Wimberly v. Harvey Gulf International Marine, LLC

Filing 46

ORDER AND REASONS granting in part and denying in part 24 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARTIN WIMBERLY

CIVIL ACTION

VERSUS

NO. 14-1208

HARVEY GULF INTERNATIONAL
MARINE, LLC

SECTION "B"(5)

ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment
pursuant to Fed. R. Civ. P. 56 by Harvey Gulf International
Marine, LLC.

(“Harvey Gulf”).1 Plaintiff filed a response in

opposition.2 Defendant then filed a reply in further support of
the Motion for Partial Summary Judgment, to which the Plaintiff
filed

a

Sur-Reply

in

opposition.3

Accordingly,

and

for

the

reasons enumerated below,
IT IS ORDERED that Defendant’s Motion for Partial Summary
Judgment pursuant to Fed. R. Civ. P. 56 is GRANTED in part and
DENIED in part.

Cause of Action and Facts of Case:
This action arises under 46 U.S.C. § 30104, the Jones Act,
and

the

General

(“Wimberly”)

1
2
3
4

Rec.
Rec.
Rec.
Rec.

Doc.
Doc.
Doc.
Doc.

No.
No.
No.
No.

was

Maritime

Laws.4

employed

24
25
27; Rec. Doc. No. 29-1
1 at 1.

by

Plaintiff
Defendant,

Martin

Wimberly

Harvey

Gulf

International Marine, LLC.(“Harvey Gulf”),

upon Harvey Gulf’s

acquisition of Wimberly’s former employer Abdon Callies.5
In order to be hired by Abdon Callais in January, 2013,
Wimberly

submitted

to

a

medical

questionnaire,

physical

examination, and physical capacity test.6 Wimberly was required
to answer all questions in the questionnaire truthfully, and
failure to do so would result in termination and forfeiture of
maintenance and cure as stated on the form.7 In his medical
questionnaire for Abdon Callais, Wimberly circled “N” for No
when asked if he “currently ha[d] the following symptoms or have
significantly in the past” for: injured back/back pain, injured
neck/neck pain, back surgery/injury, recurrent neck/back pain,
and

Sciatica

or

nerve

pain.8

Wimberly

then

passed

both

the

physical exam and functional capacity exam, which required him
to perform various tasks lifting fifty pounds, and the physical
examination.9
Upon purchasing Abdon Callais, Harvey Gulf hired Wimberly,
and on November 19, 2013, required him to fill out a post-hire
medical questionnaire.10 In light of Abdon Callais’s prior forms
being

aligned

with

Harvey

Gulf’s

policies,

the

post-hire

questionnaire was the only required medical documentation from
5

Rec. doc. No. 24-12 at 1; Rec. Doc. No. 25-1 at 1
Rec. Doc. No. 24-2 at 86; Rec. Doc. No. 25-3 at 6-7; Rec. Doc. No. 25-4
7
Rec. Doc. No. 204-2 at 86
8
Rec. Doc. No. 24-2 at 86
9
Rec. Doc. No. 25-3 at 7; Rec. Doc. No. 25-2
10
Rec. Doc. No. 25-4
6

2

Harvey Gulf.11 Harvey Gulf’s questionnaire provided that “[f]alse
or

incomplete

answers

will

result

termination [from employment.]”

in

disqualification

or

In the questionnaire, Wimberly

marked that he had never been diagnosed with or experienced back
and neck trouble.12 However, he responded affirmatively that he
experienced

“frequent

or

occasional

back

pain[.]”13

The

questionnaire also required him to explain in writing if he
responded “yes” to the back pain question, which he failed to
do.14
On approximately January 2, 2014, Wimberly worked aboard
the M/V HARVEY SAINT, when he suffered severe and excruciating
injuries

to

allegedly
Defendant,

his

back,

a

result

as
its

neck

employees

of

and

other

negligence

and/or

the

parts
on

the

of

his

body,

part

of

the

unseaworthiness

of

the

vessel.15 According to Wimberly, the injury occurred in his lower
back while throwing a water-logged mooring line from the vessel
to a ballast onshore to tie up the ship at a Galveston fuel
dock.
On May 28, 2014, Wimberly brought this suit against Harvey
Gulf.16 Wimberly alleged claims of negligence, unseaworthiness,
and maintenance and cure benefits for the injuries incurred and
11
12
13
14
15
16

Rec.
Rec.
Rec.
Rec.
Rec.
Rec.

