Raymond Salis v. L & M Botruc Rental, Inc.

Filing

UNPUBLISHED OPINION FILED. [10-30068 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 11/24/2010 [10-30068]

Raymond Salis v. L & asBotruc Rental, Inc. CM e: 10-30068 Document: 00511283810

Page: 1 Date Filed: 11/03/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 3, 2010 N o . 10-30068 S u m m a r y Calendar Lyle W. Cayce Clerk

R A Y M O N D SALIS, P la in t if f ­ A p p e lla n t , v. L & M BOTRUC RENTAL, INC., D e fe n d a n t ­ A p p e lle e .

A p p e a l from the United States District Court for the Eastern District of Louisiana U S D C No. 2:09-cv-02811

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* R a y m o n d Salis (Salis), a seaman formerly employed by L&M Botruc R e n t a l, Inc. (L&M), filed suit against L&M asserting claims for personal injury c o m p e n s a tio n under the Jones Act as well as maintenance and cure. The United S t a te s District Court for the Eastern District of Louisiana granted summary ju d g m e n t in favor of L&M. Salis now appeals to this court. Finding no genuine is s u e as to any material fact, we affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 10-30068 Document: 00511283810 Page: 2 Date Filed: 11/03/2010

No. 10-30068 I L & M employed Salis as a deckhand aboard the ship M/V Botruc 19 (M/V B o t r u c ). During the course of his employment, Salis twice complained about n e c k and back pain. The first asserted injury occurred in March 2008, while S a lis restocked the water in the M/V Botruc's galley. The M/V Botruc's crew r e s t o c k e d this galley as a component of their duties. This involved moving six o n e -g a llo n jugs of water, held in boxes, from the cooler to the galley. Crew m e m b e r s entered the galley through a hatch, the base of which sat raised above t h e floor. The apex of the hatch was approximately five feet higher. Salis stated t h a t he moved water into the galley and, in so doing, injured himself. Although a t times two crew members would work together to move the water--thus a v o id in g the need for an individual to duck through the hatch while carrying the w a t e r -- S a lis was acting alone at the time of injury. He was placed on modified d u t y after notifying L&M, and sought treatment at the Patients First Clinic u p o n returning to shore. The medical records included a diagnosis of a strain, a n d stated that the strain "is resolving spontaneously without much in t e r v e n t io n ." S a lis then returned to active service. He states that he aggravated the in ju r y in July 2008, while transporting boxes of groceries from shore. The g r o c e r ie s were loaded by hand, though Salis asserts that a crane was available a t the facility and that there were previous occasions on which the crane had b e e n used for that purpose. The ship's captain, when deposed, stated that he c o u ld not recall any other crewman being injured in such a manner. As to both in c id e n t s , Salis admits that he was not specifically ordered as to the manner in w h ic h to move the goods. After the July 2008 injury, L&M sent Salis for evaluation upon returning t o port. Salis left town without evaluation, and instead returned home where he s o u g h t treatment at Patients First. At Patients First, however, Salis refused to 2

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No. 10-30068 r e t a k e a Coast Guard drug test, a prerequisite to the appointment. A previous t e s t had been overly diluted, and despite being told that refusal to take a test w a s tantamount to a failed test, Salis left without treatment. Salis instead sought treatment from Dr. Carr, beginning on August 8, 2 0 0 8 . Parties have submitted treatment records from four medical evaluations b y Carr. In the first appointment, Carr diagnosed Salis with a spinal injury, and n o tin g his improving health, recommended continuing "conservatively." She d ir e c t e d Salis to physical therapy and wrote that upon the therapy's conclusion, a n d Salis presenting as "symptom free," he would be cleared for "full duty." Carr a ls o scheduled a follow-up appointment, noting that Salis could be a candidate fo r surgical cervical disk replacement if the conservative treatment failed. At t h a t follow-up, on September 19, 2008, Carr observed improvement. Salis was s c h e d u le d for another follow-up appointment, and Carr noted that surgery r e m a in e d possible if the conservative therapy failed. Additionally, Carr cleared S a lis for a return to work with "zero" restrictions. Also in the record is a letter fr o m Salis' physical therapist, noting that on Salis' visit of September 18, 2008, S a lis reported a "100% functional improvement and 0/10 pain on the visual a n a lo g scale." Salis then returned to work on September 26, 2008. Subsequently, on N o v e m b e r 5, 2008, the Coast Guard suspended his license for failure to take a d r u g test. Lacking a Merchant Marine License, Salis could not work as a d e c k h a n d with L&M. Instead, since that time he has worked at his father's r e s t a u r a n t . Salis responded affirmatively in his deposition when asked if he w o u ld still be with L&M if not for the suspension of his license. One day before the Coast Guard suspended his license, Salis saw Carr. He c o m p la in e d about renewed pain since he began working again. Carr advised Salis of the risks of surgery, ranging from "worsening pain" to "coma, death, [or] p a r a ly s is ." Salis indicated that he "wishe[d] to think about the options." At a 3

