In the case of McKorpen v. Central Gulf Steamship Corporation, 544 F.3d 396 (5^th Cir. 1968) the Fifth Circuit of the United States Court of Appeals established what has now commonly been referred to as the McKorpen Defense. The McKorpen Defense applies to a seaman’s right to cure if he gets injured.

What is Cure and How Does It Differ From Land Based Workers’ Compensation Insurance?

If a seaman gets hurt they are not covered by workers’ compensation insurance. However, under American maritime jurisprudence and Admiralty Law, they are entitled to cure. The definition of cure is that it requires a ship owner to provide medical care, free of charge, to a seaman injured in the service of the ship, until the seaman has reached “maximum medical cure.” The concept of “maximum medical cure” is more extensive than the concept “maximum medical improvement.” The obligation to “cure” a seaman includes the obligation to provide him with medications and medical devices which improve his ability to function, even if they don’t “improve” his actual condition. They may include long term treatments that permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications. The duty of the maritime employer to pay cure is regardless of fault. In other words, if the seaman is 100% at fault for his injuries, he is still owed cure. Well…..that sounds like workers compensation….right? Not really and here are some differences: (1) if you were working at Kroger and you got hurt in the “course and scope of employment” you would receive medical care. If you did not receive medical care, you could sue the workers’ compensation carrier for bad faith (or beach of duty of good faith as it is called in some jurisdictions) and, if successful, recover, not only the unpaid medical but also mental anguish, injury to your credit damages and, in some states, punitive/exemplary damages. This is not true for a maritime employer failing to pay your cure in that you only have the right to sue for the amount of medical care they should have paid and you might recover attorneys’ fees. Thus, there is no legal “hammer” to hold over the maritime employer to do the right thing like there is in a land based injury; and (2) if the hypothetical Kroger worker hurt his back he would get medical care even if he had back injuries in the past and did not tell Kroger that in his job application. This is not true in the maritime world due to the McKorpen Defense for an injured mariner.

Case Law Analysis

McCorpen’s facts were fairly harmless. During Mr. McCorpen’s 20 years as a merchant mariner, he had never had lost any work from illnesses. However, he had a 15 year history of diabetes. He had been working as a crew member on the SS Green Lake and had underwent and passed a physical exam to sign on as a chief cook. At the physical exam, he was required to fill out a ‘Physical Examination Report & Record’. On the Report, he was asked questions and responded in the following manner:

(1) Question: Injuries:

Answer:back strain 1961

(2) QuestionIllness:

Answer: no

(3) QuestionSurgery:

Answer:no

Also, Mr. McCorpen affixed his signature to a statement reading, ‘I have never been injured, sick, or otherwise disabled except as stated above.’ At no time did he reveal to the examining doctor, or his staff, that he was a diabetic. He was approved for employment and sailed with the SS Green Lake from Galveston, Texas to New Jersey and then to the Persian Gulf. Near Iran, the heat in the galley where McCorpen worked, became extreme and he began seeing double. He was treated twice by a doctor in India and at the end of the voyage was treated at a public health facility in Galveston. The trial judge found that he was hospitalized for diabetes control with a diagnosis of diabetes mellitus and ‘chronic anemia, etiology undetermined.’ The McCorpen court first discussed the federal maritime law regarding the type of obligation an employer has to a seaman under federal maritime law to pay cure:

Maintenance and cure is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel. The ship owner’s obligation is deep-rooted in maritime law and is an incident or implied term of a contract for maritime employment. Maintenance may be awarded by courts even where the seaman has suffered from an illness pre-existing his employment, but there is a general principle that it will be denied where he knowingly or fraudulently conceals his illness from the ship owner. See Evans v. Blidberg Rothchild Co., 4th Cir.1967, 382 F.2d 637; Burkert v. Weyerhaeuser Steamship Co., 9th Cir.1965, 350 F.2d 826; Annot., 3 A.L.R.3d 1082 (1965). (Emphasis Supplied). McCorpen at 548.

It is important that the reader of this paper understand the duty to pay cure[1] is a contractual duty. Hence, regardless of whether the seaman caused his injury or illness, the “contractual nature’ of the relationship between the employer and the employee is the reason for payment. Recognizing that the duty to pay is contractual, the McCorpen court began to dissect when this contractual duty was negated.

In cases involving a pre-existing illness or other disability, the courts have made a distinction between nondisclosure and concealment. Where the ship owner does not require a pre-employment medical examination or interview, the rule is that a seaman must disclose a past illness or injury only when in his own opinion the ship owner would consider it a matter of importance. If the ship owner is unable to persuade the court or jury that the seaman could reasonably be expected to have considered his medical history a matter of importance, he will be liable for maintenance. He will be liable if it is found that there existed reasonable grounds for the seaman’s good-faith belief that he was fit for duty. (Citations Omitted). On the other hand, where the ship owner requires a seaman to submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure. (Citations Omitted). Of course, the defense that a seaman knowingly concealed material medical information will not prevail unless there is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage. (Citation Omitted). McCorpen at 548-9.

Then the McCorpen court addressed some past exceptions to the denial of maintenance such as (1) where the seaman was “so ignorant” that it could not be said that they “knowingly” concealed medical facts or (2) where the seaman barely understood English and could not be held responsible for a misrepresentation or failure to disclose simply because they did not understand the questions.

