulations. - You are entitled to a “safe place to work” and it is
Insider Tip
You can find all of the OSHA
maritime regulations here:
http://www.osha.gov/
pls/oshaweb/owasrch.
search_form?p_doc_
type=STANDARDS&p_
toc_level=1&p_
keyvalue=Maritime
You can also type “OSHA
regulations” into Google
and click the first link. You will
then need to click the third
link labeled “Maritime” near
the middle of the page.
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your employer’s responsibility to provide this to you. - Some examples of “unsafe” conditions are inexperienced or improperly trained crew, faulty machinery,
poor maintenance, defective equipment, dangerous
conditions, insufficient crew, tools used improperly,
unsafe recreation facilities, lack of proper safety equipment and gear, slick surfaces, and old, rusted equipment. - Your employer also has the duty to properly train
you and your coworkers. - The Jones Act further requires that employers provide enough workers to perform the assigned job safely.
- The Jones Act also specifies that employers must
follow the additional guidelines provided by the American Petroleum Institute, the Coast Guard, and OSHA.
UNDERSTANDING YOUR OFFSHORE INJURY
5 Tactics Your Company Will Use After Your
Injury - Most maritime companies try to take a recorded
statement from you immediately following your injury.
Many companies will hire insurance company representatives to “investigate” your claim. These representatives typically tell you that they are trying to help you
with your claim and they “just want to document your
injury.”
Do not believe these insurance company representatives. They work for your company, NOT you. In
almost all cases the reason they are taking a recorded
statement from you is to ask detailed questions about
your background, accident and injury in order to (1)
prove that they were not at fault for your accident, (2)
prove you may have been at fault for your accident,
and (3) catch you in a misstatement about anything (see
item 5 below). You should never provide a tape recorded
statement to your company or its insurance representative. - Your company will obtain surveillance on you.
Maritime companies try to obtain surveillance not only
after a lawsuit is filed but, incredibly, sometimes within
days of your accident and injury. We have seen many
cases in which within two to three days the company
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has hired private investigators to document the injured
worker’s daily activities. If you
are continuing to work outside
and trying to perform regular
activities following your injury,
your company may be trying to
obtain videotape of such activities. Very often companies will
refuse to pay for medical treatment based upon videotape that they have obtained of
you. - Your company will insist that you receive treatment from their chosen doctor. Even though maritime
law is very clear that an injured worker has the right to
choose his own treating physician, almost every maritime company will insist that an injured worker receive
medical treatment from a doctor that it chooses. This
can be devastating to you and your future.
If you receive treatment from a company-chosen
physician, sometimes it is impossible to prove the nature of your injury. Most company-chosen physicians
refuse or delay required medical testing which could
prove the nature of your injury. Most company physicians will simply suggest that you wait several weeks
following your injury to see if it resolves itself. These
doctors very often encourage you to “try” to return to
Insider Insight
UNDERSTANDING YOUR OFFSHORE INJURY
work as soon as possible regardless of whether you have
had basic medical testing performed. And once you return to work, it is very difficult to get approval for additional medical treatment since the company will claim
that you were “able to return to work.” - Your company will refuse to let you choose your
own treating physician. This tactic goes hand-in-hand with tactic
3 above when your company insists that you receive treatment
from a doctor that it has chosen.
Very often your company will tell
you that you must see a companychosen doctor at the start of your
treatment.
Unfortunately, once this doctor declares that you
are released to “full duty” work, your company will
then use this as an excuse to refuse you the right to see
your own chosen physician. Once you begin treatment
from a company-chosen physician, very often it is impossible for you to receive treatment from other doctors later on. It is always best to insist that you be seen
by a doctor that you trust and that you choose. You
have the right to select your own treating doctor. - Your company will make every effort possible to
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catch you in a misstatement. This is one of the most
frustrating tactics used by offshore maritime companies in fighting maritime injury claims. Every single
case we have handled involved company lawyers trying
to catch the injured party in a misstatement (or as they
say, a “lie”).
The nature of the misstatement does not make any
difference. For example, if you told the company during
your recorded statement that you had never sustained
any injuries in the past, yet years ago you temporarily
suffered a 3 month knee injury from which you fully recovered, this misstatement could end up ruining your
case even if it has nothing to do with your offshore injury.
You will be put on trial during your case and any
misstatement that you make, regardless of how inconsequential, may ruin your case. It is very important that
you understand your company will be prosecuting you
from the beginning of your case during your offshore
maritime claim and everything you say and do will be
questioned by the company as well as the company lawyer.
They want to focus your case away from your injury and on other issues, including any trivial incorrect
statements you may have made in the past.
Insider Insight
UNDERSTANDING YOUR OFFSHORE INJURY
Common Mi sconce ptio n s &
Issues
There are several common issues that appear in
many Jones Act cases. We have found that many of our
clients have specific questions concerning the following issues.
Accident Reports
There is absolutely no requirement that an employee complete a written accident report under the
Jones Act. Although it is certainly best to document
your accident and injury with a written accident report,
the Jones Act does not prohibit your claim from being
filed if an accident report was not completed. Very often an employee will report his accident and injury to
a supervisor who tells the employee to delay completing a report in order to determine if the injury is serious. Then, when the employee attempts to complete
the written report later, he is told that he can no longer
complete the report at that time. Just remember, completing an accident report is absolutely not required
to file suit and successfully collect damages under the
Jones Act.
The Jones Act requires only that you prove that you
suffered an injury at work for which your employer was
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responsible. You may prove such without a written report. We have successfully proved accidents by using
employees’ medical records, the testimony of their coworkers, or their own testimony.
Recorded Statements
An employee is not required to give a recorded
statement under the Jones Act. Many companies will
immediately take a tape-recorded statement from an
injured employee following his accident. Providing a
tape-recorded statement does not in any way help or
strengthen your case. In fact, most tape-recorded statements will hurt a worker’s Jones Act claim.
Typically employees are told that they need to provide recorded statements in order to receive medical
treatment and to properly document their accidents.
Again, there is absolutely no requirement under the
Jones Act or any other law that the employee provides
a recorded statement. Nonetheless, many workers will
provide statements believing that it is necessary in order for them to receive medical treatment.