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No. 10-30068 fo llo w -u p appointment in February 2009, Salis again indicated that he wished t o think about the options before committing to such a surgery. Salis stated in h is deposition that he has not seen a doctor for care stemming from this injury s in c e that time. The district court held that L&M was entitled to summary judgment on b o th the Jones Act negligence and maintenance and cure claims. It found no g e n u in e issues of material fact with respect to the negligence claim, observing t h a t Salis lacked evidence establishing a right to such recovery. It also held that L & M 's maintenance and cure obligations were terminated by Salis' pain-free r e t u r n to work, and that his current absence was due to his lack of a license. The court noted, however, that should Salis undergo surgery, he might, at that t im e , have a renewed claim for maintenance and cure. Salis now appeals to this c o u r t. II S a lis appeals from a final summary judgment rendered by the district c o u r t. Thus, jurisdiction over the appeal is properly vested in this court.1 This c o u r t reviews a district court's grant of summary judgment de novo, pursuant t o the same standards as the lower court.2 Summary judgment is appropriate w h e n "`the pleadings, the discovery and disclosure materials on file, and any a ffid a v it s show that there is no genuine issue as to any material fact and that t h e movant is entitled to judgment as a matter of law.'"3 A genuine issue of

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28 U.S.C. § 1291.

DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009) (citing Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 859-60 (5th Cir. 2004)).
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Id. (quoting FED. R. CIV. P. 56(c)(2)).

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No. 10-30068 m a t e r ia l fact exists when "`a reasonable jury could return a verdict for the nonm o v in g party.'" 4 A W e address Salis' Jones Act claim first. The Jones Act provides a cause o f action for seamen injured in the course of their employment.5 Here Salis a s s e r t s a negligence claim against L&M. In reviewing such a claim, we have p r e v io u s ly stated that while the plaintiff's burden of proving negligence is " lig h t ," a shipboard injury nonetheless "does not presuppose negligence." 6 T h e r e fo r e , to survive summary judgment Salis must demonstrate a genuine is s u e of material fact on which a reasonable jury could find that he surmounted t h is light, though real, burden. Although Salis' brief cites to authority for the proposition that negligence is a viable claim under the Jones Act, he fails to offer any explanation of how the p a r tic u la r facts of the instant case demonstrate negligence. We have previously h e ld that an employer's standard of care in a Jones Act action is "ordinary p r u d e n c e under the circumstances."7 Salis theorizes on appeal that L&M

n e g lig e n t ly failed to train him in "the safe methods of transporting water" into t h e galley--and makes no claim in this section of the appeal with respect to the g r o c e r y injury. As evidence, he notes that it would have been "safer" to pass the w a t e r through the hatch to another crewman. He speculates that this "could h a v e prevented" his injury.

Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th Cir. 2009) (quoting Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)).
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46 U.S.C. § 30104. Marvin v. Cent. Gulf Lines, Inc., 554 F.2d 1295, 1299 (5th Cir. 1977). Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997) (en banc).

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No. 10-30068 T h is is insufficient to demonstrate negligence. The mere fact of an injury d o e s not imply negligence.8 The testimony in the record from the ship's captain in d ic a te s that he could not recall another individual injuring himself in such a m a n n e r or reporting such an injury. The bare existence of another t r a n s p o r t a t io n method by which Salis' particular injury might not have occurred, w it h no additional citations or legal arguments, cannot demonstrate a lack of " o r d in a r y prudence"9 by L&M in allowing crewmen to transport the goods in that m a n n e r . Thus, Salis has failed to offer sufficient evidence to demonstrate a g e n u in e issue of material fact on his negligence claim, and summary judgment is appropriate. In the alternative, we note that the deficiencies of Salis' brief constitute w a iv e r of the negligence claim. As in the instant case, we have previously held t h a t a mere conclusory assertion unsupported by legal or factual analysis c o n s t it u t e s waiver of an issue on appeal.10 B W e now address Salis' claim for continuing maintenance and cure. In V a u g h a n v. Atkinson, the Supreme Court offered a succinct explanation of m a in t e n a n c e and cure: "Maintenance and cure is designed to provide a seaman w it h food and lodging when he becomes sick or injured in the ship's service." 11 T h e doctrine is liberally construed.1 2 Maintenance encompasses the seaman's liv in g expenses, while cure involves payment of medical or therapeutic

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Marvin, 554 F.2d at 1299. See Gautreaux, 107 F.3d at 338. N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003). 369 U.S. 527, 531 (1962). Id. at 531-32.