Doc.
Doc.
Doc.
Doc.
Doc.
Doc.

No.
No.
No.
No.
No.
No.

24-6
25-4
25-4
25-4
20
1

at
at
at
at

1
3
4-5
6

3

their

resulting

damages,

expenses.17

punitive

damages,

Further,
and

he

claimed

attorney’s

fees

compensatory
for

alleged

failure to pay maintenance and cure benefits.18 On March 10th,
2015, Harvey Gulf moved the Court for partial summary judgment
arguing that Wimberly was unable to establish elements necessary
to the claims of negligence, unseaworthiness, and failure to pay
maintenance and cure benefits.19 The Court granted in part and
denied

in

judgment,

part

Harvey

granting

Gulf’s

summary

motion

judgment

on

for

partial

Wimberly’s

summary

claim

that

Harvey Gulf failed to pay maintenance and cure benefits.20
On August 4th, 2015, Harvey Gulf filed the instant motion
for partial summary judgment on Wimberly’s claim for maintenance
and cure benefits, urging that because Wimberly misrepresented
his past medical history with respect to issues regarding his
neck,

back,

and

history

of

depression,

his

claims

for

maintenance and cure benefits should be dismissed on the basis
of

the

McCorpen

defense.21

The

Court

now

reviews

the

facts,

contentions, and the law with respect to the Motion for Partial
Summary Judgment.

17
18
19
20
21

Rec.
Rec.
Rec.
Rec.
Rec.

Doc.
Doc.
Doc.
Doc.
Doc.

No.
No.
No.
No.
No.

1 at 2
1 at 2-3
15 at 1
20 at 1
24

4

Law and Analysis:
I. Standard of Review
Summary

Judgment

is

warranted

when

“the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits show that there is no genuine issue
of material fact and the movant is entitled to judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Fed.R.Civ.P. 56(c). A genuine issue of material fact
exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). To determine if a party
is entitled to summary judgment, the Court views the facts in a
light most favorable to the non-moving party. Coleman v. Dennis,
115 F.3d 524, 533 (5th Cir. 1997). The Court will consider all
the evidence but will avoid “making credibility determinations
or weighing the evidence.” Turner v. Baylor Richardson Medical
Center,

476

F.3d

337,

333

(5th

Cir.

2007)(citing

Reeves

v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). To
defeat summary judgment, conclusory allegations, unsubstantiated
assertions, or “only a scintilla of evidence” will not suffice.
Id. (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994)).
The initial burden rests upon the moving party to inform
the court of the basis for the motion and the portion of the
5

record which reflect the absence of a genuine issue of material
fact. Celotex, 477 U.S. at 332. If the moving party meets their
initial burden, the burden is then shifted to the non-moving
party

to

offer

evidence

and

specific

facts

showing

that

a

genuine issue of material fact exists. Celtic Marine Corp. V.
James C. Justice Companies, Inc., 760 F.3d 477, 481 (5th Cir.
1974).
II. Analysis
Harvey Gulf contends that because Wimberly concealed and
misrepresented material medical facts pertaining to his history
of

back

pain,

neck

pain,

and

depression,

and

is

therefore

precluded from receiving maintenance and cure benefits pursuant
to McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548-49
(5th Cir. 1968).22 A vessel owner is required by law to provide
maintenance and cure for seamen aboard their vessel who are
injured or fall ill. Lewis v. Lewis & Clark Marine Inc., 531
U.S. 438, 441 (2001). This requirement is fulfilled by providing
food, lodging, and medical services until the seaman reaches
maximum recovery, as determined by a physician, from the injury
or

ailment

incurred

while

the

seaman

was

in

service

of

the

vessel. Lewis, 531 U.S. at 441; see also Vella v. Ford Motor
Co., 421 U.S. 1, 4 (1975).