When the statement is taken, detailed questions
concerning the accident are asked, including whether
there was anything unsafe that caused or contributed
to the accident. Many employees have not had time to
UNDERSTANDING YOUR OFFSHORE INJURY
think through the accident and typically will answer
very quickly that the company was not at fault for the
accident (and they just want to get medical treatment
and get back to work). Often employees believe that
their injuries may be insignificant and believe that they
will keep their job with the employer. Sometimes employees are taking medication when they provide the
recorded statement and they simply do not understand
or listen carefully to the questions.
In general, it is best to refuse to give a recorded statement following your accident. You may simply inform
the company very politely that you either have completed a written report or will complete a written report
concerning the accident at which time you can carefully provide answers to any necessary questions. If your
company insists that you provide a recorded statement,
your company is protecting itself, not you.
Treating Physician
Under the Jones Act you are allowed to choose
your own treating physician following your injury.
This is perhaps the rule most violated by companies.
It makes perfect sense that your employer would not
want you to select a good, unbiased physician for your
injury. Your employer seldom has any desire for you
to receive immediate proper medical treatment which
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could potentially prove the seriousness of your injury.
Instead, most employers will provide you with a “company doctor” who will delay running necessary tests or
delay providing specialized treatment for your injury.
Not only can this be detrimental to your overall health
but also to any future claim you may want to have. This
tactic typically serves two purposes.
First, the company can later say that your injury
was not very serious since you received only basic, conservative treatment for several months following your
injury. You will also not have proper testing performed
to show the nature and extent of your injury during the
first few months of your recovery.
Second, if a company doctor treats you for several
weeks or even months and then declares that you have
reached maximum improvement and you do not need
any further treatment, your company will typically refuse to provide you with any further medical treatment
on these grounds.
So, while you may think you are cooperating with
the company by going to see a doctor that they have
selected to treat you, in reality you may be making it
very hard for yourself to receive proper medical treatment if the company-selected doctor discharges you. It
is always best to insist that you receive treatment from
UNDERSTANDING YOUR OFFSHORE INJURY
a doctor that you select and trust. It is also best to insist
that all proper medical testing be performed as soon as
possible following your injury.
Negligent Medical Treatment
If you receive negligent medical treatment from
a doctor selected by your company to treat you, your
company is responsible for this negligent treatment.
Typically this occurs when a company-selected doctor
delays treatment of a condition that could have been
properly treated early on. It may also occur nowadays
especially when individuals receive treatment in foreign countries while working overseas. We have handled several cases in which the employee did not receive proper treatment from an overseas medical clinic
selected by their employer. In these circumstances the
employer is responsible for the negligent medical treatment as well as any damage caused by the treatment.
Main Points: - You’re not required by law to complete a written
accident report, especially not immediately after your
injury when you’re dazed. You should do one when you
are clear headed and are able to reflect on the incident. - Despite what your company may say, you do not
have to provide a recorded statement.
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are not required to use the company doctor for your injury. If you receive treatment from the company doctor, it may be hard to receive future medical treatment. - Your company is responsible for any negligent
medical treatment you receive from their chosen doctor or hospital.
3 Maritime Injury Myths Debunked
You must give an accident report.
Myth 1:
Accident reports are not required.
Fact 1:
Statements are not required by law.
Fact 2:
You must give a recorded statement.
Myth 2:
You can choose your own doctor.
Fact 3:
You must see the company doctor.
Myth 3:
UNDERSTANDING YOUR OFFSHORE INJURY
When Cons id e ring a jo n e s
act cl a im
Who is at Fault?
There are two important points to remember when
you consider filing a suit against your employer under
the Jones Act. First, in order to receive compensation
under the Jones Act you must prove that your company
or your coworkers were negligent. The Jones Act is a
fault-based statute, meaning that you only collect damages if your company was at fault. This fault can take
many forms, including the improper or unsafe acts of
your coworkers, an unsafe workplace, or unsafe or improper instructions. It is often easy to show that your
injury could have been avoided if your company acted
in a safer manner.
Second, the Jones Act allows your employer to allege and argue “comparative fault” on your part. This
means that if your company can prove that you caused
¤ Comparative fault- (also known as comparative responsibility) a
legal policy that compares the fault of each party (both defendants and
prosecution) for a single injury. This is determined by looking at how
responsible each party is for causing the accident.
Part II: Filing a Claim
TIMOTHY YOUNG
or contributed to your own accident and injury, this
amount of fault will reduce your recovery by that percentage. For example, if your company proves through
evidence and testimony that you contributed 50 percent to your own accident, any damages which
you are entitled to under
the Jones Act will be reduced by 50 percent.
It is critical that an
injured employee understand the nature of the
Jones Act in this regard.
This comparative fault
rule fully explains why
almost all companies will immediately blame an injured
Insider Insight
The Jones Act’s comparative
fault statute is one of the main
reasons why a company will
immediately blame an injured
worker for his/her own accident.
This statute allows companies
to argue that you were partly to
blame for your accident and if
they convince the judge or jury,
they could potentially reduce
what they have to pay you for
your injury.
The Jones Act’s Comparative Fault
You claim the
company was
% at fault. claims you were % at fault.
The company
Your compensation
is reduced by the
percent that your
company proves $you are at fault.
UNDERSTANDING YOUR OFFSHORE INJURY
employee for their own
accident. It also explains
why a company will immediately take a recorded statement from the
injured employee and
discuss the way that the
accident happened during the statement. In short, the company is simply trying to defend itself early and quickly against any type
of claim that you may later file under the Jones Act.
Our office strongly encourages injured workers to state
clearly why their accident happened, including listing
any fault on the part of the company or their coworkers on the accident reports. Injured employees should
also be sure to list any dangerous condition or unsafe
equipment which may have caused or contributed to
their accident.
The Jones Act’s Burden of Proof
Under the Jones Act an employee has a “featherweight” burden of proof in regard to causation of his
injuries. This is a very important and favorable rule
under the Jones Act. When you present your maritime
case to a judge or jury, you must be able to prove that
your injury was caused by your accident. The Jones Act
greatly helps you by requiring only a “featherweight”
Insider Tip
When submitting an accident
report, always state clearly how
your accident happened and if
anyone contributed to it. You
should also list any dangerous or
unsafe conditions or equipment
that may have caused your injury.
