Handling Claim Personal Injury by jolinmilioncherie

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									JONES ACT CLAIMS
   Personal Injury

      A Primer
WORKERS’ COMPENSATION
 •   State Workers Compensation
 •   Federal Workers Compensation
 •   Longshore Act Compensation
 •   Jones Act
     Workers Compensation
•   No Fault
•   Usually 2/3 wages
•   Course and Scope of Employment
•   Permanent Partial Disability Awards
•   No Pain and Suffering
•   No Lawsuit for Benefits
          Jones Act Status
• Substantial Connection to a Vessel of
  Sufficient Nature and Duration

• Vessel in Navigation

• Performs a Function that Helps to
  Accomplish the Mission of the Vessel
      BLUE WATER SHIPS
• Sailors are Jones Act Seamen
    Blue Water Seaman
• Lives on Vessel and Therefore has
  Sufficient Connection

• Ship is in Navigation and Transports
  Cargo

• Performs a Function that Assists the
  Vessel’s Mission
On the Job Injury
    Jones Act vs. Workers Comp

•   Must sue to get benefits
•   Must prove negligence or unseaworthiness
•   Full Wage Loss, Past and Future, Recoverable
•   Pain and Suffering Recoverable
•   Maintenance and Cure Recoverable
•   Right to Jury Trial
Seaman Causes of Action
• Negligence (Jones Act)

• Unseaworthiness

• Maintenance and Cure

• Attorney’s Fees

• Damages for Failure to Pay Maintenance and
  Cure
         Maintenance and Cure
• Injury or Illness that Manifests Itself in the Service of the
  Ship
• No requirement that injury or illness arises in the course
  and scope of employment

• Food, Lodging and Medical Care

• Not a Substitute for Wages

• Subsistence Amount

• Often Governed by Collective Bargaining Agreement
    Defenses to Maintenance
• Willful Misconduct (Usually Intoxication)

• Fraudulent Concealment

• Failure to Mitigate
• Comparative Negligence Not a Defense
         Unearned Wages
• Wages to the End of the Voyage
• Usually the Seaman signs Foreign Articles
• Foreign Articles not mandatory for
  Unearned Wages
               Causation
• Jones Act -- Any Negligence no Matter
  How Slight the Connection to the Injury will
  be Grounds for Liability

• Unseaworthiness – Unseaworthy
  Condition Must Be a Substantial Factor in
  the Injury for Liability
              Defenses
• Comparative Negligence
• No Assumption of Risk
• Primary Duty Rule
   Damages Under Jones Act
• Past and Future Lost Wages

• Past and Future Pain and Suffering

• No Loss of Consortium or Society

• No Punitive Damages
       When you receive an Injury
             Notification
•   Medical Treatment
•   Accident Report (See ISM Guidelines)
•   Statements may be admissible
•   Good Faith Investigation
•   Any doubt favors Seaman
         Seaman’s Release
• Burden of Proof of Validity on Employer
• Red Letter Release
• Take deposition to establish known waiver
  of rights
• Adequacy of Compensation is Test
        Wage Agreements
• Pay Wages and Arbitrate any claim
• Only after Injury
• Avoid Jury Trial
Jones Act Claim Status Check List
  • Determine Nature and Function of Vessel

  • Determine Percentage of Time Worker Spends on
    Vessel

  • Establish Type of Job Worker Doing

  • Check Compensation Status

  • Put Compensation Carrier on Notice

  • Mark File for Possible Lien
            Harbor Worker
• No Connection to the Vessel of Significant
  Nature or Duration

• A Vessel May or May Not be in Navigation

• Performs Tasks Which Benefit the Vessel
  but Do Not Assist in Performing its
  Function
   Negligence Under LHWCA
• Limited Duties Under the De Los Santos
  Decision:

    1.   “Turn Over” Duty
    2.   Active Negligence
    3.   Limited Duty to Intervene
   Employer As Vessel Owner
• Must Pay Compensation as Employer

• May be Liable for General Damages as
  Vessel Owner

• Only Liable for Negligence of Vessel
  Agents in Connection with Turn Over Duty,
  Active Control of Vessel or Duty to
  Intervene
    Damages Under LHWCA
• Past and Future Lost Wages

• Past and Future Pain and Suffering

• Loss of Consortium and Society

• Punitive Damages
               Passengers
• Broadly Defined as Anyone Aboard the Ship for
  Purposes Not Inimical to the Ship’s Business