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No. 10-30068 t r e a t m e n t .13 A seaman's burden in proving these expenses is "`feather light.'"1 4 L a s tly , the Court has held that maintenance and cure continue until the seaman r e a c h e s "maximum medical recovery."1 5 We have previously stated that this o c c u r s "when it appears probable that further treatment will result in no b e t t e r m e n t of the seaman's condition."1 6 m e d ic a l matter.1 7 T h e district court's order only terminated these obligations at the present m o m e n t, but specifically added that it was not taking a position on maintenance a n d cure obligations should Salis seek surgery. Thus, Salis must logically be s e e k in g a restoration of his maintenance benefits along with a right to cure until h e either has the surgery or decides against it. M a in t e n a n c e and cure are not without limits. Maintenance is designed to p r o v id e financial assistance to a seaman who cannot work. Therefore, it is u n s u r p r is in g that the parties focus heavily on Salis' return to work. The mere fa c t that Salis returned to work, however, is not dispositive. Indeed, the Such a determination is a factual

S u p r e m e Court has held that it would defeat the doctrine's purpose if a seaman's r ig h t to maintenance was terminated by an economically motivated return to w o r k as a taxicab driver.1 8 In fact, we have held this is so even with respect to

Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979) (citing Farrell v. United States, 336 U.S. 511 (1949)). Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 588 (5th Cir. 2001) (quoting Yelverton v. Mobile Labs., Inc., 782 F.2d 555, 558 (5th Cir. 1986)).
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Vaughan, 369 U.S. at 531. Pelotto, 604 F.2d at 400 (citing Farrell, 336 U.S. 511). Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987). Vaughan, 369 U.S. at 533.

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No. 10-30068 a return to a seaman's work.1 9 Yet where we observed that a seaman was fit e n o u g h to return to work, but by his own volition had chosen to work for others, w e held the right to maintenance terminated.20 I n s t e a d , reaching maximum medical recovery is dispositive for

m a in t e n a n c e and cure claims.2 1 The instant parties do not dispute that Salis h a d no pain or symptoms at the time he returned to work. Carr cleared Salis for a return to work with "zero" restrictions, particularly relevant since in her initial n o te s she stated that she would do so only if Salis were symptom free. Reinforcing the conclusion that Salis had been cured, his physical therapist n o te d that Salis reported "100% functional improvement and 0/10 pain on the v is u a l analog scale." Though in some cases "maximum medical recovery" can be d iffic u lt to pinpoint,2 2 having no pain or symptoms and 100% functional im p r o v e m e n t qualifies. Thus, at the time Salis returned to work he had no right t o maintenance or cure. It is nonetheless possible that Salis could have become reinjured while w o r k in g , and thus with further recovery possible he would be eligible for m a in t e n a n c e and cure. Indeed, Salis now states that his pain has returned, and t h a t he is considering surgery. Yet he has not seen a doctor for his injury since F e b r u a r y 2009. Moreover, Salis readily admits in his brief that he "is not e n tit le d to maintenance for the days during which he was compensated for duty a s a deckhand." There is no dispute that Salis worked his tours until his license w a s suspended. In other words, Salis concedes that he had no right to

m a in t e n a n c e until his license was suspended by the Coast Guard. Indeed, he

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Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968, 969 (5th Cir. 1978). Dowdle v. Offshore Exp., Inc., 809 F.2d 259, 266 (5th Cir. 1987). Vaughan, 369 U.S. at 531. See Dowdle, 809 F.2d at 266.

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No. 10-30068 in d ic a te d he would still be at L&M if he had a license. Thus, Salis did not r e a c q u ir e a right to maintenance merely because the Coast Guard suspended his lic e n c e . Therefore, maintenance was properly terminated. Similarly, the suspension by the Coast Guard did not create a new right t o cure. Of course, the district court's order explicitly did not address whether S a lis would have a renewed right should he undergo the considered surgery. We d o not address it either. Salis does not, however, have a right to maintenance w h ile he continues to weigh his options with regard to the surgery. * * *

F in d in g the district court's grant of summary judgment proper, we A F F IR M .

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