TIMOTHY YOUNG
burden of proof to show that your injury was caused by
the accident. This rule is especially helpful if you have
previously injured the same part of your body as you
injured in your current accident. By using the featherweight burden of proof, you may be able to successfully
show that your current injury was caused by the most
recent accident, even if you had previously injured the
same part of your body many years ago.
Main Points: - To receive compensation under the Jones Act, you
must prove that your company or coworkers did something wrong to cause your injury. - Your employer is allowed to counterargue that you
caused your own injury. This is called “comparative
fault” and allows them to reduce how much they pay
you by the percentage you caused your own injury. - Your employer will almost always try to prove that
you caused your own injury. They will do this by keeping you under surveillance, by getting you to sign accident reports that claim you were at fault, by using their
own doctor, and by getting recorded statements from
you. - The Jones Act has a featherweight burden of proof,
which means it takes less for you to prove that your injury was caused by your accident.
UNDERSTANDING YOUR OFFSHORE INJURY
Typ es of Comp ensatio n
u nd er Jones act l a w
What Can You Get from a Jones Act
Claim?
Under the Jones Act you are entitled to collect any
damages which are directly related to your accident.
Typically these damages will include pain and suffering, medical expenses and loss of wages and fringe benefits.
Pain & Suffering
There are two types of pain and suffering damages
that you can collect under the Jones Act: past pain and
suffering and future pain and suffering. The damages
allowed for pain and suffering depend greatly upon the
nature of your injury. You will be allowed to collect
damages for both past as well as future pain and suffering if you prove these damages at trial.
In regards to past pain and suffering damages, your
testimony as well as the testimony of your treating doctors will be very important. We also routinely call as
witnesses an injured employee’s spouse or friends to
¤ Pain and suffering- physical or emotional stress caused by your injury.
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testify as to how the injury has affected the employee’s
life.
However, with future pain and suffering damages it
is often best to rely upon your treating physicians who
can testify as to whether or not your condition will improve or worsen in the future. Judges and juries are
allowed to estimate the amount and type of pain and
suffering that you will most likely experience in the future, and under the Jones Act they are allowed to award
money damages for this suffering even though it has
not occurred.
Medical Expenses
Like pain and suffering, you can
get compensation for past and future
medical expenses related to your injury.
Loss of Wages
You are also entitled to recover for past and future
loss of wages and fringe benefits that are directly related
to your injury. Our office routinely works with experienced economists who will calculate the exact value of
¤ Loss wages- the income you would have earned if you were not injured.
h
UNDERSTANDING YOUR OFFSHORE INJURY
your past and future loss of wages and fringe benefits.
In almost all cases, an expert economist is required to
predict future loss of wages. Most courts will not allow
an employee to collect loss of future wages and future
fringe benefits unless an expert economist has made
these calculations for the jury.
Calculating your loss of past and future wages
greatly depends upon the amount of money that you
were earning at the time of your injury. However, the
Jones Act also allows you to be awarded money based
upon promotions and raises in pay which, in all likelihood, you would have received had you kept working.
This can be very important for long-term employees
who have a proven history of receiving pay raises over
their years of employment.
Our office is very careful to calculate future wages
assuming that certain employees may have received
pay raises in the future. This can make the difference
between collecting the amount to which you are truly
entitled rather than simply the amount which appears
on your current paycheck.
Loss of Fringe Benefits
One of the great benefits of working offshore or on
a vessel is the significant fringe benefits that many mar-
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itime employees receive. Most often you will no longer receive these fringe benefits after you are injured.
Fringe benefits typically include:
• Meals provided to the employee while working
• Retirement benefits
• Health insurance
• Disability insurance
Our office will obtain all of your pay records including the value of your fringe benefits and use this
information to calculate the true value of your past and
future economic losses, including loss of fringe benefits. Sometimes your loss of fringe benefits can amount
to almost as much as your loss of actual wages.
Main Points: - There are four main types of damages you can collect under the Jones Act: pain and suffering, medical
expenses, loss wages, and loss of fringe benefits. - To collect past pain and suffering, often you will
need the testimony of your doctor and another individual who has seen how your injury affects you. For
future pain and suffering you will mostly rely on your
physician’s testimony. - To collect loss of wages or fringe benefits, you will
need an expert economist to prove how much you
would have earned over the years.
UNDERSTANDING YOUR OFFSHORE INJURY
Making the d e ci s ion to f il e
a jones act cl a im
How Soon Should You File a Claim?
Claims filed under the Jones Act must be filed within three years of the employee’s injury. Please note that
it is critical to file your claim as soon as possible after
your injury if you have sustained a serious injury. Individuals who choose to wait until the end of the three
year period may find that documents have been lost or
destroyed or witnesses simply do not remember important details concerning the employee’s accident. Although claims under the Jones Act do not need to be
filed until three years from the date of the injury, usually it is important to file the suit much sooner.
Where Should You File Your Claim?
A suit filed under the Jones Act can be filed in either state court or federal court. There is a legal principle known as the “savings to suitors” clause that provides that even though the Jones Act is a federal statute,
claims under the Jones Act may still be filed in state
courts, which recognize federal claims under the Jones
Act. However, if you file your claim in federal court
under the Jones Act, you alone have the right to select
either a judge or jury trial. By contrast, typically if a
Jones Act claim is filed in state court, either party will
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have the right to a trial by jury. Depending upon the
facts of your case and the federal judge to whom your
case may be assigned, sometimes it is better to select a
trial by judge rather than a trial by jury.
The location of the courthouse where you are allowed to file suit varies from case to case. Normally you
will be allowed to choose between several locations to
file suit. If you file suit in federal court, any federal court
in the United States has the
ability to hear your case.