22

Rec. Doc. No. 24-1 at 1

6

The

U.S.

Fifth

Circuit

Court

of

Appeals

in

McCorpen,

determined that an employer’s obligation of maintenance and cure
is eliminated if a seamen intentionally conceals or fails to
disclose past illness or injury to an employer who required the
seamen to submit a pre-hiring medical examination or interview.
McCorpen, 396 F.2d at 548-49.
The U.S. Fifth Circuit set forth three elements an employer
or shipowner must prove to establish a McCorpen defense: (1) the
seaman intentionally misrepresented or concealed facts, (2) the
omitted facts were material to the employer’s hiring decision,
(3) a causal connection between the prior injury or ailment and
the present injury in the complaint. Id.
Concealment
Harvey

Gulf

asserts

that

because

Wimberly

(1)

did

not

circle “Y” for yes in back pain and neck pain sections of the
Abdon Callais pre-hire medical questionnaire, (2) did not check
yes to the questions on back and neck trouble in the Harvey Gulf
post-hire medical questionnaire, and (3) did not further explain
as instructed his affirmative answer to the Harvey Gulf posthire medical questionnaire’s question about experiencing back
pain,

Wimberly

intentionally

concealed

prior

medical

thereby forfeiting his right to maintenance and cure.23

23

Rec. Doc. No. 24-1.

7

facts

The Fifth Circuit in McCorpen held, “where the shipowner
requires a seaman to submit to a pre-hiring medical examination
or

interview

conceals
plainly

and

the

material
desired,

seaman

medical
then

intentionally

facts,

he

is

the

not

misrepresents

disclosure

entitled

to

or

of

which

is

an

award

of

maintenance and cure.” Id. at 549. The intentional concealment
prong

of

inquiry

the
where

McCorpen
the

defense

employer

is

“need

an

“essentially”

only

show

that

objective

the

seaman

‘[f]ail[ed] to disclose medical information in an interview or
questionnaire

that

is

obviously

designed

to

elicit

such

information’”.

Meche v. Doucet, 777 F.3d 237, 247 (5th Cir.

2015) (quoting Vitovich v. Ocean Rover O.N., No. 94-3507, 106
F.3d 411, 1997 WL 21205, at *3 (9th Cir. Jan. 14, 1997)); see
also Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 176
(5th Cir. 2005).
Furthermore, the Fifth Circuit established in Meche, when
an

employer

company’s
previously

buys

another

employees,
acquired

the

company

and

new

employer

employee

re-hires

medical

may

the

rely

forms

former

upon

because

the
“an

intervening asset sale does not automatically relieve a seaman
from

the

consequences

of

his

or

her

prior

intentional

concealment of material medical information.” Meche, 777 F.3d at
246. This rule only applies when a company purchases another and
retains the employees of the purchased business. Id.
8

Wimberly argues that because he answered yes to “[d]o you
have frequent or occasional back pain?[,]” he did not conceal
any prior disability and the McCorpen defense does not apply
here.24 Further, Wimberly argues that there is a genuine issue of
material fact that he even had a prior disabling illness or
injury with respect to his back and neck, because he passed
Abdon

Callais’s

functional

capacity

exam

and

physical

examination, experienced only insignificant back sprains in the
past

that

were

not

permanent,

and

worked

for

a

year

as

a

deckhand without incident.25 Additionaly, Wimberly argues that
this is not a Meche case because Harvey Gulf subjected him to
their own medical questionnaire, therby not relying upon Abdon
Callais’s forms.
In

regards

to

Harvey

Gulf’s

allegation

that

Wimberly

misrepresented his history of depression, the evidence clearly
contradicts
Wimberly’s

this
bout

allegation
of

depression

and
over

shows
the

full
death

disclosure
of

his

son

of
as

reflected in his explanation contained in Harvey Gulf’s medical
questionnaire.26 Thus, there is no merit to the allegation and
this Court will move on to the neck and back allegations.

