Case Number: 2017-CA-0585

Judge: Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

Court: Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

Plaintiff's Attorney: Timothy J. Young
Megan C. Misko
Tammy D. Harris

Defendant's Attorney: William B. Schwartz
Alex S. Aughtry

Description: In this maritime personal injury case, plaintiff/appellant, Jordy Rousse
(“Rousse”), appeals the district court’s April 19, 2017 judgment granting the
motion for partial summary judgment filed by defendant/appellee, United Tugs,
Inc. (“United”), and dismissing Rousse’s claims for maintenance and cure. For the
reasons that follow, we convert the appeal to an application for supervisory writ,
grant the writ application, and deny relief.
On May 15, 2014, Rousse injured his back in a work-related accident while
performing his duties as a deckhand aboard a vessel owned by United, his
employer. On September 19, 2014, Rousse filed a petition for damages against
United, alleging claims arising under the Jones Act, General Maritime Law, and
the saving to suitors clause. United paid Rousse maintenance and cure following
his accident, during which time Rousse underwent two lumbar spine surgeries.
On February 14, 2017, United filed a motion for partial summary judgment
raising a McCorpen defense. United argued that, pursuant to McCorpen v. Cent.
Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968),1 Rousse is precluded from
receiving maintenance and cure because he concealed from his employer a pre
existing medical condition. United contended that, on October 10, 2013, prior to
hiring Rousse, United required Rousse to undergo a pre-employment physical and
complete a prior medical history questionnaire form. When completing the form,
1 As discussed in this opinion, under McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir.1968), an injured seaman is not entitled to maintenance and cure where he knowingly or fraudulently conceals his preexisting illness from his employer and there is a causal link between the preexisting disability that was concealed and the disability incurred during the voyage.
2
Rousse failed to disclose prior back injuries and medical treatment for prior back
complaints.
On April 19, 2017, the district court granted partial summary judgment and
dismissed Rousse’s claims against United for maintenance and cure. This appeal
followed. Rousse sets forth a single assignment of error on appeal, contending that
the district court erred in granting partial summary judgment.
Before we discuss the judgment in question, we must first address whether
this court has appellate jurisdiction to review this matter. The district court
judgment dismissed some, but not all, of Rousse’s claims against United.
Specifically, the judgment only dismissed Rousse’s claims for maintenance and
cure, but certain other claims against United, including claims of negligence and
unseaworthiness, remain set for trial on the merits. Accordingly, the April 19, 2017
judgment is a partial judgment within the ambit of La. C.C.P. art. 1915(B), which
provides:
(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
3
The district court did not designate the judgment as final for the purpose of
an immediate appeal; thus, this is not a final, appealable judgment, and this Court
lacks appellate jurisdiction to review the judgment.
“The proper procedural vehicle to seek review of an interlocutory judgment
that is not immediately appealable is an application for supervisory writ.”
Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, 12-0907, p. 4 (La. App.
4 Cir. 2/20/13), 155 So.3d 560, 562 (citing La. C.C.P. art. 2201). “[T]he difference
between supervisory jurisdiction and appellate jurisdiction is that the former is
discretionary on the part of the appellate court while the latter is invocable by the
litigant as a matter of right.” Livingston Downs Racing Ass’n, Inc. v. La. State
Racing Comm’n, 96-1215, p. 3 (La. App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216.
When confronted with a judgment in an appellate context that is not final
and appealable, this Court is authorized to exercise its discretion to convert that
appeal to an application for supervisory review. See Stelluto v. Stelluto, 2005-0074,
p. 7 (La. 6/29/05), 914 So.2d 34, 39 (“the decision to convert an appeal to an
application for supervisory writs is within the discretion of the appellate courts”).
This Court has in similar circumstances ordinarily but not necessarily “converted
‘appeals’ of non-appealable judgments to applications for supervisory writs in
those cases in which the motions for appeal were filed within the thirty-day period
allowed for the filing of applications for supervisory writs.” Favrot v. Favrot,
2010-0986, p. 6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104. See also Uniform
Rules, Courts of Appeal, Rule 4–3.