Post-McCorpen Decisions and Differences in the Federal Circuits

Since McCorpen, there have been numerous cases involving different fact situations resulting in different outcomes. There are a total of eleven federal circuits in the United States Federal Court System. As a geographical matter, the circuits that deal with maritime/admiralty issues the most often are the Second Circuit (New York, Connecticut and Vermont), the Third Circuit (New Jersey, Delaware and Pennsylvania), Fifth Circuit (Texas, Louisiana and Mississippi[2]), the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada and Oregon) and the Eleventh Circuit (Florida, Georgia and Alabama). This is not to say that the other remaining Circuits do not address and render decisions regarding the Jones Act, Admiralty/Maritime law as they, in fact, do; it’s just that these Circuits are not as prominent in Admiralty Law and the decisions are not as numerous in the area of Admiralty/Maritime Law.

It was, in fact, an Eighth Circuit opinion that summarized the law McCorpen throughout the circuits. In Wactor v. Spartan Transportation Corporation, 27 F. 3^rd 347 (8^th Cir. 1972), the Eight Circuit adopted the McCorpen decision within the Eighth Circuit and pointed out that the Fourth Circuit, Seventh Circuit and Ninth Circuits have also adopted McCorpen in their Circuits. Wactor at 352.

To date, the only circuit not to adopt the harshness of McCorpen is the Second Circuit. In Sammon v. Central Gulf S.S. Corp., 442 F.2d 1028, 1971 A.M.C. 1113 (2d Cir.), cert. denied, 404 U.S. 881, 92 S. Ct. 202, 30 L. Ed. 2d 162 (1971), it was held that a denial of cure can only occur if it is fraudulent and stated that “it is fraudulent only if the seaman knows or reasonably should know that the concealed condition is relevant.”

The current law as developed over the years since McCorpen, except in the Second Circuit as discussed in Sammon, is that an injured seaman can be deprived cure if:

(1) the seaman intentionally misrepresented or concealed medical facts;

(2) that the undisclosed facts were material to the maritime employer’s decision to hire the seaman; and

(3) that a connection exists between the withheld information and the injury complained of in the litigation.

Can a McCorpen Finding Also Affect a Jones Act Claim?

Unfortunately, at least in the Fifth Circuit, it does appear that a Jones Act claim can be affected by a McCorpen finding by the trial judge or jury. In a fairly recent case styled Johnson v. Cenac Towing, 544 F.3d 296 (5^th Cir. September 24, 2008), the Fifth Circuit addressed the following:

Leroy Johnson sustained injuries while working as a seaman for Cenac Towing, Inc. He sued Cenac in federal court for negligence under the Jones Act, unseaworthiness, and maintenance and cure benefits. Following a bench trial, the district court denied maintenance and cure because Johnson willfully concealed his preexisting physical problems from Cenac, but the court awarded him damages under the Jones Act and Cenac appealed. Johnson’s answers on his job applications and questionnaires were not truthful. Before he applied to work for Cenac, he had been twice injured while working for other offshore companies. In 1994, Johnson injured his neck and back in an on-the-job accident, which left him disabled for at least ten months. He underwent neck surgery almost a year later as a result of the accident. In 2001, Johnson injured his back again in an on-the-job accident and was disabled for about thirteen months. He received steroid injections to treat his back injury and experienced other ongoing urological problems as a result of the accident. After each accident, Johnson obtained compensation benefits, sued his employer, and collected damages. He intentionally concealed all of these prior accidents, injuries, and claims from Cenac during the hiring process. The doctor who administered Johnson’s two physical examinations on behalf of Cenac stated that had he known of Johnson’s prior work-related accidents, he would not have approved him for employment because of the “possibility of further endangering himself in any kind of way … in this case his neck and his back and to try to protect others around him.”

On December 14, 2005, Johnson injured his back again while working as a tankerman aboard a Cenac vessel that was towing barges near Mobile, Alabama. Johnson and co-worker Louis Celestine were carrying a 175-pound cross-over hose aboard one of the barges when Celestine tripped and dropped his part of the load. Suddenly bearing a heavier weight, Johnson exclaimed that he had hurt his back. He immediately reported the accident and his injury to the crew.

For several months, Johnson was treated for low back pain and urological problems. The district court found that these injuries resulted from an aggravation of Johnson’s pre-existing back condition stemming from his 2001 accident. Johnson incurred $38,095.80 in medical expenses. Some of the expenses inexplicably were paid by the Blue Cross Blue Shield group health insurance plan that Cenac offers to cover only employees’ non-work-related injuries. Cenac pays one hundred percent of its employees’ insurance premiums for the plan.

The Cenac case is a prime example of the old adage that ‘bad facts make bad law’. It is quite obvious that from reading the facts set forth above that Mr. Johnson was less (very far less) than honest in disclosing his prior medical problems. It is well accepted that the Fifth Circuit is very conservative when it comes to protecting the rights of injured seaman; and, with the facts of the Cenac case presented to them, it gave them the perfect opportunity to extend the legal boundaries of their McCorpen Defense outside the legal confines of maintenance and cure to invade into the time honored and court protected rights of seaman under the Jones Act; and that is exactly what happened. Cenac being “The Perfect storm” for the Fifth Circuit, most of its full opinion is worth reading. The pertinent parts of the Courts’ analysis are set forth below:

Although the McCorpen rule is not applicable to a Jones Act negligence claim, contributory negligence is an affirmative defense that diminishes recovery in proportion to the seaman’s fault. 45 U.S.C. § 53; see Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 802, 166 L.Ed.2d 638 (2007). To establish that a seaman is contributorily negligent, an employer must prove negligence and causation. See Sorrell, 127 S.Ct. at 807; see also Gautreaux, 107 F.3d at 338.