24

Rec. Doc. No. 25.
Id.
26
See Rec. Doc. No. 25-4 at 6, Wimberly did not check “Yes” to having been
diagnosed with depression in the earlier section, however he fully described
the diagnosis in the explanation section when he stated “[a]fter son died
diagnosed with depression[.]” thereby fully disclosing the prior medical
history relating to his depression
25

9

The evidence, even viewed in a light most favorable to the
non-movant, does not support Wimberly’s contention that he did
not have recurring back and neck injuries or chronic disability.
The record reflects, in regards to his history of neck problems,
Wimberly himself related to Dr. Ferguson at Bert Fish Medical
Center in 2010 that he suffered from chronic neck pain due to
“degenerative joint disease in his neck where he suffers from
severe radiculopathy. He occasionally takes Lortab for flareups,
however he has not had a flareup in awhile.”27 Though he does not
complain of this issue in subsequent visits, Wimberly reported a
history of severe neck pain and even nerve issues in his neck to
his doctor.28 However, he failed to make this admission to his
employers.
Wimberly claims his back pain was always temporary thus did
not amount to “back trouble”.29 However, reviews of Wimberly’s
medical records reflect that in 2010 he reported to Bert Fish, a
history of chronic back problems, which he later attributed

to

an accidental fall from a ladder in 2007 or 2008.30 Between 20102012, he complained of various back pains and was even diagnosed

27

Rec. Doc. No. 24-2 at 63, Though Wimberly rightly contends that he did not
complain of neck pain on that occasion (Rec. Doc. No. 25-1 at 2), his own
telling of his medical history to his doctor reflects his own knowledge of
his past history of neck trouble.
28
See Rec. Doc. No. 24-2 at 63,66
29
Rec. Doc. No. 25-3 at 3; Rec. doc. No. 25 at 9
30
See Rec. Doc. No. 24-2 at 81, Wimberly notes the ladder fall was “at least
four to five years ago”; See Rec. Doc. No. 24-2 at 63-84.

10

with a vertebral fracture.31 In 2012, he complained of an injury
incurred while repairing a car and consistent pain from that
period that even warranted physical therapy, which he abandoned
and did not complete.32
Wimberly’s

back

problem

may

not

have

been

consistently

disabling, but even when viewed as a series of back strains the
argument fails. A history of pulled muscles and a sore back in
Brown v. Parker Drilling Co. amounted to “back trouble” in the
eyes of the Fifth Circuit. Brown v. Parker Drilling Offshore
Corp., 410 F.3d 166. 172 (5th Cir. 2005). The defendant in Brown
admitted his understanding that his problems with back sprains
and soreness constituted “back trouble” when he stated “back
trouble” was the reason behind a prior termination. Brown, 410
F.3d at 172-75. Here, Wimberly’s admissions to his doctor in his
medical

history

reflect

well

his

understanding

of

his

own

chronic back “trouble[.]” Albeit, only six months after being
prescribed

pain

killers

and

physical

therapy

for

lower

back

pain, he failed to relate such revealing medical history in his
Abdon Callais medical questionnaire.33 Harvey Gulf does overstate
the amount of visits where Wimberly complained of current back
and neck pain as pointed out by Wimberly’s memorandum, but there
is a clear history of back and neck trouble as evidenced in the
31
32
33

See Rec. Doc. No. 24-2 at 75,81,84,85
See Rec. Doc. No. 24-2 at 75,81,84,85
See Rec. Doc. No. 24-2 at 86

11

medical record. Therefore, there is no genuine issue of fact
that Wimberly suffered an injury which which was not disclosed
to Harvey Gulf and/or Abdon Callais
This Court need not conclusively determine whether this is
a

Meche

case

or

not.

The

Harvey

Gulf

post-hire

medical

questionnaire affords sufficient evidence to rule upon summary
judgment.

