United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court are Cenac Marine Services' two motions: (1)
motion for summary judgment on the plaintiff's
maintenance and cure and related punitive damages claims and
(2) motion for leave to file a counterclaim. For the
following reasons, both motions are GRANTED.
a consolidated case stemming from an injury to a seaman.
5, 2015, Jason Clark applied for a position as a tankerman
with Cenac Marine Services, LLC. As part of the application,
Clark underwent a pre-employment physical at Houma Family
Practice, where he answered sixteen questions posed in the
physical form and fifty-two questions posed in a medical
history form. Clark signed the questionnaires and certified
that the information on the forms was correct and truthful.
The only medical history Clark indicated during this
physical, both to the screening doctor and on the
questionnaires, was a prior hernia with repair. He certified
he had no prior back injuries or back pain.
30, 2016, Clark completed a Cenac accident report form. He
indicated that he injured his back the day before, June 29,
2016, when he was moving a cross-over hose without the help
of his deckhand. The accident report form asked whether the
employee submitting the form had ever hurt the area of the
body allegedly injured in the report, meaning his back. Clark
answered “no” to this question, again certifying
that he had never injured his back before the June 29, 2016
Cenac deposed Clark and in the course of discovery following
the filing of Clark's lawsuit, Cenac obtained medical
records from Dyess Medical Center relating to its years-long
treatment of Clark. From these records Cenac learned that
Clark initially sought treatment from Dr. James Dyess after
he was in a vehicle accident that occurred in May 2011.
Clark's first appointment with Dr. Dyess was on August
25, 2011; Clark reported he experienced low back pain and
left shoulder pain since the May 2011 accident. The record
indicates that Dr. Dyess treated Clark from August 25, 2011
until April 28, 2016; Clark attended fifty-two medical
appointments during the four and a half year period. Over
this time Clark continuously complained of neck and back
pain. He received prescriptions for Soma, Norco, Ambien, and
in this case's timeline of events, Clark visited Dr.
Dyess on May 19, 2015; less than a month before applying for
a job with Cenac and answering medically-related questions on
June 5, 2015. At this May 19 visit, Clark reported no change
in his neck, lower back and hamstring pain; he also reported
anxiety, and insomnia. Dr. Dyess renewed his prescriptions
for Soma, Norco, Ambien, and Percocet. But only three weeks
later, Clark represented to Cenac and the pre-employment
physician that he had no previous neck or back pain and was
not under the care of a treating physician. Clark continued
to visit the Dyess Medical Center for treatment after his
employment with Cenac began. On April 28, 2016 Clark had his
last visit with Dr. Dyess after Dr. Dyess informed Clark that
he was releasing him from treatment and advised Clark to see
a pain management specialist.
two months after his last appointment with Dyess Medical
Center, Clark reported his work-related accident to Cenac and
completed the incident report form. In response, Clark was
taken to Houma Family Practice, where he also completed his
pre-employment exam, and was treated by Dr. Mark Walker.
Initially he was cleared for light duty work and then cleared
for duty without restrictions on July 12, 2016. He
purportedly failed to communicate and report to Cenac for his
assigned hitch. On July 13, 2016, Cenac terminated
Clark's employment for his failure to communicate and
report for work, poor performance evaluations, and various
violations of Cenac's safety rules during his employment.
weeks after his termination, Clark retained counsel, who
arranged for Clark to see Dr. Michael Chambers on September
7, 2016. Clark told Dr. Chambers he hurt himself while
working on Cenac's vessel and that he did not feel he
needed emergency medical attention at the time of the
accident. However, he reported that he was now experiencing
pain and discomfort, mainly in his back. At this appointment
he also informed Dr. Chambers that he had a history of lower
back pain. Dr. Chambers found tenderness in both the thoracic
and lumbar areas of Clark's spine; Dr. Chambers
prescribed medication, ordered an MRI, and advised Clark not
to work. In response, Cenac arranged for Clark to visit Dr.
Walker again on September 19, 2016; at this time he informed
Dr. Walker for the first time of his history of back pain.
Dr. Walker ordered an MRI immediately. The next day Dr.
Walker called Cenac and told Cenac he believed Clark needed
emergency medical attention for a spinal bone infection,
called osteomyelitis at the T9-10 level. The MRI also
revealed an annular disc bulge and disc desiccation at ¶
3-4 and L4-5 and a disc bulge at ¶ 5-S-1; these issues
were also present in a 2013 MRI taken in the course of
treatment at Dyess Medical Center.
agreed to pay maintenance and cure to avoid punitive damages,
but informed Clark's counsel that it was doing so
“under protest” with a full reservation of all
rights to seek reimbursement. Cenac's counsel then
learned from Dr. Walker that within a reasonable degree of
medical certainty, the osteomyelitis was not occupationally
or trauma related; Dr. Walker reiterated this medical opinion
in depositions taken in the course of this litigation.
received treatment from different specialists for his
infection. And, on November 4, 2016, Clark's infectious
disease specialist determined that Clark achieved maximum
medical improvement regarding his spinal infection. Dr.
Walker determined that Clark had reached maximum medical
improvement from an occupational physician stand point after
conducting a repeat MRI on November 28, 2016.
was first to file suit, seeking a declaratory judgment that
Cenac is not obligated to pay Clark maintenance and cure
benefits. Clark then filed a lawsuit against Cenac, alleging
Jones Act and unseaworthiness claims, as well as claims for
maintenance and cure and punitive damages for failure to pay
maintenance and cure. Cenac now moves the Court to grant
summary judgment in its favor on Clark's maintenance and
cure and related punitive damages claims. Additionally, Cenac
moves for leave to file a counterclaim against Clark for an
offset from any recovery he may be awarded for maintenance