A seaman is negligent if he fails to act with ordinary prudence under the circumstances. See Gautreaux, 107 F.3d at 339. “The circumstances of a seaman’s employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard, therefore, [in] a Jones Act negligence action becomes one of the reasonable seaman in like circumstances.” Id. (emphasis in original). The standard of causation in Jones Act cases is not demanding.(Footnote Omitted) See, e.g., Gautreaux, 107 F.3d at 335 (“[T]he Supreme Court [has] used the term ‘slightest’ to describe the reduced standard of causation between the employer’s negligence and the employee’s injury in FELA § 51 cases.”). To establish causation, an employer must show that a seaman’s negligence “played any part, even the slightest, in producing the injury.” Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.1982) (citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)). See also Sorrell, 127 S.Ct. at 802 (holding that the same causation standard applies to employer negligence and employee contributory negligence in FELA cases). Even under the Jones Act, however, a party must establish more than mere “but for” causation. See Gavagan v. United States, 955 F.2d 1016, 1019-20 (5th Cir.1992) (“The negligence must be a ‘legal cause’ of the injury.”).

The district court held that Johnson was not contributorily negligent for willfully concealing his previous injuries during Cenac’s employment application process. The court cited Brown v. Parker Drilling Offshore Corp., supra, as the Fifth Circuit’s confirmation “that the existence of the McCorpen defense does not automatically taint a Jones Act claim.” The court then rejected Cenac’s “argument that if not for Johnson’s misrepresentations, this accident would not have happened.” It found that the “condition of Johnson’s back and neck did not contribute to causing the accident,” and the fact that Johnson sustained on-the-job injuries three years before his December 2005 accident did not make him contributorily negligent.

In a bench tried admiralty case, a district court’s findings concerning negligence and causation are findings of fact reviewable by this court only for clear error. See Gavagan, 955 F.2d at 1019. We entertain a strong presumption that the court’s findings must be sustained even though this court might have weighed the evidence differently. This said, the court’s decision on contributory negligence, which is fully paraphrased above, is hard to square with its recitation of facts elsewhere in the opinion. The district court found that Johnson’s low-back pain caused by the 2005 accident was “an aggravation of a pre-existing back condition stemming from his 2001 maritime accident.” Both injuries, as the court noted, affected his L5-S1 intervertebral disc. Going further, in its discussion of the McCorpen defense, the court found a clear connection, a “causal link,” between Johnson’s pre-employment misrepresentations to Cenac and his current injury.

It is likely true, as the court found, that Johnson’s weakened back did not cause Celestine to drop the 175-pound hose they were both carrying. But it also seems likely that Johnson would never have been employed by Cenac had he revealed the previous injuries, and, having misrepresented himself onto the payroll, he set himself up for the sort of aggravating injury found by the district court. Both this court and the Supreme Court have previously considered the contributory negligence ramifications of pre-employment deception. In Still, the Supreme Court reversed and remanded for trial after rejecting the proposition that a concealed pre-employment physical defect bars FELA relief as a matter of law. Still, 368 U.S. at 46, 82 S.Ct. at 154-55. Nevertheless, the Court noted the relevance, in appropriate circumstances, of such a pre-existing condition to ascertaining whether the injury complained of was caused by the railroad’s negligence “in whole or in part” by tending to show either that the worker was not injured by the railroad at all, if injured, the railroad was not responsible for the full extent of the injury, or that damages should be diminished by the jury for contributory negligence. Still, 368 U.S. at 46 n. 14, 82 S.Ct. at 154 n. 14. Similarly, in Savoie v. Otto Candies, Inc., 692 F.2d 363, 372 (5th Cir.1982), this court upheld a finding of contributory negligence on the part of a seaman who knowingly exposes himself to conditions of employment while aware of an illness or disability which makes those conditions unsafe to him, or where a seaman has the possibility of securing relief from unsafe conditions by informing his superiors of them, but continues to work without doing so. See also Gavagan v. United States, 955 F.2d 1016 (5th Cir.1992) (upholding one hundred percent contributory negligence of seaman who concealed from his prospective maritime employer the limited use of his hand due to surgery and proceeded to re-injure it while trying to open a valve on a tanker).

From these cases, it appears that contributory negligence may be found where a seaman has concealed material information about a pre-existing injury or physical condition from his employer; exposes his body to a risk of re-injury or aggravation of the condition; and then suffers re-injury or aggravation injury. In this case, we are unsure whether the court fully analyzed the potential for contributory negligence, because of the tension between its findings of (a) no causal connection between Johnson’s employment misrepresentations and the accident, and (b) the “causal link” between the misrepresentations and Johnson’s injury…… We do not instruct how the court should ultimately rule on whether Cenac has proved Johnson’s causative contributory negligence in deliberately exposing himself to heavy labor with a weakened back, but we must remand for the court to reevaluate its findings on this issue. (Emphasis Supplied). Cenac at 303-5.

So, we are now faced, at least in the Fifth Circuit, with the reality that if you are not truthful with your prior injuries and/or illnesses on a maritime job application and you get hurt, you may be denied (1) maintenance and cure and (2) be held negligent since, basically the argument goes, you should not have put yourself in that working condition. This result would leave an injured seaman without any remedy whatsoever and completely at the mercy of the insurance company for the maritime employer or the maritime employer directly.