Failure

to

truthfully

answer

medical

questions

or

expound upon a condition when requested by the employer in a
medical

questionnaire

test

can

forfeit

a

seaman’s

right

to

maintenance and cure. See Lett v. Omega Protein, Inc., 487 F.
App’x 839, 848-49 (5th Cir. 2012) (holding that a seaman who was
treated

with

employment,

pain

pills

intentionally

for

neck

concealed

pain
a

two

months

disability

prior

when

he

to
was

responded “no” to the question about neck pain on his medical
form); Ladnier v. REC Marine Logistics, L.L.C., Civ. Action No.
14-1278,

2015

WL

3824382,

at

*3-4

(E.D.

La.

June

19,

2015)

(finding that a seaman intentionally concealed a disability when
he answered no to having injuries to certain body parts and yes
to

arthritis

without

further

explaining

answers

as

requested

when he was prior diagnosed with a shoulder impingement).
In the case at hand, Wimberly’s tepid admission of frequent
back pain without explanation and his denial of back and neck
trouble is similar to the plaintiff in Ladnier’s tepid admission
of

arthritis

absent

further

explanation
12

of

the

shoulder

diagnosis

or

answering

shoulder-related

injury

questions

truthfully. Despite a lengthy admission to his doctor of back
and

neck

declined

related
to

offer

problems
that

beginning

information

in

to

at

least

Harvey

Gulf

2006,
or

he

Abdon

Callais in light their specific inquiries. Furthermore, by not
reporting any back pain whatsoever to Abdon Callais only six
months after being treated extensively for and diagnosed with a
lower

back

strain

and

compression

fracture,

Wimberly

further

lends evidence of objective intent to conceal the information
from Harvey Gulf. However, Wimberly stated in his deposition
that

he

was

unaware

of

the

L1

compression

fracture

until

discovery during the instant suit.34 This is contradicted by the
medical records from Bert Fish Medical Center that describes
Wimberly’s relation of the diagnosis by the ER doctor of his
fracture and how the ER doctor told him it was likely an older
fracture to which he noted that he had an incident where he fell
from a ladder years ago which began some of his lower back
issues.35

While

this

Court

is

barred

from

making

credibility

determinations, the issue is not material in light that Wimberly
still concealed his prior history of back problems from Harvey
Gulf in a way that evinces objective intent to downplay and
conceal

his

injuries.

By

not

revealing

the

history

of

radiculopathy in his neck and history of back injuries, Wimberly
34
35

Rec. Doc. No. 24-2 at 31
Rec. Doc. No. 24-2 at 81

13

still meets the threshold for concealment of “back trouble” made
in Brown.
After review of the medical records and prior precedent,
there is no genuine issue of fact regarding the concealment
element. Harvey Gulf has carried its burden for summary judgment
on Wimberly’s misrepresentations of his neck and back conditions
but not his history of depression.
Materiality
The

second

defendant

to

prong

show

of

the

the

McCorpen

plaintiff’s

defense

requires

misrepresentations

the
were

material to Harvey Gulf’s hiring decision. See Brown v. Parker
Drilling

Offshore

Corp.,

410

F.3d

166,

171

(5th

Cir.

2005)

(citing McCorpen, 396 F.2d at 547).
In the case at hand, the Defendant clearly established this
element. Harvey Gulf and Abdon Callais asked a specific medical
question about applicants’ history of injury to the back and
neck, which, as reflected in declarations from Abdon Callais and
Harvey

Gulf

employees,

is

directly

related

to

the

duties

required of a deckhand.36 See Brown, 410 F.3d at 175 (holding
that

materiality

exists

where

employer

asks

specific

medical

questions related to physical ability to perform job duties).
Moreover,

both

unsworn

declarations

from

the

Human

Resources

Manager at Abdon Callais and Executive Vice President at Harvey
36

Rec. Doc. No. 24-6 at 2; Rec. Doc. No. 24-5 at 2

14

Gulf stated that they would have further

inquired about his

medical history before hiring Wimberly if he had disclosed more
information about his back and neck problems.37
Wimberly does not contest the materiality of the questions,
however he argues that Harvey Gulf ignored that Wimberly worked
for Abdon Callais for a year without incident and that he passed
Abdon Callais’s physical examination and physical capabilities
test.38 In Brown, the Fifth Circuit deemed the same argument
irrelevant where the plaintiff claimed materiality did not exist
because