However, in federal court
there is a rule known as “forum non conveniens” which
essentially requires that the federal court you select be
located near some of the relevant activities that did, or
will, occur in your case. This can include the location
of the original accident or the location of your treating
doctors or the location of key witnesses in your case including yourself. If you file suit in state court, there is
usually also a requirement that some of the activities
¤ Forum non conveniens- a legal rule that allows courts to require a
case be tried in the jurisdiction that is most appropriate to the parties
involved. This means that the federal court must be near some of the
relevant activities that did or will occur.
UNDERSTANDING YOUR OFFSHORE INJURY
in your case have occurred near that location. This requirement can often be satisfied if the company has an
office located nearby or if you were sent offshore from
that location.
Our office regularly files suits in federal and state
court in south Louisiana on behalf of workers from
Florida, Alabama, Mississippi and other southern
states, since their employers have offices in Louisiana
and/or the employee worked out of south Louisiana.
Finding the Right Maritime Attorney
It can be difficult deciding
to hire a maritime lawyer
much less researching them.
There are dozens and dozens of “maritime” law firms
listed online but which ones
should you choose?
Often people base their decisions on factors that would apply to other areas of
their life but do not necessarily apply to finding the
right maritime attorney. Some might use location, the
size of a billboard message, or a catchy song to help
them decide who to choose.
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However, we believe that the most
important factor you
want to consider is
whether or not the attorney is focused on
your circumstances. If
you are putting your
future in someone’s hands, it should be in the hands
of an experienced and focused maritime attorney who
knows your problems, knows how to solve your problems, and has the resources to do it.
Main Points: - If you’re going to file a claim, you must do it no later
than three years after your injury. We recommend you
do it sooner than that as the important documents related to your injury (such as your accident report, medical tests, statements, etc.) may have conveniently “disappeared” by that time. - The Jones Act allows you to file a claim in a federal or state court. We often choose federal court as it
allows you to choose whether your case is heard by a
judge or a jury. - If you’re going to hire an attorney to handle your
case, you should hire a maritime attorney that focuses
on your problem.
Insider Tip
Visit the below link to learn how
to effectively research attorneys
online and find the right maritime
attorney for you.
library/researching-maritime-lawfirms.cfm
UNDERSTANDING YOUR OFFSHORE INJURY
5 Qualities Your Jones Act Maritime Lawyer
“Must Have” - Must Focus On Jones Act And Maritime Injury
Cases. When you need to see a doctor, you want to go
see a doctor who specializes in the type of injury that
you have suffered. In the same way, you should hire a
maritime lawyer who focuses the practice on handling
Jones Act and maritime injury claims.
If you need to have open heart surgery, you would
want to have a heart surgeon who specializes in that
type of surgery. If you need to have knee surgery, you
would want to see a doctor who specializes in knee surgeries. Likewise, when you have a serious maritime injury, you should find a good maritime lawyer who focuses the practice on handling maritime injury cases.
Many “general practice” lawyers in your area are very
nice and know a little bit about lots of different laws.
Unfortunately, these lawyers typically are not experienced enough with complicated Jones Act and maritime laws to truly handle a maritime injury claim. - Must Have Extensive Courtroom Experience.
It is amazing how many attorneys never actually go to
court to argue aspects of the case or try cases before
judges and juries. Maritime lawsuits are defended by
the insurance companies and company lawyers. These
TIMOTHY YOUNG
company lawyers will fight every issue in your maritime
case and this often involves arguing motions before the
court. Very often Jones Act and maritime cases are prepared all the way up until the point of trial, at which
time a fair settlement can finally be reached. If not, your
case will need to be presented to a jury. Your maritime
injury attorney will most likely spend as much time in
court on your case as he will working on the case outside of court. It is very important that your attorney
have extensive courtroom experience so that he can
successfully handle your case. - Must Have Significant Financial Resources
(Money!). Your maritime injury claim will be expensive
to present successfully to a judge or jury. Typically,
your claim will involve loss of past and future wages
and fringe benefits. An economic expert is necessary
to testify regarding this issue at trial. Your case may
require a liability expert to show what the company did
wrong that caused your injury. These experts require
payment up front and your maritime attorney will be
responsible for hiring and funding these experts until
your case can settle. For every dollar that the company
spends in an effort to defend your claim, your attorney
must be prepared to finance your case in a similar way.
Insider Insight
¤ Motion- a legal request for the judge to determine some aspect of
the case.
UNDERSTANDING YOUR OFFSHORE INJURY - Must Have a Great Team. Your maritime injury
claim will require office resources and skills as well as
financial resources. In order to successfully prove your
case, hours and hours of effort and work will be spent
in accumulating the necessary documents and obtaining the necessary testimony to prove your case at trial.
This work includes getting all of your medical and
work records, arranging and paying for medical treatment so that you can prove your injury, hiring and working with experts in regards to your damages, working
with experts to prove the fault of the company, scheduling and taking depositions from key witnesses, and
organizing all of these documents and information so
that they can be successfully presented at court. Your
maritime attorney needs to have an office staff that is
experienced and able to prepare your case. - Must Be Ready To Prepare Your Case Fully.
This may be one of the most important requirements
of your maritime injury attorney. Very often successful
attorneys will have significant financial resources, office staff and even have experience handling maritime
claims. However, many of these attorneys will accept
lots of cases but truly pursue only a few of these cases.
¤ Deposition- a legal question and answer session that is recorded and
later used in court as testimony.
TIMOTHY YOUNG
In other words, they may accept your claim and if they
eventually determine that they do not view your case as
a “high dollar case,” they may limit their work on your
case. Your attorney must be ready to prepare your case
fully for trial. When you hire your attorney, you should
ask if he is truly ready and able to prepare your case fully in order to obtain a good settlement or trial result.
Insider Insight
FOCUS
RESOURCES PREPARATION
GREAT
TEAM EXPERIENCE
UNDERSTANDING YOUR OFFSHORE INJURY
Filing Suit und er Genera l
Maritime Law
Lawsuits filed under general maritime law must be
filed within three years of the accident that gives rise to
the suit. It is usually best to file the claim as soon as possible to prevent the loss of valuable records.
These suits can be filed either in state court or federal court. There is no right to a trial by jury under a
claim based solely on general maritime law.
However, when a general maritime law claim is
combined with another basis for jurisdiction within
the court, including the Jones Act and/or diversity of
the parties, the injured party will have the right to a
trial by jury.