A Rock and a Hard Place

The seaman’s dilemma: If the seaman has had an injury before in his life does he tell the truth on the job application and risk not getting the job or does he not disclose it and risk not receiving cure if he gets hurt on the job or, even worse, being held 100% comparatively negligent thereby defeating even a Jones Act claim?

Since McCorpen almost all maritime employers have been ‘chomping at the bit’ to get out of paying cure on the basis that the seaman failed to disclose some medical fact or, on the other hand, misrepresented themselves medically in a job application or pre-job medical physical. You can bet the house that, after Cenac, they will also be trying to use it to defeat even a Jones Act claim.

To me, the answer is clear that you should always be honest. The question is…..what is the question? If they ask have you ever had back surgery and you have, then you should say so. If they ask have you ever had back pain, this is a little different. Of course, everyone has had back or neck pain sometime in their life. However, if you saw a doctor because of it, you may want to disclose this aspect.There are many different job applications and some do not ask the relevant questions and some do.

One of the cases, Gordon & Elias, L.L.P. handled involved a mariner that got the job through a staffing company. Due to being “hired” in this fashion, the seaman actually by-passed the normal hiring process of the offshore jack-up barge company. The staffing company did not have any questions regarding past medical issues. The questions were solely framed to his licensure and past maritime experience. In fact, the seaman had a prior laminectomy at the L5/S1 level. The per-job physical doctor made no reference to the prior surgery. The seaman, while on the job, actually fell of the rig 68 feet into the Gulf of Mexico and lived. He injured his back in the fall and hired us to represent him. The employer, in the discovery phase of the litigation, asked about prior medical and he truthfully responded. At that moment, the jack-up barge company, ceased paying for any medical care. We successfully argued (1) he was not asked on any job application about prior medical and (2) the scar from the surgery on the seaman’s back was readily visible and the pre-employment doctor either (a) should have known about and felt he was ‘fit for duty’ or (b) should have seen it and did not and therefore was remiss in his physical examination and that ‘shoddy work’ should not be held against the seaman.

Also, it may be wise, when job hunting, to make a Curriculum Vitae (CV a/k/a resume) and place in it any past medical issues. Make sure the CV is made a part of your permanent employment file and, this way, if you do get hurt, your counsel could easily argue that the employer “had notice” of the past problem and defeat any McCorpen like issues. Finally, I have advised some seaman that they should ask their doctor to prescribe a Functional Capacity Evaluation (FCE) test. It is a test that was designed mainly by Liberty Mutual Insurance Company in the 1980s and tests the limitations, if any, that exist in a person. It tests lifting capabilities and limitations, walking, squatting, crawling, stair-stepping, standing, crouching, bending and many other facets. It even has a built-in test to determine if the person is faking. It basically was designed to be utilized in litigation for the defense as a way to detect over-exaggeration of symptoms and/or malingering. Certainly, armed with an FCE that clears you being ‘fit-for-duty’, it would be quite hard for a doctor or company to reject you as ‘not fit-for duty’.

We Wish You Calm Seas

Written and Copyrighted by Steve Gordon and R. Todd Elias

www.offshoreinjuries.com

Why You Need a Maritime Admiralty Offshore Accident Lawyer

The Merchant Marine Act of 1920 is one of three congressional laws commonly referred to as the “Jones Act”. Formerly, it was found at 46 U.S.C. Section 688, et seq. and was recently codified in October, 2006 at 46 U.S.C. Section 30104 et seq. The purpose of the Jones Act was to recognize the importance of a strong merchant marine system for national defense, and the growth of foreign and domestic commerce by protecting the mariner. Dating back for many centuries, the shipping industry has long been accepted as vital to the economic existence of countries. It was always important that when a seaman was injured far from home, it was the duty of the ship owner to repatriate the injured worker.

The Jones Act is one of the few areas of the law that is still favorable to an injured worker. It applies to deck hands, engineers, third mates, second mates, first mates, relief captains, captains, roustabouts, roughnecks, drillers, pilots, tanker man, anchor tenders and basically all persons that are involved in the maritime offshore industry. It applies to the fishing, fishery, canning, shrimping, oil field, dredging, barge, tugboat, towboat, crew boat, supply boat and other maritime offshore industries. The Jones Act was enacted after FELA but adopts FELA’s liberal construction in favor of the injured worker. At Gordon & Elias ( www.offshoreinjuries.com ), we know exactly how to get you the necessary maintenance, medical care [“cure”] and win your Jones Act and/or unseaworthiness claim. To try this yourself, is not smart and will only result in you not getting good results.

The Jones Act applies when: A seaman, while working on board a vessel, is injured in the course and scope of employment upon a navigable waterway. Though the previous sentence would seem easy to apply to determine the applicability of the Jones Act, unfortunately this is not the case even after almost a century of American jurisprudence.

Who Is a “Seaman”?

United States’ courts have struggled with “Who is a seaman?” The various federal circuit courts seem to agree that, to qualify as a “seaman”, the person has to be permanently assigned to an identifiable fleet of vessels. For instance, a diesel mechanic that works for ABC Co. who is sent to repair the engines of a vessel that is owned by 123 Company would not be covered by the Jones Act if he injures himself on that vessel. This is because he is not “assigned” to that particular fleet of vessels and is, therefore not a “seaman”. Even a Pilot, whose sole job is to get on and off ships and navigate them into a harbor day and night are not covered. This Pilot example demonstrates that a person, whose work is 100% on the water and constantly subject to the perils of the sea, may still not qualify as a “seaman”. Each situation must be determined on its own facts.

What is a “Vessel”?

