Moe v. Aqueos Corp

Filing 38

MEMORANDUM RULING denying 28 Motion for Partial Summary Judgment. Signed by Magistrate Judge Patrick J Hanna on 11/24/2015. (crt,Williams, L)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
MICHAEL D. MOE

CIVIL ACTION NO. 6:14-cv-02881

VERSUS

MAGISTRATE JUDGE HANNA

AQUEOS CORPORATION

BY CONSENT OF THE PARTIES

MEMORANDUM RULING

Currently pending is the defendant’s motion for partial summary judgment
(Rec. Doc. 28) concerning the maintenance and cure claim asserted in the plaintiff’s
first supplemental and amending complaint for damages. The motion is opposed.
Oral argument was heard on November 24, 2015. Considering the evidence, the law,
and the arguments of the parties, and for the reasons fully explained below, the
motion is DENIED.
BACKGROUND
The plaintiff, Michael D. Moe, was employed by the defendant, Aqueos
Corporation, as a diver on May 24, 2013, when he was allegedly injured during the
course and scope of his work. He alleges that Aqueos was negligent and that its
vessel was unseaworthy.
According to his complaint, Mr. Moe went down in a diving bell into murky
water with little to no visibility. When he exited the bell on instruction from the dive

supervisor, his helmet allegedly struck a steel stabilizing wing that was affixed to the
bottom of the dive vessel, which caused immediate pain and left him stunned. He
was retrieved and taken to shore for emergency medical treatment.
Mr. Moe treated with Dr. Patrick Juneau, III, who performed an anterior
cervical discectomy with instrumented fusion at C5-6 and C6-7 on November 18,
2013. On August 7, 2014, Dr. Juneau found Mr. Moe to have reached maximum
medical improvement (“MMI”). Aqueos paid maintenance and cure from the date of
the accident through September 30, 2014. Mr. Moe was terminated by Aqueos on
October 1, 2014 (because Dr. Juneau limited him to light duty work). He then went
to work at Hobby Lobby as a stocker for the Christmas season. Then we went to
work for RT Electric as an electrician’s helper, and he was still working in that
capacity when he was deposed on March 27, 2015.
Mr. Moe’s pre-operative symptoms completely resolved following surgery, and
he did not see Dr. Juneau between August 14, 2014 and May 8, 2015. He returned
to Dr. Juneau in May 2015, however, complaining of neck pain and pain radiating
down his left arm. Dr. Juneau has recommended further surgery but Aqueos has not
authorized the surgery and has refused to resume maintenance and cure payments.
In his first supplemental and amending complaint for damages, Mr. Moe
alleged that, after Dr. Juneau found that he had reached MMI, he developed new
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symptoms1 that Dr. Juneau has related to the original injury. He seeks renewed
maintenance and cure payments as well as punitive damages for the defendant’s
failure to resume paying maintenance and cure. In the instant motion, Aqueos argues
that because Dr. Juneau declared Mr. Moe to have reached MMI, it has no obligation
to resume paying maintenance or cure. Aqueos seeks to have Mr. Moe’s claim for the
resumption of such benefits and his claim for punitive damages dismissed.
ANALYSIS
A.

THE SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate under Rule 56(a) of the Federal Rules of

Civil Procedure when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the lawsuit under the

1

In his first supplemental and amending complaint for damages, Mr. Moe alleged that
he experienced an “extreme exacerbation” of his psychiatric symptoms in May 2015, and that
Aqueos has refused to pay for psychiatric treatment. (Rec. Doc. 27 at 2). However, the parties did
not address Mr. Moe’s alleged psychiatric problems in their briefing, limiting the discussion to new
symptoms of neck and left arm pain.