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Here, the judgment was signed on April 19, 2017, and the motion for appeal
was filed on May 2, 2017, which is within the thirty-day time period allowed for
the filing of an application for supervisory writ. We thus exercise our discretion
and convert the instant appeal to an application for supervisory writ. See, e.g.,
Zeigler v. Hous. Auth. of New Orleans (HANO), 2015-0626, pp. 3-4 (La. App. 4
Cir. 3/23/16), 192 So.3d 175, 178.
Courts of appeal review a grant of a motion for summary judgment de novo
using the same criteria district courts consider when determining if summary
judgment is proper. Kennedy v. Sheriff of E. Baton Rouge, 2005-1418, p. 25 (La.
7/10/06), 935 So.2d 669, 686 (citations omitted). The summary judgment
procedure is favored in Louisiana. La. C.C.P. art. 966(A)(2).
“After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law.” La. C.C.P. art. 966(A)(3). Regarding the burden of
proof on summary judgment, La. C.C.P. art. 966(D)(1) states:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
5
The Louisiana Supreme Court has explained our state courts’ “concurrent”
subject matter jurisdiction in maritime cases as follows:
As a general proposition, maritime law in the United States is federal law. This proposition is based upon Article III, § 2, cl. 1 of the United States Constitution, which provides that the federal judicial power “shall extend ... to all Cases of admiralty and maritime Jurisdiction.”
Notwithstanding, federal-court jurisdiction over maritime cases has not been entirely exclusive. Section 1333(1) of Title 28 of the United States Code, which is the successor to the Judiciary Act of 1789, bestows upon the federal district courts “original jurisdiction, exclusive of the courts of the States,” of admiralty and maritime cases, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” The emphasized language, commonly referred to as the “saving to suitors” clause, has been interpreted as giving states the concurrent power to hear in personam admiralty cases. Thus, a maritime plaintiff may elect to pursue his in personam action in either state or federal court.
Generally, state courts exercising concurrent maritime jurisdiction are bound to apply substantive federal maritime statutory law and to follow United States Supreme Court maritime jurisprudence. [footnote omitted] However, they may adopt such remedies, and attach to them such incidents as they see fit, so long as they do not attempt to make changes in the substantive maritime law. [footnote omitted] Milstead v. Diamond M Offshore, Inc., 95-2446, pp. 6-7 (La. 7/2/96), 676 So.2d
89, 93-94 (internal citations omitted)(emphasis in original).
The matter before this Court requires us to determine whether Rousse has
forfeited his entitlement to receive maintenance and cure. “A claim for
maintenance and cure concerns the vessel owner’s obligation to provide food,
lodging, and medical services to a seaman injured while serving the ship.” Lewis v.
Lewis & Clark Marine Inc., 531 U.S. 438, 441 (2001). In McCorpen, the U.S. Fifth
Circuit Court of Appeals held that an employer’s obligation to pay maintenance
and cure is eliminated if a seaman intentionally conceals or fails to disclose past
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illness or injury to an employer who required the seaman to submit to a pre-hiring
medical examination or interview. 396 F.2d at 548-49. We recognize that the
McCorpen defense arises from jurisprudence of the U.S. Fifth Circuit, which has
neither been adopted nor rejected by the U.S. Supreme Court and has not been
codified in a federal statute.2
“In matters involving federal law, state courts are bound only by decisions of
the United States Supreme Court. Federal appellate court decisions are persuasive
only.” Shell Oil Co. v. Sec’y, Revenue & Taxation, 96-0929, p. 9, n. 11 (La.