While only “seamen” can file suit under the Jones
Act, any individual can file a suit under general maritime law if he or she has been involved in an accident
that occurred on navigable waters.
Typically passengers aboard cruise line vessels as
well as offshore workers who are injured by non-employer third parties will file their claims under general
maritime law.
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Negligence under General Maritime
Law
Maritime law provides that a party is responsible
for any damages caused by their “negligence.” Negligence under general maritime law is defined as failing
to do what a reasonable person would have done under
similar circumstances. This is the “reasonable person”
test which also applies to most state-based negligence
claims.
Typically, a party can prove negligence under maritime law by showing that the defendant failed to take
some type of action which should have been taken or
by showing that the defendant acted in an improper
or unsafe manner. In order to recover under a general
maritime law claim, you must prove that the defendant
was “negligent.”
General maritime law also provides for comparative fault against the party filing suit. This means that
the defendant can and will try to claim that the injured
party was responsible in whole or in part for causing his
or her own injury.
Injured offshore workers who file suits against nonemployer third parties will still need to show that they
did not in any way cause or contribute to their own ac-
UNDERSTANDING YOUR OFFSHORE INJURY
cident.
If the injured party is found to be at fault for his or
her own accident, then the damages are reduced by the
percentage of fault. So, if the judge or jury finds that
the injured party was 20 percent at fault in causing his
or her own accident, the damages will be reduced by 20
percent.
Finally, maritime law will also allow defendants to
reduce the amount of damages they must pay by any
other non party’s fault.
For example, if another company caused your accident and that company is not named in your lawsuit,
then the defendant in your lawsuit may try to place
blame upon the unnamed company.
If the defendant is successful, your damages will
be reduced by the amount of fault placed upon the unnamed company. This is why when you file suit, it is
very important to name as a defendant any party that
may be responsible for your accident.
¤ Seaworthy- a vessel is seaworthy if it is reasonably fit for its intended
purpose and if all equipment or accessories are also fit for the intended
purposes.
TIMOTHY YOUNG
General Maritime Law Unseaworthiness
One of the main principles of general maritime law
is the doctrine of seaworthiness. Under general maritime law a vessel owner must provide a “seaworthy”
vessel. The law states that every vessel must be “reasonably fit for its intended purpose.” This includes not
only the vessel itself but also its equipment and “appurtenances,” or accessories.
If a piece of equipment breaks or malfunctions, and
this contributes to your accident, typically a claim will
be filed under general maritime law under the doctrine
of seaworthiness (along with any other appropriate
claim such as a Jones Act claim). The doctrine of seaworthiness only applies to the vessel owner.
Damages under General Maritime Law
General maritime law provides that injured parties
shall be compensated for all damages related to their
injuries. This includes
• Past and future loss of wages
• Loss of fringe benefits
• Past and future physical/mental pain and suffering
¤ Punitive damages- these damages go above and beyond typical
damages and are aimed at “punishing” the defendant. Punitive damages
are not typically awarded, but you should still seek these damages.
UNDERSTANDING YOUR OFFSHORE INJURY
• Past and future medical expenses
Please note that if you have filed a Jones Act claim
along with a general maritime law claim, you cannot
collect double the damages.
Punitive Damages Under General
Maritime Law
General maritime law allows a party to seek punitive damages against the defendant.
While the law is very complicated as to whether all
injured maritime workers can seek punitive damages
under maritime law, we typically ask for such in almost
all cases we file.
Maintenance and Cure under General
Maritime Law
Under general maritime law an employer has an obligation to provide its injured employee with “maintenance and cure.” Typically maintenance and cure claims
¤ Maintenance-defined by the law as the amount it costs for you to
maintain yourself on land as your employer did at sea. You are entitled to
receive maintenance if you are injured.
¤ Cure-defined as medical expenses that are reasonable and related to
your injury. You are allowed to select your own choice of treating physician
and your company must pay for any medical treatment that is reasonable
and related to your injury.
TIMOTHY YOUNG
are filed by injured seamen since these individuals are necessarily
filing suit against their
employers.
The law states that
all ambiguities or doubts
in regard to a maintenance and cure claim should be resolved in favor of the seaman. This doctrine gives you
an idea of how strong your rights are to maintenance
and cure benefits. Maintenance is defined by the law
as the amount it costs for you to maintain yourself on
land as your employer did at sea.
In other words maintenance typically includes the
costs for your lodging, food and monthly bills while you
are injured. Most companies pay a fixed rate of $15.00
to $30.00 per day as maintenance. There is absolutely
no basis in the law for the payment of this amount.
Most companies arbitrarily select this amount and
argue that this amount has been paid for many years to
injured seamen. It is very important that you seek the
maintenance rate that is proper to pay your expenses
while you are injured.
Insider Tip
You will receive in the mail a free
Maintenance & Cure checklist
as well as a Monthly Expense
Letter to fill out and give to your
company. If you do not receive
these resources, please call us
at 504-680-4100 and we will
send them immediately.
UNDERSTANDING YOUR OFFSHORE INJURY
Cure is defined as medical expenses that are reasonable and related to your injury. You are allowed to
select your own choice of treating physician and your
company must pay for any medical treatment that is
reasonable and related to your injury. If your employer
fails to pay maintenance and cure, you can present a
claim to the judge or jury that your employer was (1) unreasonable in failing to pay maintenance and cure and
(2) arbitrary in refusing to pay maintenance and cure.
There is an escalating standard as to whether your employer was, first, unreasonable, then, arbitrary.
If your employer is found to be unreasonable in failing to pay maintenance and cure, you may be awarded
attorney fees associated with having to file suit in order
to receive maintenance and cure.
Additionally, if your employer is found not only
to be unreasonable but also arbitrary in failing to pay
maintenance and cure, you may be awarded both punitive damages and damages for any worsening of your
condition due to your employer’s failure to pay your
maintenance and cure.
Main Points: - Claims under general maritime law must be filed
within three years of your injury.