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applicable governing law.2 A genuine issue of material fact exists if a reasonable jury
could render a verdict for the nonmoving party.3
The party seeking summary judgment has the initial responsibility of informing
the court of the basis for its motion and identifying those parts of the record that
demonstrate the absence of genuine issues of material fact.4 If the moving party
carries its initial burden, the burden shifts to the nonmoving party to demonstrate the
existence of a genuine issue of a material fact.5 All facts and inferences are construed
in the light most favorable to the nonmoving party.6
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by pointing out that
there is insufficient proof concerning an essential element of the nonmoving party's

2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009); Hamilton v. Segue Software, Inc., 232 F.3d 473, 477
(5th Cir. 2000).
3

Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 252; Hamilton v. Segue Software, Inc., 232 F.3d at 477.
4

Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007), citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
5

Washburn v. Harvey, 504 F.3d at 508.

6

Brumfield v. Hollins, 551 F.3d at 326, citing Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 587 (1986).

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claim.7 The motion should be granted if the nonmoving party cannot produce
evidence to support an essential element of its claim.8
B.

MAINTENANCE AND CURE
Maintenance and cure provides a seaman who is disabled by injury or illness

while in a ship's service with medical care and treatment and the means of
maintaining himself while he is recuperating.9 Maintenance is a daily stipend for
living expenses, and cure is the payment of medical expenses.10 Maintenance and
cure are owed by the shipowner without regard to the negligence of the employer or
the unseaworthiness of the ship.11 Maintenance and cure are owed until the seaman
reaches the point of maximum medical improvement.12 A seaman reaches maximum
medical improvement when it is probable that future treatment will not result in the

7

Norwegian Bulk Transport A/S v. International Marine Terminals Partnership, 520
F.3d 409, 412 (5th Cir. 2008), citing Celotex Corp. v. Catrett, 477 U.S. at 325.
8

Condrey v. Suntrust Bank of Ga., 431 F.3d 191, 197 (5th Cir. 2005).

9

Meche v. Doucet, 777 F.3d 237, 244 (5th Cir. 2015).

10

Bertram v. Freeport McMoran, Inc., 35 F.3d 1008, 1011-12 (5th Cir. 1994); Pelotto
v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979).
11

Pelotto v. L & N Towing Co., 604 F.2d at 400.

12

MNM Boats, Inc. v. Johnson, 248 F.3d 1139, 1140 (5th Cir. 2001) (per curiam)
(unpublished); Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987).

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improvement of his condition.13 Therefore, the maintenance and cure duty does not
extend to treatment that is only palliative in nature and “results in no betterment in
the claimant's condition.”14 Whether a seaman has reached MMI is a medical
determination requiring the advice of a physician.15 Any ambiguity or doubt
concerning a seaman’s entitlement to maintenance and cure must be resolved in the
seaman's favor.16
A shipowner is entitled to investigate and require corroboration before paying
a claim for maintenance and cure.17 If the payment of maintenance or cure is
wrongfully denied, a sliding scale of shipowner liability is applied. A shipowner who

13

Springborn v. Am. Commercial Barge Lines, Inc., 767 F.2d 89, 95 (5th Cir. 1985);
Pelotto v. L & N Towing Company, 604 F.2d at 400.
14

Johnston v. Tidewater Marine Service, 116 F.3d 478, 1997 WL 256881, at *2 (5th
Cir. 1997) (per curiam) (unpublished); Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.
1996); Pelotto v. L & N Towing Co., 604 F.2d at 400.
15

Breese v. AWI, Inc., 823 F.2d at 104; Tullos v. Resource Drilling, Inc., 750 F.2d 380,
388 (5 Cir. 1985).
th

16

Johnson v. Martin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990); Gaspard v. Taylor
Diving & Salvage Co., 649 F.2d 372, 374 n. 2 (5th Cir. 1981); Liner v. J. B. Talley & Co., 618 F.2d
327, 332 (5th Cir. 1980); Vaughan v. Atkinson, 369 U.S. 527, 532 (1962).
17

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005); MNM
Boats, Inc., v. Johnson, 248 F.3d at *1; Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir. 1995),
abrogated on other grounds, Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995),
abrogated by Atlantic Sounding Co., Inc. v. Townsend, __ U.S. ___, 129 S.Ct. 2561, 2575 (2009)
(“Because punitive damages have long been an accepted remedy under general maritime law, and
because nothing in the Jones Act altered this understanding, such damages for the willful and wanton
disregard of the maintenance and cure obligation should remain available in the appropriate case as
a matter of general maritime law.”).