• Often Called a Kermarec Claimant

• No Special Duty of Care: Reasonable Care
  Under the Circumstances

• Circumstances Can Require a Heightened Duty
  of Care
           Forum Clauses
• Enforceable if Forum Reasonably Related
  to the Transaction

• Must be Prominently Displayed on the
  Passenger Ticket

• Foreign Forum Not Necessarily Against
  Public Policy
II. What?
• Witnesses

• Documents

• Government Reports
              Witnesses
• Statements from Potentially Adverse
  Witnesses

• Memoranda of Interview from Managerial
  Employees
                 Spoliation
• Failure to Preserve Evidence

• Notice that an Item May be Relevant to Outcome
  of Litigation

• Possession, Custody or Control of that Item

• Use of Due Care to Preserve the Item

• Adverse Inference from its Non-Production
               Documents
• Logbooks               • Diaries

• Work Books             • Electronic Messages

• Operations/Employee    • Equipment Manuals
  Manuals
                         • Maintenance and
• Other Voyage/ Cargo/     Repair Records
  Passenger Records
              Contracts
• Indemnity and Hold Harmless Given to
  Assured

• Indemnity and Hold Harmless Given by
  Assured

• Policies on Which Assured is Named as
  an Additional Assured
                 Indemnity
• Tender Defense to Indemnitor

• Determine Policy Coverage for Indemnity Given
  By Assured

• Reserve Rights, If Necessary

• Indemnity From LHWCA Employer to Vessel
  Void
         Government Reports
• Required After Casualty by OSHA and Coast
  Guard and Possibly State Agencies

• Prepared by Assured Hopefully with
  Professional Assistance

• Time Limit for Filing

• Potential Government Investigation
     Government Investigation
• Use of Counsel During Witness Interviews

• Stress Assured’s Cooperation with Government
  Agents

• Avoid Obstruction of Justice or Impeding
  Investigation

• Learn from Martha Stewart
                  AUTHORIZATION FOR USE AND DISCLOSURE
                    OF PROTECTED HEALTH INFORMATION


TO: Doctor/Hospital

             Re: Claimant’s Name, Date of Birth and Social Security Number


1.   I authorize the use or disclosure of the above-named individual’s health information as described below:

2.   The following individual or organization is authorized to make the disclosure:

                              Doctor/Hospital


     including any member of Provider’s workforce or any business associate of provider is authorized to use or
     disclose the protected information.

3.   The type and amount of information to be used or disclosed is as follows:
     The protected health information that Provider will use or disclose includes my complete medical chart, including,
     but not limited to, my name, address, telephone number, social security number, insurers, payors, prior medical
     history, current medical status, diagnoses, x-rays, Cat Scans, MRIs, operative procedures, course of treatment,
     emergency room records, and all documentation and test results created thereby.

4.   Use or disclosure authorized hereunder is for the purpose of litigation, personal injury claims.

5.   I understand that the information in my health record may include information relating to sexually transmitted
     disease, acquired immunodeficiency syndrome (AIDS), or human immunodeficiency virus (HIV). It may also
     include information about behavioral or mental health services, and treatment for alcohol and drug abuse.
                  AUTHORIZATION FOR USE AND DISCLOSURE
                    OF PROTECTED HEALTH INFORMATION
                               CONTINUED

6.   This information may be disclosed to and used by the following individual or organization:

             John J. Walsh
             FREEHILL, HOGAN & MAHAR, LLP
             80 Pine Street, 24th Floor
             New York, NY 10005-1759

7.   Provider may not condition treatment, payment, enrollment or eligibility for benefits on whether I sign this
     authorization, except where the authorization is for research-related treatment, or solely for the creation of
     protected health information for disclosure to a third party.

8.   I understand I have the right to revoke this authorization at any time. I understand if I revoke this authorization I
     must do so in writing and present my written revocation to the health information management department. I
     understand the revocation will not apply to my insurance company when the law provides my insurer with the right
     to contest a claim under my policy.

9.   Unless otherwise revoked, this authorization will expire on the following date, event or condition: June 25, 2005.

10. I understand that authorizing the disclosure of this health information is voluntary. I can refuse to sign this
    authorization. I understand I may inspect or copy the information to be used or disclosed, as provided in CFR
    164.524. I understand any disclosure of information carries with it the potential for an unauthorized redisclosure
    and the information may not be protected by federal confidentiality rules.

								
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