11/25/96), 683 So.2d 1204, 1210 (citations omitted). “Federal appellate decisions
will not be followed in the face of positive jurisprudence of the Supreme Court of
Louisiana to the contrary.” Id., 96-0929 at p. 9, 683 So.2d at 1210. Nonetheless, as
federal appellate decisions are persuasive authority, “we review those opinions
carefully to see if they provide further guidance for our analysis.” FIA Card Servs.,
N.A. v. Weaver, 2010-1372, p. 7 (La. 3/15/11), 62 So.3d 709, 714. Likewise,
federal district court decisions are not binding on this Court, but we may find their
“rationale persuasive and concur with [their] conclusions.” Houston v. Avondale
Shipyards, Inc., 506 So.2d 149, 150 (La. App. 4th Cir. 1987).
2 There is a split among the federal circuit courts of appeal as to what non-disclosures regarding prior injuries result in a seaman’s forfeiture of maintenance and cure. The U.S. Third, Fourth, Eighth, and Ninth Circuits each apply a standard similar to the McCorpen defense. See Deisler v. McCormack Aggregates Co., 54 F.3d 1074, 1081 (3d Cir. 1995); Evans v. Blidberg Rothchild Co., 382 F.2d 637 (4th Cir. 1967); Wactor v. Spartan Transportation Corp., 27 F.3d 347, 352 (8th Cir. 1994); Tawada v. United States, 162 F.2d 615 (9th Cir. 1947). The U.S. Second Circuit has rejected the McCorpen defense, holding that a seaman “who believes himself fit for duty and signs on without any fraudulent concealment, is entitled to maintenance and cure, notwithstanding a previous condition of ill health.” Sammon v. Cent. Gulf S. S. Corp., 442 F.2d 1028, 1029 (2d Cir. 1971)(quoting Ahmed v. United States, 177 F.2d 898, 900 (2d Cir. 1949)).
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The Louisiana Supreme Court has never addressed the question of whether
the McCorpen defense is viable in Louisiana. The only reported case, in which the
Louisiana Fourth Circuit specifically examined and applied the McCorpen defense,
was reversed by the Louisiana Supreme Court, which summarily found that the
district court was “not clearly wrong” and reinstated the district court’s judgment,
without ascribing further reasons. See Pichon v. Ocean Drilling & Expl. Co., 617
So.2d 38 (La. App. 4th Cir. 1993), writ granted, judgment rev’d, 619 So.2d 536
(La. 1993). Most recently, in Cotton v. Delta Queen Steamboat Co., 2009-0736,
pp. 11-12 (La. App. 4 Cir. 1/6/10), 36 So.3d 262, 270, this Court found no cause of
action for an employer seeking restitution of maintenance and cure already paid to
a seaman, where the district court denied cure as to certain physicians, finding that
partial summary judgment was “supported by the McCorpen decision.”3
Regarding other Louisiana state courts of appeal, the Louisiana Fifth Circuit
has adopted and applied the McCorpen defense. See, e.g., Hernandez v. Bunge
Corp., 2001-1201 (La. App. 5 Cir. 4/10/02), 814 So.2d 783, writ denied, 2002
1551 (La. 9/30/02), 825 So.2d 1193. The First and Third Circuits have considered
and examined the McCorpen defense, though in the particular cases at bar, those
courts found the respective employers had not met their burdens of proof under the
defense. See, e.g., Folse v. Gulf Tran, Inc., 2003-0758 (La. App. 1 Cir. 2/23/04),
873 So.2d 718; Greaud v. Acadian Towboats, Inc., 628 So.2d 52 (La. App. 1st Cir.
1993); LaPrarie v. Hercules Offshore Corp., 2001-1193 (La. App. 3 Cir. 2/6/02),
3 The prior judgment of the district court, which relied had on McCorpen, was not reviewed on appeal and was not before the Court. Id., 2009-0736 at p. 11, n. 9, 36 So.3d at 270.
8
817 So.2d 149. We have found no reported case of this State specifically rejecting
or declining to follow McCorpen in any maritime claim filed in a Louisiana state
court. Accordingly, we find McCorpen persuasive authority. We now address the
merits of United’s McCorpen defense.
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; and (3) a causal connection between the prior injury or
ailment and the present injury in the complaint. 396 F.2d at 548-49. See also
Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 174 (5th Cir. 2005).