TIMOTHY YOUNG - Only seamen can file under the Jones Act, but any
individual injured on navigable waters can file a general maritime claim. - Like the Jones Act, general maritime law allows for
comparative fault. - The amount you receive for your claim could be reduced by the percentage of fault attributed to a third
party. - Under maritime law, a vessel owner must provide a
seaworthy vessel. - You cannot collect damages with both a Jones Act
claim and a general maritime claim. - General maritime law allows for punitive damages.
- An employer is obligated to pay for you to be able
to maintain yourself on land as your employer did at
sea. This is called maintenance. - Maintenance is the amount it costs for you to maintain yourself on land. This includes expenses such as
rent, clothing, transportation, food, and other monthly
expenses. - Your employer must pay for medical expenses that
are reasonable and related to your injury. This is called
cure. - Cure is considered the medical expenses that are
reasonable and related to your injury.
UNDERSTANDING YOUR OFFSHORE INJURY
Fr equently A ske d
Questions About Of f s h o r e
I nju ri es and Maritime
Cl a ims
Should I Return to Work as Soon as
Possible After My Injury?
You should not attempt
to return to work unless your
injury was very minor and you
are positive that you have fully
recovered from your injury.
Many workers insist that they
want to return to work immediately after their injury because they need to receive full
wages.
This is “penny wise but pound foolish” as they say.
Some of these workers will receive treatment from company-chosen doctors who immediately release them
to “attempt” to return to work following their injury.
Very often this can be a critical mistake to your future.
Part III: FAQs
TIMOTHY YOUNG
If your injury becomes aggravated or worsened after you attempt to return to work, very often the company will then claim that you are responsible for making your injury worse. Even though the doctor may
have returned you to work, the focus of your claim will
then become if you made your injury worse after you
returned to work. You will be faced with a situation of
having to prove that you did not seriously aggravate or
worsen your condition when you attempted to return
to work.
Additionally, many companies will claim after you
return to work that “you were perfectly fine while at
work.” In other words your company may be watching
you after you return to work and even if you later claim
that your condition continued to bother you, your
company may claim that you were perfectly fine after
you returned to work.
Finally, once you return to work your company will
very often refuse to provide you with any further medical treatment. Your company will argue that since you
were able to return to work, you no longer need medical treatment. Overall, returning to work too quickly
before you have fully recovered from your injury can
not only ruin your maritime injury claim if you file one
but can also seriously worsen your injury.
UNDERSTANDING YOUR OFFSHORE INJURY
Should I Try to Settle My Case Without
an Attorney First?
Many offshore workers ask if they should meet
alone with the company or the company’s insurance
representative to discuss settlement with the company,
before the worker speaks with or hires an attorney. In
almost all cases this is a horrible mistake.
First, the company typically will not make a firm
offer to you. Instead the company will repeatedly ask
“how much” you would like to settle the claim for. No
matter what figure you give to the company or the insurance representative, the company or insurance representative will offer significantly less. Sometimes the
injured employee has no idea the value of his claim if
he has not yet talked to a maritime lawyer.
You may believe $10,000, $15,000, or even $20,000
is a fair amount for the injury you’ve incurred, but
your medical bills could come out to three times that
amount and so your case could potentially be worth
much more. Your company’s objective is to pay as little
as possible; yours should be to look after your injury
and your future.
More importantly, very often injured maritime
workers will try to settle their claims so that they can
TIMOTHY YOUNG
obtain money to receive further medical treatment. If
there is any need whatsoever for further medical treatment, it is critical that you do not settle your claim until
all necessary medical treatment has been performed.
Most company doctors will not perform expensive
medical testing to fully discover any possible injury.
You simply cannot settle your maritime claim until an
independent, trustworthy doctor has performed all
such testing. It would be like trying to buy a car without test driving the car, or even seeing the car beforehand. You would simply be guessing at the value.
Won’t I be Blacklisted if I File Suit?
The “blacklist” was a rumor started many years ago
by offshore companies in an effort to scare employees
from filing suit. Our office has handled claims for several individuals who have successfully returned to work
offshore following the resolution of their injury claims.
When you apply for employment in the future after
your maritime injury, it is critical that you are honest
about your past injury and the medical treatment that
you have received. However, companies should not ask
if you have ever filed suit in the past. If such question
is on your application, you are under no legal obligation
to answer such question.
UNDERSTANDING YOUR OFFSHORE INJURY
If I Hire an Attorney, Will My Company
Cut Off My Advances?
Many maritime companies provide employees with
monthly payments that the company characterizes as
“advances.” While it is true that most companies will
terminate these “advancements” if you file suit, in almost all cases you will have other means of financial
support which can be used in such situations. If you
have any short or long-term disability insurance, you
can apply for and typically receive such benefits during
your case. Additionally, some state laws allow attorneys
to advance clients living expenses while their suits are
being prosecuted. Finally, if the company has characterized your monthly living expenses as “advances,” a
good maritime lawyer will argue that such payments
should have been included under your “maintenance”
payment. It is always best to think long term in regards
to your maritime injury rather than month to month.
You should be concerned about your future over the
next three to five years and not your monthly expenses
over the next three to five months.
The Company Doctor is Refusing to
Perform Medical Testing. What Should
I Do?
If you are receiving medical treatment from a company chosen doctor, very often the doctor will not im-
TIMOTHY YOUNG
mediately perform medical testing to fully diagnose the
nature and extent of your injuries. Today basic medical
testing should include MRIs as well as nerve conduction studies. An
MRI may be performed on your
neck, shoulder,
back, knees, ankles and other
parts of your
body. The MRI
test shows soft
tissue and ligament damages
that are not seen
on a plain film X-ray. If the company chosen doctor
is refusing to perform basic medical testing including
MRIs, you should seek medical treatment elsewhere
from a local physician you know and trust.
Unfortunately, many companies have little desire
to pay for medical testing which could prove the seriousness of your injury. Very often when the company
doctor delays or refuses to perform basic medical test-
¤ Soft tissue- Soft tissue injuries are those related to the tendons,
ligaments, connective tissue, skin, fat, muscles, nerves, and blood vessels,
but not bone.
UNDERSTANDING YOUR OFFSHORE INJURY
ing, it is the first sign that the company is fighting your
case.