Even though maritime law is the oldest law in the United States, the courts still wrestle with what is a “vessel”. The obvious vessels such as a barge, dredge, jack-up barge, drill ship, work over rig, floater, platform, crew boat, supply boat have always been considered vessels. As examples, (1) with the continual development of new technologies to seek and extract oil and gas from the seabed floors, the courts have been faced with determining whether new types of devices are vessels for the application of the Jones Act; these include Tension Leg Platforms (TLPs or TWLPS) which do not stand upright when released from the seabed floor; or (2) a casino that is otherwise a riverboat that floats perfectly, but, because it never moves and is permanently tied to the shore, it has been held not to be a “vessel”. In a recent U.S. Supreme Court opinion, the Court attempted to finally define what a “vessel” is. In Stewart v. Dutra, 543 U.S. 481 (2005), the Court proclaimed that a vessel is “…a watercraft that is used, or capable of being used, as a means of transportation on water.” This definition seems clear enough but it remains to see, as technology advances, if the “murky waters” of maritime jurisprudence still are not sometimes challenged in the legal classification of what is a “vessel”.

Where are “Navigable Waterways”?

When the Jones Act became law, the merchant marine industry started to grow. It was, in fact, this industry that was extremely helpful in WWII in assisting the Navy. However, approximately in the late 1970s, the fleets and numbers of ocean going U.S. flagged vessels began to shrink and were replaced by an increase in foreign flagged and foreign owned vessels manned by non-U.S. citizens. This is a tragedy but a historic reality. This type of vessel is commonly called a “blue water” vessel. Today, there are only a handful of American flagged “blue water” vessels. However, with the increase of offshore drilling, the “brown water” vessels became abundant. Obviously, the Atlantic Ocean, Pacific Ocean and the Gulf of Mexico are navigable waterways. However, there has always been, and will always be, a healthy barge traffic business in America’s heartland. This inland waterway system, including the mighty Mississippi River and its tributaries, are also considered navigable waterways for purposes of applying the Jones Act.

Maintenance & Cure is Owed Without Regard to Fault

An injured seaman is entitled to maintenance. Maintenance is that some of money that would be required to supply room and board similar to what was supplied to the seaman on board the vessel. The maintenance is very low and is a per day payment. It is sometimes as low as $8.00 a day and sometimes as high as $35.00 a day.

An injured seaman is entitled to cure. Cure has been defined as reasonable and necessary medical care to return the seaman to a point of maximum medical improvement. Though these payments should be automatic, often times the seaman is faced with an employer that does not fulfill its obligations to give medical care and, unlike state workers’ compensation schemes, there is no statutory obligation to compel the employer to provide medical care.

Both with maintenance and cure, often times the employer, though obligated, simply does not pay what it should or, sometimes, does not pay at all and the Jones Act provides a useful tool to get the seaman compensation. Maintenance and cure are actually rights that a seaman has had for hundreds of years and, unlike the Jones Act, are not governed by fault. In other words, even if the seaman is 100% at fault for his/her injuries, the duty of the employer remains the same.

An Injured Seaman Is Not Covered By Workers’ Compensation and the Jones Act is a Fault Based system

Before the Jones Act was enacted there was no remedy against an employer for an injured seaman other than maintenance and cure. However, the Jones Act is quite different from workers’ compensation statutes. Assume for the moment that you work at McDonalds; that you are mopping the floor and that you slip and fall in the soapy water that you put down and hurt your back. If this happened to you, you would be entitled to (1) your medical care for your injuries; (2) two-thirds of your average weekly wage while you are being treated; and (3) maybe a relatively small monetary settlement. But what if you could never return to medium or heavy type work again? Obviously, you would lose much money over the course of your work life. Also, and most importantly, note that you get these workers’ compensation benefits regardless of whether you were actually 100% at fault in causing your fall. This is where the Jones Act is quite different. Under the Jones Act, if you are hurt while working as a seaman on a vessel, you are entitled to nothing unless you prove that your injury was caused by the negligence (failure to act with reasonable ordinary care) of someone else or from an unseaworthy condition. “Unseaworthy” or “unseaworthiness” is defined as something on the vessel that is “not fit for its intended purpose” such as a rotted rope that breaks or a ladder that gives way. Unlike workers’ compensation, if you are held to be 100% at fault, under the Jones Act you get nothing! But unlike the hypothetical McDonald’s employee, you have the right to sue the employer and you can choose to sue in either a state court or a federal court. If you are successful, you can recover compensation for pain and suffering, mental anguish, physical impairment, physical disfigurement, loss of wages in the past, and loss of future earning capacity, vocational rehabilitation damages and other types of damages. The hypothetical McDonald’s employee cannot sue his employer if he receives workers’ compensation. Thus, the Jones Act can be much better for the injured worker but can also be worse if the injured employee does not prove his case adequately.

“Comparative Negligence” Under Jones Act

Another concept to understand about Jones Act is that it applies the legal doctrine of “comparative negligence” to all Jones Act claims. Under a “comparative negligence” approach, the jury hears testimony about the negligent conduct of both parties–the employer and the maritime worker. Based on the evidence, the jury will determine what the injured party’s damages are and how much should be allocated to each party. Sometimes accidents happen not just from the employers’ negligence but also from the worker’s too. The good thing about “comparative negligence” is, even though the jury may find a percentage of negligence on the worker, the injured worker still recovers the percentage of the jury’s monetary award that is equal to the employers’ percentage of negligence. By way of example only, if the worker is found 25% negligent and the employer is found 75% negligent and the jury awards $875,000.00, then the judgment would be that the worker recovers $656,250.00 plus costs. This is quite different than in almost all states where, if the injured person is found 51% or more negligent by the jury, the injured person would recover zero no matter how much the jury awarded for money damages.