Rousse argues that the district court erred in granting summary judgment, as
he disputes that any of the elements of the McCorpen defense were satisfied. He
contends that genuine issues of material fact exist as to whether his non-disclosure
of prior back complaints was intentional; whether the non-disclosed back
complaints were material to United’s hiring decision; and whether there is any link
between his prior back complaints and his current injury.
With respect to the first element of intentional concealment, Rousse argues
that his subjective intent and language contained in United’s pre-employment
medical questionnaire form create factual disputes for trial. Specifically, Rousse
contends that, at the time he completed the form, he had no current back pain and
did not think that any of his prior injuries were “significant.” The form at issue
contained the following instruction:
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ATTENTION: YOU MUST ANSWER TRUTHFULLY REGARDING THE BELOW MEDICAL CONDITIONS. FAILURE TO ANSWER TRUTHFULLY WILL RESULT IN IMMEDIATE TERMINATION AND FORFEITURE OF WORKERS COMPENSATION BENEFITS AND FORFEITURE OF MAINTENANCE AND CURE.
Circle Y for YES and N for NO if you currently have the following symptoms or have significantly in the past. Describe any “yes” at bottom. (Emphasis added). Below the instruction, the form listed a series of medical
conditions. There is no dispute that Rousse completed the form and answered N to
all conditions, including “Injured back/back pain,” “Recurrent neck/back pain,”
“Ruptured/herniated disc,” “Difficulty walking/climbing,” “Sciatica or nerve
pain,” “Numbness/paralysis,” “MRI, CT scan, discogram or myelogram,” and
“Injury or illness which required loss time from work.” There is also no dispute
that United required Rousse to submit to a pre-hiring medical examination and to
complete the medical questionnaire form at issue.
In its reasons for judgment, the district court provided a summary of the
medical records introduced by United, documenting Rousse’s prior lower back
complaints, as follows:
Medical records produced by United show that plaintiff [Rousse] underwent lumbar spine x-rays at age 16 in November, 2002 when he experienced lower back pain. At that time he was diagnosed with “probable spondylolisthesis of L5 on SI.” On November 18, 2004, while working as a stock clerk, plaintiff visited an emergency room following a work related injury. On that occasion plaintiff reported to hospital staff that he had attempted to catch a co-worker who fell off of a ladder. He described pain in his lower back and numbness in his legs. Plaintiff further reported that his medical history included a “bulging L5-birth defect-sacral fracture.” Following an automobile accident in November, 2004, plaintiff was treated at an emergency room for injuries to his head, right shoulder, and low back. He told hospital staff that he had lost consciousness at the time of the collision. As part of his medical history he reported a fracture of his
10
lower back. On that occasion plaintiff underwent a CT scan of his head and x-rays of his neck and low back. The radiologist’s notes read “loss of normal lordosis with straightening and kyphosis of the [cervical] spine, nonspecific.” For the lumbar spine, the radiologist noted, “Grade I anterolisthesis of L5 on SI likely congenital as this is similar to September 18th of 2004.” In September, 2006, plaintiff was treated at an emergency room following a physical altercation. He reported to hospital staff that he sometimes took Xanax and Lortab for back problems.
On three separate dates in July, 2012, while working for another towing company, plaintiff sought treatment at Complete Occupational Health Services for low back pain that radiated to his legs. He reported that he felt a pull in his back while lifting a box. This was the same medical facility where plaintiff would later undergo his pre-employment physical for United. On July 24, 2012, plaintiff completed a form listing 88 medical conditions. He was instructed to circle the symptoms he had experienced. He indicated yes to injured hip; back surgery/injury; recurrent neck/back pain; difficulty walking/climbing; numbness/paralysis; and MRI, CT scan, discogram or myelogram. Plaintiff noted that “[a]ll my yes answers started 8 days ago.” Plaintiff reported that he was taking “Hydroco/APAP” and that he used the medication for pain. He related that he experienced this type of back pain two to three times a year, and it normally resolved within two to three days. The diagnosis on this occasion was acute myofascial strain, acute low back pain, and sciatica. The clinic released plaintiff to return to work on July 30, 2012.