How Much Will My Case be Worth?
Every case must be evaluated on the facts of the case.
There are a few basic, important factors that generally
determine the difference between a relatively small valued case and a higher valued case. One of these factors
is the amount of money you previously earned as opposed to how much you’ll be earning after your injury.
If you have suffered an injury which prevents you
from returning to heavy manual labor and you previously earned significant wages working offshore or performing heavy manual labor for a maritime company,
in all likelihood
you will have a significant loss of future wage claim.
Most highdollar Jones Act
and maritime injury claims involve significant loss of wage claims in
addition to pain and suffering damages and medical expenses.
Estimating the Value of Your
Jones Act Case
$ Previous Income
Income after injury
Amount of lost wages
TIMOTHY YOUNG
One way to estimate the value of your Jones Act
claim is to ask how much money you will earn returning
to limited or light duty work following your maritime
injury. You will then need to compare this amount of
income with what you were earning offshore or on the
water.
How Long Will My Case Take to be
Resolved?
Maritime injury cases are not quick, simple cases.
In a typical “soft tissue” car accident case, a paralegal
or legal staff member will negotiate a fast settlement of
a few thousand dollars for you with an insurance company adjuster.
Your maritime injury case is much more serious and
complicated. Your case will be handled by attorneys.
Typically if you have suffered a serious injury, especially injuries which have required surgery, you may be
seeking hundreds of thousands of dollars, if not more.
Maritime companies and their insurance companies simply do not pay settlements of this amount
without fully investigating and attempting to fight your
claim. This process takes at least a few months even for
smaller claims, and most serious maritime claims can
take 12 to 14 months to resolve.
UNDERSTANDING YOUR OFFSHORE INJURY
The time period depends greatly upon the court
where your suit has been filed. Some courts are much
quicker than others. However, you will usually have an
idea of the value of your case within a few months of
filing suit.
Main Points: - You should not attempt to return to work unless
you are completely healed. - It is not in your best interest to settle your case on
your own. Settling on your own could mean that you
miss out on hundreds of thousands of dollars that are
rightfully yours. - There is no such thing as a blacklist. We have had
several clients return to work offshore after their injury. No company should ever ask you if you filed suit in
the past. - Many times companies will stop “advancements”
once you hire an attorney. However, there are several
ways to supplement this lost income. - If the company doctor is refusing to give you proper
testing, you should seek your own doctor. - Cases can take anywhere from three to 14 months,
but it all depends on your unique situation. - Your case could be worth hundreds of thousands
of dollars depending on the facts of your situation.
TIMOTHY YOUNG
Common Me dic a l Te s t s f o r
Maritime and Of f s h o r e
I nju ri e s
Arthroscopic Surgery
Although arthroscopic surgery is considered a “surgical” procedure, very often it is used to diagnose injuries which may not be visible with other non-invasive
testing. Typically orthopedics will perform arthroscopic surgery on an individual’s knee and shoulder areas.
The purpose of this surgery is to not only repair any
damage which may be seen but to also actually identify
and visualize damage which may not have appeared on
prior MRI and CT testing.
CT Scan
A CT scan (or CAT scan) is a form of enhanced Xray that can diagnose soft tissue, organ and blood vessel
type injuries. Very often a CT scan will be performed
after an MRI scan to further diagnose or investigate
the individual’s injury. Typically the most helpful CT
scans are performed “with contrast.” This means that
the individual will drink (or have IV injected) a type of
dye before the CT scan is performed. The dye allows
Part IV: Medical info
UNDERSTANDING YOUR OFFSHORE INJURY
the CT scan to give a much more accurate, detailed image of the injured area.
Discogram/Myelogram
A discogram is a procedure during which dye is
injected into a person’s cervical or lumbar discs. The
purpose of the test is to determine if the injected dye
leaks out or goes beyond the subject disc.
Discograms can be a very accurate way to determine
the full extent of a person’s injury. Normally, healthy
lumbar and cervical discs will hold the small amount of
dye that is injected. This is because a normal, healthy
disc is fully enclosed and encapsulated. If a lumbar or
cervical disc has been injured, very often this will result
in a tear to the disc. When the small amount of dye is
injected into the disc, it will immediately leak out thus
indicating that the disc has a hole or tear in it. A discogram is often followed by a CT scan which will take
images of the disc and the dye in order to visualize if
the dye has moved outside of the disc.
A myelogram is very similar to a discogram in that
dye typically is injected around the injured lumbar or
cervical area. A CT scan is then performed to view the
area and the dye provides an enhanced image of any
damage to that area.
TIMOTHY YOUNG
EMG/Nerve Conduction Study
An electromyogram (EMG) is a test that is used to
record the electrical activity of muscles. When muscles
are active, they produce an electrical current. Typically
an EMG is given at the same time as a nerve conduction study. The most common type of nerve conduction study is known as a Nerve Conduction Velocity
(NCV) test.
These tests are used to diagnose nerve injuries and
muscle damage. Very often they will be given to individuals who have suffered lower back injuries or neck
injuries to diagnose nerve damage which may be occurring into the person’s upper or lower extremities
(arms or legs). The NCV will measure how quickly and
completely a person’s arm or leg nerve transfer ‘information’, or how quickly and completely they respond.
If nerve damage has occurred, very often the response
will be delayed or incomplete.
It is very important to note that most EMG/NCV
tests are not 100 percent accurate. Most physicians will
admit that the tests have at least a 10 percent margin of
error. Very often individuals with nerve damage will
have normal EMG/NCV tests even though they are experiencing nerve damage.
UNDERSTANDING YOUR OFFSHORE INJURY
Epidural Steroid Injections
Also known as “epidural injections” or “steroid injections”, this treatment is a series of injections typically given in a person’s neck or lower back in an attempt
to relieve pain from a damaged cervical or lumbar disc.
Epidural injections can also be given in an individual’s
shoulder area as well as other parts of the body. Epidural injections are very often described as both therapeutic as well as diagnostic. This means that the injection is given to provide relief to the patient as well as
potentially diagnose their injury. Most doctors believe
that if the patient receives temporary relief for a period of days or even a few weeks from the injection, this
means that the injection was most likely given at the
source of the injury. In this way, the injection serves as
a diagnostic tool to help the doctor identify the area of
injury.