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is in fact liable for maintenance and cure but who reasonably denied the payments
may be held liable only for the amount of maintenance and cure.18 If a shipowner
refuses to pay maintenance and cure without a reasonable defense, the shipowner
becomes liable for compensatory damages in addition to the maintenance and cure.19
If the shipowner rejects the claim in an arbitrary and capricious, or willful, callous,
and persistent manner, he becomes liable for punitive damages and attorneys’ fees as
well as maintenance and cure and compensatory damages.20
When there are conflicting diagnoses and prognoses from various physicians,
there is a question of fact to be determined by the trier of fact as to a plaintiff's
entitlement to maintenance and cure benefits as well as a question regarding whether
the employer's termination of maintenance and cure benefits was arbitrary or
capricious.21

18

Morales v. Garijak, Inc., 829 F.2d at 1358.

19

MNM Boats, Inc., v. Johnson, 248 F.3d at *1; Morales v. Garijak, Inc., 829 F.2d at

1358.
20

Chet Morrison Contractors, Inc., 666 F.3d 373, 382 (5th Cir. 2012); Morales v.
Garijak, Inc., 829 F.2d at 1358.
21

Tullos v. Resource Drilling, Inc., 750 F.2d at 389.

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C.

DID AQUEOS’S OBLIGATION END IN AUGUST 2014?
In this case, it is undisputed that the plaintiff sustained an injury while diving

from the defendant’s vessel, HOS MYSTIQUE, on May 24, 2013. Accordingly,
Aqueos had an obligation to pay maintenance and cure to the plaintiff until he
reached MMI. On August 7, 2014, the plaintiff’s treating physician, Dr. Juneau,
opined that the plaintiff had reached MMI. Accordingly, it was reasonable for the
defendant to stop paying maintenance and cure at that time. It is undisputed that
Aqueos paid maintenance and cure from the date of the accident through September
30, 2014.
An issue later arose as to whether a subsequent deterioration in the plaintiff’s
condition meant that the plaintiff was no longer at MMI and, consequently, whether
maintenance and cure payments should be resumed. Aqueos now takes the position
that its payment of maintenance and cure up to the date on which Dr. Juneau found
MMI was reached relieves it of any further maintenance and cure obligation. The
plaintiff’s position is that he is no longer at MMI and is entitled to renewed
maintenance and cure payments until MMI is again achieved. Support for both
positions can be found in Dr. Juneau’s deposition testimony and in his affidavit.
On November 18, 2013, Dr. Juneau performed an anterior cervical discectomy
with instrumented fusion at C5-6 and C6-7. (Rec. Doc. 30-3 at 8). Dr. Juneau
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explained during his deposition that two “cages” were placed in the disc spaces and
three screws were used – one each in C5, C6, and C7 – to attach a plate to the front
of the vertebral bodies. (Rec. Doc. 30-3 at 8-9). At the first post-operative visit on
December 12, 2013, all three screws and the plate were in good position, and Mr.
Moe’s arm pain was totally gone. (Rec. Doc. 30-3 at 10). At the next post-operative
visit on March 25, 2013, Dr. Juneau noted that there had been a little settling of the
plate and slight upward toggling of the caudal screw. (Rec. Doc. 30-3 at 12, 13). The
caudal screw is the one that was placed in C7. (Rec. Doc. 30-3 at 13). The toggling
of the caudal screw caused “the plate along the front part of the vertebral bodies to
slide down. . . just a couple of millimeters at the most.” (Rec. Doc. 30-3 at 13).
However, the screw was still totally within the bone. (Rec. Doc. 30-3 at 13, 14).
Despite the movement of the caudal screw and plate, Mr. Moe’s symptoms had totally
gone away. (Rec. Doc. 30-3 at 11,13).
On May 1, 2014, Dr. Juneau saw Mr. Moe again. Mr. Moe reported that, as he
was going to sit down, the back of his head hit a shelf, and he subsequently had some
recurrence of neck and left arm pain since then. (Rec. Doc. 30-3 at 16). But x-rays
showed no change in the position of the plate or screws. (Rec. Doc. 30-3 at 16-17).

