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Cenac Marine Services, LLC v. Clark

United States District Court, E.D. Louisiana

March 22, 2017


         SECTION "F"



         Before 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.


         This is a consolidated case stemming from an injury to a seaman.

         On June 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.

         On June 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 accident.

         After 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 Percocet.

         Notably 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.

         Nearly 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.

         In the 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.

         Cenac 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.

         Clark 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.

         Cenac 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 and ...

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