A Jones Act lawsuit must be filed within three (3) years of the injury date or it is barred by the Statute of Limitations.

By: Steve Gordon and R. Todd Elias - www.offshoreinjuries.com

Why You Need a FELA Lawyer

Enacted in 1908, the Federal Employers’ Liability Act was passed by Congress and signed into law to protect America’s railroad workers. The Act, commonly referred to as FELA (pronounced “fee-lah”), was the US Government’s response to the harsh treatment of workers that worked days and nights, seven days straight forging the railway into unsettled territories. The work was hard, the terrain was rough, the pay was low and many thousands of workers would die every year. Nevertheless, it was steady work for all types of immigrants that spoke no English and would otherwise not be able to get a job to feed their families. However, when a railroad worker was injured there was no remedy for them. Hence, Title 45 U.S.C. Section 51, et seq. (FELA) was Congress’ answer. A FELA lawsuit must be filed within three (3) years of the injury date or it is barred by the Statute of Limitations. At Gordon & Elias ( www.gordon-elias.com ), we have been fighting for the rights of injured railroad lawyers for years and know how to (1) get you your necessary medical treatment and (2) get you the maximum economic recovery you deserve.

FELA is a Fault Based System as Opposed to Workers Compensation

Assume for the moment that you work at Kroger; that you are mopping the floor and that you slip and fall in the soapy water and hurt your back. If this happened to you, you would be entitled to (1) your medical care for your injuries; (2) two-thirds of your average weekly wage while you are being treated; and (3) maybe a relatively small monetary settlement. But what if you could not return to medium or heavy type work again? Obviously, you would lose much money over the course of your work life. Also, and most importantly, note that you get these workers’ compensation benefits regardless of whether you were actually 100% at fault in causing your mishap. This is where FELA is quite different from workers’ compensation statutes. Under FELA, if you are hurt while working for the railroad, you are entitled to nothing unless you prove that your injury was caused by the negligence (failure to act with reasonable ordinary care) of someone else or from a faulty piece of equipment. If you are held to be 100% at fault, you get nothing! But unlike the hypothetical Kroger employee, you have the right to sue the railroad and you can choose to sue in either a state court or a federal court. If you are successful, you can recover money for pain and suffering, mental anguish, physical impairment, physical disfigurement, loss of wages in the past, and loss of future earning capacity, vocational rehabilitation damages and other types of damages.

Railroad Companies Have Been Fighting FELA Since Its Enactment

The railroad companies have been opposed to FELA since its enactment and have tried unsuccessfully, for a century, to limit its reach or have it repealed. Instead, in most instances, they have adopted a harsh strategy of simply not paying damages due. Many injured railroad employees have gone years without compensation, even though liability has been clearly established. These companies have the economic resources to try to “starve out” the worker.

“Comparative Negligence” Under FELA

Another concept to understand about FELA is that it applies the legal doctrine of “comparative negligence” to all FELA claims. Under a “comparative negligence” approach, the jury hears testimony about the negligent conduct of both parties–the railroad company and the railroad worker. Based on the evidence, the jury will determine what the injured party’s damages are and how much should be allocated to each party. Sometimes accidents happen not just from the railroad’s negligence but also from the worker’s too. The good thing about “comparative negligence” is, even though the jury may find a percentage of negligence on the worker, the injured worker still recovers the percentage of the jury’s monetary award that is equal to the Railroad’s percentage of negligence. By way of example only, if the worker is found 25% negligent and the railroad is found 75% negligent and the jury awards $875,000.00, then the Judgment would be that the worker recovers $656,250.00 plus costs. This is quite different than in almost all states where, if the injured person is found 51% or more negligent by the jury, the injured person would recover zero no matter how much the jury awarded for money damages.

In summary, FELA is one of the few areas of the law that is still favorable to an injured worker. All of us are keenly aware of the different states adopting what is called “tort reform”. In essence, through the hard work of insurance companies’ lobbyists working with state legislators, there have been many alterations to our tort system. This is not true of FELA since the Congress would be the legislative body that would have to alter it and not some state legislature. The exact same law applies to a person hurt working on a tie gang in Albany Georgia as it does to an engineer injured in Casper Wyoming. Hopefully, FELA will remain as a resource for injured railroad workers without any alterations.

By: Steve Gordon & Todd Elias of Gordon & Elias, L.L.P. www.gordon-elias.com

International Recruitment – Managing H-1B and OPT Workforce

As most HR professionals who hire internationally know, the H-1B visa category is one of the most useful nonimmigrant options for individuals who will be employed temporarily in the US. HR professionals are also aware of the annual cap placed on the H-1B visa, and how this cap can close doors to some potential employees. The annual cap of 65,000 Bachelor’s Degree-holding nonimmigrants and 20,000 Master’s Degree- holding nonimmigrants applies to each fiscal year (October 1st to September 30th). This article provides a brief overview of the ever increasing popularity of H-1B visas, how to identify possible H-1B applicants in your workforce, H-1B alternatives, and how to address gaps in authorized employment and mitigate the risks and liabilities to your organization.