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On August 7, 2014, Dr. Juneau declared Mr. Moe to be at MMI, permanently
restricted to light duty work, with a ten percent permanent partial physical impairment
of the whole body, and should not engage in any overhead work. (Rec. Doc. 30-3 at
18-19).
X-rays taken on August 14, 2014 again showed no movement of the plate or
screws. (Rec. Doc. 30-3 at 22-23). Also, the pain from hitting the shelf had resolved.
(Rec. Doc. 30-3 at 23-24).
Dr. Juneau did not see Mr. Moe between August 14, 2014 and May 8, 2015.
Mr. Moe returned to Dr. Juneau on May 8, 2015 and complained of neck pain
and left arm pain. (Rec. Doc. 30-3 at 24-25). Dr. Juneau stated that, “for the very
first time post-operatively,” Mr. Moe “was having pain radiating down the left arm
in a classical nerve root type history pattern.” (Rec. Doc. 30-3 at 26). X-rays showed
a slight change in the angle of the caudal screw although it remained fully within the
vertebral body, and the movement of the screw had caused the plate to migrate down
about one millimeter but it was still flush against the bone. (Rec. Doc. 30-3 at 25-26).
In Dr. Juneau’s opinion, it would be unlikely for the screw to move, after having been
stable for so long, without some force like a bump on the head, coughing, or dry
heaving that occurred after August 14, 2014 but before May 8, 2015. (Rec. Doc. 30-3
at 28-29). “[F]or it to just toggle without any – any sort of added force would be
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unlikely.” (Rec. Doc. 30-3 at 41). But he also stated that it does not take an acute
traumatic event for movement to occur. (Rec. Doc. 30-3 at 27). Dr. Juneau stated
that working as an electrician’s helper could have precipitated Mr. Moe’s neck and
arm pain. (Rec. Doc. 30-3 at 32). Mr. Moe told Dr. Juneau that the new pain had
come on gradually over a six week period (Rec. Doc. 30-3 at 48), and Dr. Juneau
stated that activities of daily living like working, coughing, or bending at various
angles could trigger subsidence of the plate and screw. (Rec. Doc. 30-3 at 48).
An MRI taken on June 5, 2015 showed “a relatively nice decompression of the
spinal cord at C5-6 and C6-7.” (Rec. Doc. 30-3 at 34). It also showed some slight
foraminal stenosis or narrowing that Dr. Juneau explained could be addressed by
placing rods from C4 to C7 to stabilize the spine even further and prevent the caudal
screw from moving any more. (Rec. Doc. 30-3 at 35). However, Dr. Juneau also said
that he was not “pushing” Mr. Moe to have this surgery. “If he is in intractable pain
with neck and left arm pain, it just doesn’t get better, that would be certainly a
legitimate option for him.” (Rec. Doc. 30-3 at 35). But if “he’s just had a little flare
up of pain for a few weeks” that diminishes over time and with anti-inflammatory
medications, the surgery is not necessary. (Rec. Doc. 30-3 at 35-37, 44).
As to whether the pain of May 2015 relates back to the original diving
accident, Dr. Juneau’s opinion can be interpreted two ways – as the parties have done
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in their briefing. He said that it relates back because the screw would not be there but
for the diving accident (Rec. Doc. 30-3 at 37-38, 42), but he also said it is related to
something that occurred between August 2014 and May 2015 although he saw no
evidence of new trauma (Rec. Doc. 30-3 at 28-29, 38, 43-44).
Dr. Juneau again saw Moe on June 23, 2015. Following that visit, he
recommended bilateral decompressive laminectomy with placement of lateral mass
screws at C4, C5, C6, and C7. (Rec. Doc. 30-3 at 74).
The plaintiff submitted Dr. Juneau’s affidavit, dated October 15, 2015, in
which he said this:
The imaging studies and clinical examinations which I
conducted in 2015 demonstrated to me that the screw has
began to move again and therefore the surgical solution
which I thought was adequate for Mr. Moe, the placement
of the plate and screws, has now become unstable.
Accordingly, my basis for concluding on August 7, 2014
that Mr. Moe was at maximum medical improvement no
longer exists from a medical standpoint, and, in my
opinion, it is necessary to perform the surgery which I
recommended. . . . . I believe that the performance of this
surgery will improve Mr. Moe’s underlying condition and
his function, and will eventually result in him reaching
maximum medical improvement again, provided we can
stabilize his cervical spine. (Rec. Doc. 30-3 at 58-59).
Dr. Juneau also said: “As further stated in my deposition, it is my medical
opinion that the treatment which I have recommended is directly related to the initial