When plaintiff returned to Complete Occupational Health Service on October 10, 2013 for his pre-employment examination, he was given the same type of form as the one he had completed in July, 2012. This time he did not note any of his prior back problems. But when he was treated at Terrebonne General Medical Center on May 15, 2014 for alleged injuries sustained in the accident that is the subject of the instant lawsuit, plaintiff told medical staff that for five weeks he had suffered left low back pain radiating down his left leg, and that the pain worsened that day when he stepped off of a barge at work. Plaintiff reported that he had suffered similar episodes in the past. The McCorpen decision explained that in “cases involving a pre-existing
illness or other disability, the courts have made a distinction between
nondisclosure and concealment.” 396 F.2d at 548. “Where the shipowner does not
require a pre-employment medical examination or interview, the rule is that a
11
seaman must disclose a past illness or injury only when in his own opinion the
shipowner would consider it a matter of importance.” Id. at 548-49. “On the other
hand, where the shipowner 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.” Id. at 549.
The U.S. Fifth Circuit in Brown v. Parker Drilling Offshore Corp. held that
“[t]he ‘intentional concealment’ element does not require a finding of subjective
intent.” 410 F.3d at 174 (quoting Vitcovich v. Ocean Rover O.N., No. 94-35047,
106 F.3d 411, 1997 WL 21205, at *3 (9th Cir. Jan. 14, 1997)). “Rather, it refers to
the rule that a seaman may be denied maintenance and cure for failure to disclose a
medical condition only if he has been asked to reveal it.” Id. “Failure to disclose
medical information in an interview or questionnaire that is obviously designed to
elicit such information therefore satisfies the ‘intentional concealment’
requirement.” Id. The Brown court rejected an injured seaman’s argument that he
did not consider any prior back strain or muscle pulls to be “back injuries” when
confronted with the question on an employment application. 410 F.3d at 175.
In Wimberly v. Harvey Gulf Int’l Marine, LLC, 126 F. Supp. 3d 725, 732
(E.D. La. 2015), the federal district court for the Eastern District of Louisiana
considered a pre-employment medical history form containing the same
instruction, using the “significantly” language of which Rousse complains. Relying
on Brown, the Wimberly court rejected the seaman’s argument and found that
12
subjective intent was not material to the “intentional concealment” element. Id. at
731-32. The court found that the plaintiff downplayed his past medical history and
that this was evidence of objective intent to conceal. Id. at 732. See also Ladnier v.
REC Marine Logistics, L.L.C., No. 14-1278, 2015 WL 3824382, at *4 (E.D. La.
June 19, 2015)(addressing the same instruction and adopting Brown’s holding that
intentional concealment does not require a finding of subjective intent). We are
persuaded by the reasoning in these cases. Here, the record is clear that Rousse
complained of lower back pain and sought medical treatment for those complaints
dating back to 2002; he did not, however, disclose this medical information to
United on the medical questionnaire form that United required him to complete.
Thus, we find that the intentional concealment element is satisfied, and Rousse’s
argument without merit.
We next turn to the second element of materiality. In Brown, the U.S. Fifth
Circuit held that “[t]he fact that an employer asks a specific medical question on an
application, and that the inquiry is rationally related to the applicant’s physical
ability to perform his job duties, renders the information material for the purpose
of this analysis.” 410 F.3d at 175.
