United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the plaintiff's motion for summary judgment
to compel payment of maintenance and cure. For the reasons
that follow, the motion is DENIED without prejudice as
Jones Act litigation arises from a seaman's claim that he
injured his lower back falling on the deck of a barge
sometime in early December 2018. He did not report the
incident or seek treatment until months later. In February
2019, when he was diagnosed with cancer, he quit his job to
undergo chemotherapy treatment. It was then -- months after
the alleged slip and fall -- when he first sought treatment
for an alleged back injury; since in remission and undergoing
conservative treatment for the alleged employment-related
injury, he now seeks to compel his former employer to pay
maintenance and cure.
2018, Daigle Towing Service, LLC employed Mark Mullen as a
deckhand aboard the M/V MISS LAURIE. “[S]omewhere in
the beginning of December” of that year -- Mr. Mullen
does not recall the date of the alleged
incident -- Mr. Mullen alleges that he slipped and
fell on the wet deck of a barge in the tow of the MISS LAURIE
at Tiger Fleet in Baton Rouge, Louisiana. He did not report
the incident. Nor did he seek medical attention in the days
(or weeks) after the fall. The onset of back pain, he
alleges, was not immediate.
Mullen testified that his back began hurting days after he
finished his shift, while he was off the boat staying in a
hotel. Notwithstanding his alleged back pain --
while performing his regular duties, he alleges his back
would worsen; while off, it would improve -- he says he
continued to work his regular hitches (14 days on/7 days
February 2019, Mr. Mullen says he sought medical attention
for the back pain he attributed to his alleged
fall. After some x-rays and lab work, on
February 25, 2019, Mr. Mullen was diagnosed with cancer,
non-Hodgkin's lymphoma. He stopped working that same
month,  underwent treatment, and is now in
remission. However, he claims that his back pain persists and
prevents him from performing any type of manual labor.
2019, Mr. Mullen was evaluated by Dr. Pedro Romaguera, who
recommended an MRI of his lumbar spine. Dr. Romaguera also
recommended an orthopedic consultation and determined that
Mr. Mullen was not able to work. Mr. Mullen continues under
the care of Dr. John Logan, an orthopedic surgeon, who has
instructed Mullen not to return to work, recommended that he
undergo (and performed) facet injections at ¶ 4-5 and
L5-S1 bilaterally, and opined that he has not reached maximum
medical improvement from the alleged work-related injury.
15, 2019, Mr. Mullen's attorney, by letter to Daigle
Towing, demanded payment of maintenance and cure benefits.
Five months after the alleged incident occurred, this was the
first notice to Daigle Towing that Mr. Mullen was claiming to
have suffered a work-related injury sometime in
“December of 2018.” Twice more since then, Mr.
Mullen's attorney has demanded maintenance and cure.
Daigle Towing propounded discovery and launched an
investigation into Mr. Mullen's claim for maintenance and
cure. That investigation is ongoing.
31, 2019, Mullen sued Daigle Towing Service, LLC, asserting
Jones Act negligence, unseaworthiness and seeking to recover
maintenance and cure as well as punitive damages associated
with Jones Act negligence, unseaworthiness, and arbitrary
failure to pay maintenance and cure. In November 2019, Mullen was
granted leave to amend his complaint to add Lafarge North
America, Inc. as a defendant; Mullen alleges that
Lafarge's negligence and the unseaworthiness of its barge
contributed to his injury.
date, Daigle Towing has not paid maintenance or cure. Mr.
Mullen now seeks summary judgment compelling payment.
Rule of Civil Procedure 56 instructs that summary judgment is
proper if the record discloses no genuine dispute as to any
material fact such that the moving party is entitled to
judgment as a matter of law. No. genuine dispute of fact
exists if the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). A genuine dispute of
fact exists only "if the evidence is such that a