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injury experienced by Mr. Moe on May 24, 2013 during his employment with Aqueos
Diving.” (Rec. Doc. 30-3 at 59).
Dr. Juneau’s conclusion that the instability of the fusion discovered in May
2015 is related to the original injury appears to be based on the history he received
from the plaintiff. In his affidavit, Dr. Juneau said: “According to the history given
by Mr. Moe and according to all of the x-rays and other imaging studies done up to
this time, I have found no evidence whatsoever of any significant intervening trauma
between Mr. Moe’s release by me on August 7, 2014 and the date he reported with
a gradual return of radicular symptoms when I saw him on May 8, 2015.” (Rec. Doc.
30-3 at 58). Dr. Juneau was aware of no such evidence, and none has been presented
to this Court. That is not to say, however, that such evidence might exist and might
be presented at trial.
At this stage of the litigation, with a motion for partial summary judgment
before this Court, all facts and inferences must be construed in the light most
favorable to the nonmoving party. Since the plaintiff is the nonmoving party, all
inferences must be drawn in his favor. Additionally, any doubts or ambiguities
concerning Aqueos’s maintenance and cure obligation must be resolved in favor of
the seaman. Complying with these principles and with an absence of evidence of an
intervening cause for the plaintiff’s new symptoms, this Court is required to resolve
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the parties’ dispute in the plaintiff’s favor. Accordingly, Aqueos’s motion for
summary judgment with regard to Mr. Moe’s claim for maintenance and cure will be
denied.
As noted previously, a shipowner may investigate and require corroboration
of a maintenance and cure claim before commencing payments. If the shipowner
unreasonably rejects the claim after investigating it, he is liable for compensatory
damages, and if the shipowner's rejection of a maintenance and cure claim is arbitrary
and capricious, the shipowner is liable for punitive damages.
The evidence in the record does not demonstrate that Aqueos unreasonably,
arbitrarily, capriciously, or callously refused to pay maintenance and cure after Dr.
Juneau declared that the plaintiff reached MMI. Similarly, there is no evidence that
its decision not to resume paying maintenance and cure was based on bad faith.
However, having found that the relevant standard of review requires this Court to
construe all inferences in favor of the nonmoving party and consequently to deny
Aqueos’s motion, this Court will pretermit further discussion of the punitive damages
issue at this time and preserve that issue for resolution at trial.
CONCLUSION
For the reasons explained above, defendant Aqueos Corporation’s motion for
partial summary judgment with regard to the maintenance and cure claims first
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asserted in the plaintiff’s first supplemental and amending complaint for damages
(Rec. Doc. 28) is DENIED.
Signed at Lafayette, Louisiana on November 24, 2015.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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