IDET
IDET stands for intradiscal electrothermic therapy.
This procedure is minimally invasive and involves using a heated wire to seal any ruptures in the disc wall
and to burn nerve endings to reduce the amount of
pain. It aims to repair bulging discs before herniation.
MRI
A magnetic resonance imaging scan (MRI) is one of
TIMOTHY YOUNG
the most common tests performed to diagnose most injuries to a neck, back, shoulder or knee. An MRI scan
shows soft tissue and ligament damage and it provides a
much greater detailed view than does a CT scan. MRIs
will diagnose damaged lumbar and cervical discs as well
as torn ligaments. If you have suffered any type of injury that has bothered you for more than a few days, most
likely it is best to get an MRI scan performed. Many
doctors will delay performing an MRI since they may
not want to charge your company for the expense. It
is important that you insist that all medical testing be
performed, including MRIs. With today’s technology
an MRI should be considered a basic medical test.
The more traditional MRI is performed in a long
tube. There is also a more advanced type of MRI
known as a “stand up” MRI scan. A stand up MRI scan
is taken while the individual is in a standing position
(hence the name). Very often this can produce a more
accurate MRI scan which more accurately reflects any
type of herniated or damaged lumbar or cervical discs.
This is because the scan is taken while the individual is
actually placing weight on their lower back and neck.
Sympathetic Block
This type of test is performed as both treatment
and a diagnostic. A sympathetic block is given to a pa-
UNDERSTANDING YOUR OFFSHORE INJURY
tient to diagnose nerve damage typically into their lower legs, feet or ankles. The basic purpose of the sympathetic block is to “block” the nerve communication
from the suspected injury to the person’s brain. If the
sympathetic block is successful, the person will receive
relief since the injured part of the body temporarily
will not communicate with the individual’s brain. This
result indicates to the doctor that the person is suffering from nerve damage at the point of the injury. If the
sympathetic block is successful (and very often a series
of them are performed), the doctor may consider permanently “disconnecting” that nerve such that it will
no longer send messages of pain to the person’s brain.
X-ray
An X-ray is a basic imaging scan of an individual’s
bones. An X-ray does not show soft tissue or ligament/
tendon damage nor will it indicate nerve damage. Most
doctors and health facilities will immediately perform
an X-ray following an injury.
It is very important to understand that X-rays will
not diagnose the majority of serious injuries including
ligament/tendon damage, nerve damage, lumbar disc
injuries or joint damage. These types of injuries need
to be diagnosed with other tests including MRIs, CT
scans, and nerve conduction studies.
TIMOTHY YOUNG
I nd e x
A
Advances 62
American Petroleum Institute 21
B
Blacklist 61
C
Coast Guard 21
Comparative fault 22, 25, 27, 34,
35, 36, 45, 47, 49, 55
Comparative responsibility.
See Comparative fault
Cure 54
D
Damages 13
Deposition 48
F
Fixed platform 10
Forum non conveniens 43
Fringe benefits 40
G
General maritime law 10
J
Jones Act 13
L
Loss of wages 43
M
Maintenance 54, 63
Manpower 20
Maritime law
See General maritime law
N
Navigable water 10
Negligence 13
O
On-the-job training 20
OSHA 22
P
Pain and suffering 38, 43
Punitive damages 53, 54, 63
S
Safe place to work 18
Safety 18
Seaman 14, 22, 25, 27, 34, 35, 36,
45, 47, 49, 55
Seaworthy 52
Soft tissue 63
Status 12
T
Training 19
UNDERSTANDING YOUR OFFSHORE INJURY
e pilogue
It had been four weeks since Louis’ accident.
They had met with a very nice, local lawyer in
their town a few days after Louis got home. The
lawyer seemed nice enough, and he had helped
their neighbor with a family matter years earlier.
But he just didn’t seem to know anything about
maritime law or the Jones Act.
They had looked through the phone book but
all of the ads were about ‘car accidents’ or ‘medical malpractice.’ The few that did mention maritime claims seemed to include them in a list with
seven or eight other types of law. How could one
lawyer be good at divorce cases, criminal cases
and maritime claims?
Then Lisa saw an ad for a free book on maritime law and the Jones Act. She ordered it and the
book arrived the next day. As they flipped through
the pages, the book answered all of their questions.
Should Louis give a statement to the insurance company? Did he have to give a statement?
Could he receive more medical treatment since he
was still hurting? What rights did he have? The
book gave them the answer to all these questions,
TIMOTHY YOUNG
and more.
They felt so relieved to finally know something
about his future! Armed with answers to the most
basic questions regarding his injury and his rights,
they could now sit down and decide what to do.
And they could make an educated decision about
what direction to take their lives.
This felt good. Things were looking up…
76
UNDERSTANDING YOUR OFFSHORE INJURY
My name is Timothy Young and for more than 20
years it has been my privilege to help injured offshore
and maritime workers.
Something deep inside of me is stirred whenever I
know that a company is trying to take advantage of an
honest, hard-working employee who has had a serious
injury through no fault of his own.
Most often there is an employer/employee relationship, and to me that makes it all the worse when an employer is twisting the laws or facts to get out of paying
what it should for the serious damages it caused to one
of its own employees.
Most offshore and maritime workers would prefer
not to file a suit. They would rather go on with their
careers and turn back the clock to before the accident
happened. I understand that. But hoping to change the
past won’t make the future any better.
What we do is not simply gather evidence and experts to prove our client’s claim in court. That’s just
the ‘legal’ part of it.
Why We Practice Maritime
Law
TIMOTHY YOUNG
We also counsel our clients on their options and
how to map out the best future they can have with the
cards they were dealt. I can’t think of a more important
service we offer.
I often tell juries in closing arguments that they
have a rare opportunity to help a fellow citizen and directly impact a person’s life for the better. I tell them
they should not waste that chance. I also feel we have
that same opportunity with each new client we team up
with.
I hope you found this book both helpful and encouraging during your current difficulties. Please phone
us if you need anything or have any concerns you want
to talk about.