he

worked

the

first

few

months

of

his

job

without

incident. Brown, 410 F.3d at 175. The fact that Wimberly worked
under

Abdon

Callais

and

Harvey

Gulf

for

a

year

before

the

accident and passed a physical capability test is irrelevant
because similar to the defendant in Brown, Harvey Gulf based its
hiring

decision

in

part

upon

whether

applicants

experienced

prior back and neck trouble, not their ability to “on the date
of their application, complete difficult manual labor tasks.”
See id. Therefore, there is no genuine issue of material fact as
to whether the questions posed to Wimberly inquiring about his
prior medical history were material.
Causal Connection
Harvey Gulf argues that a causal connection exists between
Wimberly’s
37
38

prior

injuries

and

Id.
Rec. Doc. No. 25-1 at 1-3

15

present

injuries

because

the

injuries

both

occurred

in

his

back

and

neck.

In

order

to

establish a McCorpen defense, the defense must demonstrate that
“a

causal

concealed

link
and

between
the

the

pre-existing

disability

incurred

disability
during

the

that

was

voyage.”

McCorpen, 396 F.2d at 549. The Fifth Circuit has held that the
present injury need not be “identical” to the previous injury,
nor must the previous injury be the “sole cause” to establish a
causal relationship. Brown, 410 F.3d at 176; Johnson v. Cenac
Towing, 599 F. Supp. 2d 721, 728-29 (E.D. La. March 2, 2009) (“a
successful McCorpen defendant need not submit any proof that the
plaintiff’s

omission

cause

the

injury.

Rather,

the

McCorpen

defense will succeed if the defendant can prove that the old
injury and the new injury affected the same body part”).
Moreover, the link between prior and present injuries does
not necessarily need to occur to the exact same vertebrae or
tissue but rather in the same location on the body. See Brown,
410

F.3d

at

176-77

(holding

that

causality

existed

where

plaintiff’s prior injury was a lumbar strain which sent him to
the ER and present injury was a herniated disc in the lumbar
region of the spine); Kathryn Rae Towing, Inc. v. Buras, Civ.
Action No. 11-2936, 2013 WL 85210, at *7 (E.D. La. Jan. 7, 2013)
(finding a causal link on summary judgment when “[w]hile the
precise lumbar vertebrae injured may not [have been] identical
to

Buras’s

previous

diagnoses,
16

Buras’s

complaints

as

Dr.

Shamsnia admitted were quite similar.”); Weatherford v. Nabors
Offshore Corp., Civ. Action No. 03-0478, 2004 WL 414948, at *3
(E.D. La. Mar. 3, 2004) (granting summary judgment upon finding
causality where plaintiff concealed prior injury to lower back
and instant injury claim included pain in the lower back).
The

record

reflects

that

Wimberly’s

present

back

injury

consists of “moderate degenerative disc disease and spondylosis
at the L4-5 and L5-S1 levels with central annular tear at both
levels . . . [and] chronic-appearing moderate T12 compression
frature[,]” in addition, an MRI showed “annular tear with disc
pathology

at

two

levels,

including

L5/S1[.]”39

Prior

to

this

injury, Wimberly has the following history of back problems:
back sprain40 in 2006 stemming from a fall off a ladder41, report
historic chronic back pain in September 2010 and December 201042,
complaints of lower back pain in January of 201243, symptoms of
back pain in May of 201244, and, a December 2011 ER trip and June
2012 doctor’s visit for lower back pain where he was diagnosed
with an L1 vertebral body wedge compression fracture of unknown

39

Rec. Doc. No. 24-9 at 5, “3/2014 MRI lumbar spine”; Rec. Doc. No. 24-8 at
12, dated April 16, 2014
41