The United States has long been the favored destination of immigrants. Effective immigration policies formulated by the U. S. Citizenship and Immigration Service (“USCIS”), formally the INS, has attracted and retained talent of the highest ilk from all over the world. Due to effective immigration policies formulated and implemented by the U.S. government the, United States is still considered to be a land of opportunity and the only country that has all the necessary ingredients to lead the world in times of both financial stability and instability.

The International Organization for Migration (“IOM”) rates the United States and Canada as the countries facing a growing demand for skilled temporary workers, and it also ranks them as major receivers of permanent migrants from throughout the world.

All of the above factors taken together have greatly driven the demand for H-1B visas in the United States. The H-1B is the highest demanded work visa due to its flexibility (referred to as “portability”). Its popularity also arises from the fact that it is the only other “dual-intent” visa allowing an employee to apply for a Green Card.

The H-1B cap has been reached earlier and earlier each year. In 2008, USCIS received approximately 163,000 petitions on the first five days of the eligible filing period for FY 2009 (April 1-7, 2008). All 163,000 petitions were then subject to a computer-generated random selection process to determine which H-1B petitions would continue to receive full adjudication and be eligible to receive an H-1B visa number. The USCIS conducted two random selections. The first random selection was made on petitions qualifying for the 20,000 “Master’s or higher degree” (advanced degree) exemption. The second random selection was performed on the remaining advance degree petitions together with the general H-1B pool of petitions for the 65,000 cap.

With the demand and popularity of H-1B visas increasing every year, it is recommended that H-1B petitioning organizations start identifying potential H-1B candidates [employees who are presently on Optional Practical Training (“OPT”) or other nonimmigrant visas or whose OPT’s or visas are likely to expire later on in the year], and plan workforce needs early in the year to prepare to submit H-1B petitions. The sooner the petitioner starts the H-1B process, the better the chance that appropriate time can be spent preparing and analyzing a case.

Of course there are additional visa categories which may serve as alternatives to the H-1B and permit foreign workers to come into the US to work for a period of time. First, there are L-1 visas, which are issued to foreign employees of an international corporation. Second, there are TN visas, which are allowed pursuant to North Atlantic Free Trade Agreement and which are issued to Canadian and Mexican citizens. Thirdly, there are E-3 visas, which are issued to Citizens of Australia under the Australian Free-Trade Treaty. Moreover, there are other nonimmigrant visas, such as B-1 visas, that can bridge the gap while the employee waits for an approval of their H-1B petition. Employers can also utilize the services of an F-1 student with OPT, or H-3 visas for training programs within the company. If an organization has offices abroad, an employee can be sent to the office abroad and be carried on the payroll of the overseas office.

UNDERSTANDING CAP GAP ISSUES, PITFALLS, AND MITIGATING RISKS:

Cap gap occurs when an F-1 student or OPT status employee’s work authorization expires in the current fiscal year - before they can start employment pursuant to their approved H-1B in the next fiscal year (beginning on October 1^st). An employee in OPT status in a cap-gap situation would have to leave the United States and return just prior to the time their H-1B status becomes effective, at the beginning of the next fiscal year. Many employers file H-1B petitions on behalf of F-1 students after their post-completion OPT expires since the employer cannot file, and USCIS will not approve, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date an employer can file an H-1B petition for consideration under the next fiscal year cap is April 1^st for an October 1^st employment start date. If that H-1B petition and the accompanying change of status request are approved, the earliest date that the student may start approved H-1B employment is October 1^st. Consequently, OPT employees who are the beneficiaries of approved H-1B petitions, but whose periods of authorized stay (including authorized periods of post-completion OPT and the subsequent 60-day departure preparation period) expire before October 1, must leave the United States, apply for an H-1B visa at a US Consular post abroad, and then seek readmission to the United States in H-1B status.

Prior to the implementation the rule allowing for the extension of OTP for science, technology, engineering and mathematics (“STEM”) qualified Students, regulations were passed as stopgap measures to addressed the cap gap by authorizing an extension of the authorized stay, however they did not extend the student’s employment authorization. This meant the student could remain in the United States until October 1^st, when the approved H-1B employment was set to begin, but the student could not work.

In an effort to address this, the USCIS, under a rule addressing cap gap issues, stated that F-1 academic students on post-completion OPT could maintain valid F-1 status until the expiration of their OPT. Once that OPT ends, they are authorized to remain in the United States for up to 60 days to prepare for departure.

Below are 2 different scenarios on how this Cap Gap extension rule automatically becomes effective when the H-1B cap has been reached and the OPT employee (or F-1 student) has an H-1B petition filed on his/her behalf during the acceptance period:

Scenario 1: If the H-1B petition filed on behalf of the student is not selected during the acceptance period, the automatic extension terminates when USCIS announces completion of the random selection of the H-1B selection process on its public web site.

Scenario 2: If the H-1B petition filed on behalf of the student is selected during the acceptance period, the student may remain in the United States and continue working until the October 1^st start date indicated on the approved H-1B petition. The OPT employee may benefit from this provision only if they has not violated their status.

Under the rule, F-1 students may apply for post-completion OPT 90 days before and no later than 60 days after their academic programs end. This allows F-1 students seeking post-completion OPT to apply during their 60-day departure preparation periods in the same way that they are allowed to apply for H-1B status during their departure preparation periods. This allows students to ensure that they meet graduation requirements before applying for OPT.

STEM DEGREES AND OPT EXTENSIONS:

Realizing the need for retaining highly skilled foreign national workers to meet the United States’ growing demand for skilled temporary workforce, the USCIS now allows F-1 academic students who receive degrees in STEM, and who receive an initial grant of OPT, to apply for a 17-month extension for a maximum of 29 months of post-completion OPT. The STEM Designated Degree Program List is based on the “Classification of Instructional Programs” developed by the US Department of Education’s National Center for Education Statistics.

Eligible STEM degrees include Computer Science Applications, Life Sciences, Actuarial Science, Mathematics, Engineering, Military Technologies, Engineering Technologies, and Physical Sciences. In order to be eligible for the 17-month extension of post-completion OPTs, the OPT employee or student must meet the following criteria:

1. The student must have a Bachelor’s, Master’s or Doctoral degree in a STEM field; and

2. The employer must be enrolled in E-Verify; and

3. The student must apply on time (at least 90 days before the current post-completion OPT expires).

Employees in OPT status who timely file STEM extension applications with USCIS may continue working while their applications are pending for 180 days or the date of the decision, whichever date is earlier.

An employee who has received a 17-month STEM extension must report the extension to their International Student Officer (“ISO”) or Designated Student Officer (“DSO) within 10 days, indicating changes in any of the following:

• • Legal name;
  • Residential and mailing address;
  • E-mail address;
  • Employer name;
  • Employer address;
  • Job title or position;
  • Supervisor name and contact information;
  • Employment start-date; and
  • Employment end-date

Some may question the benefits of hiring a foreign worker that requires extra care and a longer hiring process than a US worker. However, there are clear benefits to international recruitment, such as the creation of new jobs that lead to a larger market, and transfer of skills and knowledge from diverse cultural perspectives. In fact, international transfers and assignments provide great career prospects for both employers and employees because they allow for an exchange of specialized knowledge and managerial perspectives. Foreign workers also increase specialization in the economy, enhance the nation’s productive capacity, and help innovation in the US. The international transfer and mobility of talent is a result of globalization of economies and is both a cause of and consequence of globalization.

In an ongoing attempt to keep HR professionals up-to-date with business immigration law rules and regulations, our office continues to forge strategic alliances with various professional organizations that are able to obtain and provide important information to their members.

When traditional immigration approaches do not work, our knowledgeable and skilled legal team offers many visa options to meet immigration goals. Please feel free to contact us at any of our several office locations, and speak to a member of our staff in one of the 15 languages spoken, English, Spanish, French, Japanese, Korean, Slovak, Czech, Polish, Tagalog, Hindi, Tamil, Italian, Russian, Chinese, and German.

To meet a growing demand for Canadian Immigration Law Services, Nachman & Associates formed a Canadian Division in 2005. Managed by licensed Canadian legal staff and with offices in Montreal and Toronto, as well as New York and New Jersey, our Canadian Division attorneys are in the unique position to assist with cross-border issues.

Nachman & Associates, P.C. is also proud to announce the 2007 formation of a Global Immigration Division to assist clients with immigration services to countries such as the UK, China, New Zealand, Australia, and more. Our Global Division staff is fully equipped to assist with international transfers to and from the United States. If you, or any member of your staff, are interested in receiving more information about various immigration options, or subscribing to one of our firm’s monthly newsletters, please contact our offices at 201-670-0006 x107 or e-mail us at info@visaserve.com.

ESTA is a new electronic system implemented to collect and maintain a record of visitors who want to travel to the United States under the Visa Waiver Program (”VWP”).

“Rather than relying on paper-based procedures, this system will leverage 21st century electronic means to obtain basic information about who is traveling to the U.S.without a visa,” said Homeland Security Secretary Michael Chertoff. Read the rest of this entry »

Anirudh Rao 5^th Year LL.B, University Law College, Bangalore

Introduction: Over the past several years, advances in computer software have brought us time-saving business programs, educational software that teaches basic and sophisticated subjects, graphics programs that have revolutionized the design industry, Internet applications that help connect us with other computer users, and an increasingly complex variety of computer games to entertain us. As the software industry grows, everyone stands to benefit for it enables us to perform tasks with a greater degree of efficiency and accuracy. Compared to literature, music and movies, computer software is a relatively new form of intellectual property. Nevertheless, software is protected under the very same laws.

The copyright infringement of software or software piracy refers to practices which involve the unauthorized copying of computer software. Pirated software hurts everyone—from software developers to retail store owners, and ultimately to all software users. Furthermore, the illegal duplication and distribution of software has a significant impact on the economy.
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Oral wills, or nuncupative wills, are permitted in many states under limited circumstances. However, a form of guidelines should be utilized if you are planning on making an oral will to be assured that it will be honored.

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At times, circumstances in our lives may change. This can be due to a remarriage, birth, death, divorce, change of address, change of executor or guardian, or other situations where our present will may not cover everything that we now believe it should, but for the most part, it is still factual. We may have acquired additional assets or, in the alternative, we have recently disposed of assets that are bequeathed (assigned to a specific person) in our present will, or we wish to distribute one specific part of our assets in a different manner. It is under these conditions where it can be beneficial to change one specific part of a will rather than rewrite an entire will. It can also be far more cost-effective to draft a codicil when only a specific portion of a will needs to be altered.

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Theoretically, anyone with assets should have a will. A person without a will is said to have died intestate. When someone dies intestate, his or her assets generally pass as follows:

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A limited liability company (LLC) is a form of business organization set up to offer liability protection to its members. When difficulties arise, LLC members may lose their investments in the company, but not their personal assets. LLCs are often better than a limited partnership, because in a limited partnership, one partner is personally liable for the partnership’s debts. An LLC does not make such a requirement of any one member.

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