Rec. Doc. No. 24-2 at 8, “Deposition of Martin Wimberly”
Rec. Doc. 24-2 at 64, “Bert Fish Medical Center. . . REVIEW OF SYSTEMS”
dated September 27, 2010; Rec. Doc. No. 24-2 at 66, “Bert Fish Medical
Center. . . REVIEW OF SYSTEMS”, dated December 10, 2010
43
Rec. Doc. 24-2 at 69, “Bert Fish Medical Center. . . Chief Complaint: Back
Pain”, dated January 3, 2012; Rec. Doc. No. 24-2, “Bert Fish Medical Center.
. . Primary Impression: Back Pain”, dated January 12, 2012.
44
Rec. Doc. No. 24-2 at 75 “Bert Fish Medical Center . . . Musculoskeletal
Symptoms Back Pain”, dated May 12, 2012.
42

17

age45 and low back sprain after an incident where “bending over,
he felt a pop”46
Wimberly contends that the prior issues with his back were
primarily

back

strains

causally

related

to

and

his

were

current

not

serious

disc

therefore

problems.47

While

not
the

compression fracture and the reports of back strains are not
“identical” to Wimberly’s current disc injury, the location of
his past issues of back pain and injuries coincide the previous
injuries to the lower back area.48 The prior compression fracture
and

muscle

sprains

need

not

be

the

sole

cause

of

the

disc

herniation to establish the causal link. See Brown, 410 at 176.
A causal relationship exists when the prior injury is located on
the same body part as the present injury. See Brown, 410 F.3d at
176; Spencer v. Hercules Offshore Inc., Civ. Action No. 13-4706,
2014 WL 1612440, at *4 (E.D. La. April 22, 2014).
In Brown, a seaman argued that causality was not present
where his prior injury was a lumbar strain and current injury
was

a

herniated

disc

in

the

same

area;

however,

the

Fifth

Circuit found no merit in his argument and held that because
both

injuries

were

to

the

same

46

area

of

the

lumbar

spine,

Rec. Doc. No. 24-2 at 75, “Bert Fish Medical Center. . . HISTORY OF PRESENT
ILLNESS”, dated June 24, 2012; Rec. Doc. No. 24-4
47
See Rec. Doc. No. 24-2 at 75,81.
48
See Rec. Doc. No. 24-2 at 75-79, Rec. Doc. No. 24-4, Rec. Doc. 24-9 at 5,
Present T12 compression fracture is vertebrae directly adjacent to prior L1
fracture, L4-5 and L5-S1 disc issues are both located in lower back; Rec.
Doc. No 24-8 at 8, Present disc indents at L1 is on the same L1 vertebrae
that was fractured

18

causality existed. Brown, 410 F.3d at 176. Similarly, Wimberly’s
prior

symptoms

and

diagnosis

of

back

sprain,

compression

fracture, and mild multilevel spondylosis49 were all located in
the lumbar area which is the same area as the current herniated
disc.50 Furthermore, Wimberly’s history of neck pain is not only
located in the same area as his present disc injuries in his
neck, but is related in the type of pain and areas of the neck
affected.51

This

is

reflected

in

his

own

complaint

to

Dr.

Ferguson at Bert Fish Medical when he reported a history of
degenerative

joint

disease

and

severe

radiculopathy

in

his

neck.52
Wimberly does not offer evidence to show a genuine issue of
the facts concerning the lumbar location of the prior injuries
or the prior injuries and issues in his neck. Therefore, Harvey
Gulf has carried their burden to show there is no genuine issue
of material fact and to satisfy summary judgment in regards to
the causality element of the McCorpen defense.
Conclusion
After review of the facts, record, and relevant law IT IS
ORDERD that the Defendant’s Motion for Partial Summary Judgment
pursuant

to

Fed.

R.

Civ.

P.

56

is

GRANTED

in

part

as

to

maintenance and cure for Plaintiff’s back and neck claims and
50
51
52

Rec. Doc. No. 25-5 at 15; Rec. Doc. No. 24-2 at 76
See Rec. Doc. No. 24-8 at 16; See Rec. Doc. No. 24-2 at 63
See Rec. Doc. No. 24-2 at 63

19

DENIED

in

part

as

to

maintenance

and

cure

for

Plaintiff’s

depression claim.

New Orleans, Louisiana, this 27th day of August, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

20