Rousse argues that United failed to establish that any concealed facts were
material to United’s hiring decision. United supplied an affidavit of its president,
Emmett Michel Eymard, who attested that if Rousse had accurately disclosed his
prior medical history of back problems, United would not have hired Rousse
without further medical evaluation, medical records review, and functional testing
13
to determine whether Rousse could perform the duties of a deckhand. Eymard
attested that, as president, he set forth hiring policies and procedures relating to
Rousse. Eymard further attested that United requires all prospective employees to
complete the medical questionnaire form, and United uses the form “to have
prospective employees disclose medical conditions and facts material to the
ultimate decision whether or not to hire an employee.” According to the affidavit,
the form was “designed to form part of an overall assessment whether Jordy
Rousse was physically capable of performing work of a deckhand on ocean going
tugs operated by United Tugs.” The affidavit stated that the “job of a deckhand at
United Tugs is not a sedentary job and requires a certain level of physical activity”
and listed numerous physical job duties of a deckhand.4 Rousse did not submit any
evidence to refute the affidavit.
Rousse contends that Eymard’s affidavit is insufficient because Eymard
failed to attest that Rousse would not have been hired had United known about the
prior back complaints. Rousse cites to Cal Dive Int’l, Inc. v. Grant, No. 11-1657,
4 According to Eymard’s affidavit, the duties of a deckhand at United include:
a. “Making up the tow” b. “Dropping, spotting and switching barges at docks” c. “Assisting the vessel and tow in making locks” d. “Standing lookout, or riding the head of the two as a lookout” e. “Performing the various tasks necessary to carry out the above, such as making a coupling, operating winches and ratchets, and line handling, including splicing and throwing lines” f. “Chipping and painting vessel” g. “Other equipment maintenance as needed” h. “Cleaning or scouring the boat” i. “Cleaning quarters, including personal quarters” j. “Cleaning the wheelhouse and galley” k. “Cleaning the heads and companionways” l. “Maintaining the barge, grease winches, dogs on hatch covers, etc.” m. “Dewatering the barge as necessary; and” n. “Performing other cleaning chores as directed by the Master”.
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2013 WL 1099157, at *5 (E.D. La. March 15, 2013), in which the court found
genuine issues of material fact as to the materiality prong where the employer
submitted an affidavit that disclosure would have “materially affected Cal Dive’s
decision to hire her”; that the plaintiff “would have been sent for further evaluation
and testing” and “[b]ased on the results of that testing, a determination on
providing reasonable accommodations to allow her to perform the essential
functions of her position safely would be made”; and that “[i]f no reasonable
accommodations can be made, then she would not have been hired.”
In Rousse’s case, however, Eymard’s affidavit contains no attestation that
any reasonable accommodations were available to afford Rousse’s potential hiring,
in the event that Rousse had disclosed his prior back condition to United. We find
Eymard’s affidavit more similar to the employer’s “declaration” discussed in
Dennis v. ESS Support Servs. Worldwide, No. 15-690, 2016 WL 3689999, at *5
(E.D. La. July 12, 2016). In Dennis, the employer set forth a list of job
requirements of the position and attested that had the plaintiff disclosed his prior
injury, the employer would have required the plaintiff to produce additional
medical records and undergo further testing and evaluation before reaching a
decision to hire him. Id. The court rejected the plaintiff’s argument that the
employer would have hired him regardless and provided him with reasonable
accommodations, and the court found no genuine issues of material fact as to the
materiality prong. Id. We are persuaded by the reasoning provided in Dennis and
Brown. Importantly, here, Rousse has not produced any evidence to refute
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Eymard’s affidavit. We find the materiality element is met, and Rousse’s argument
is without merit.
Lastly, we turn to the third element, causal connection. Rousse argues that
his pre-accident and post-accident injuries are not similar and that no connection
between these injuries exists. He also contends that his pre-injury medical records
show no previous injury at the L3-4 or L4-5 levels of the spine; a post-accident
lumbar MRI, however, showed a disc bulge at L3-4 and herniation at L4-5. United
argues that the link between the prior injuries and present injury is satisfied
because the prior and new injury affected the same body part – the lower back –
and Rousse complained of the same symptoms, namely, low back pain radiating
into his legs with numbness and tingling.
Brown stated:
…[The employer] need not prove that the prior injuries are the sole causes of the herniation. It need only show a causal relationship between the prior injuries and the herniation. “[T]here is no requirement that a present injury be identical to a previous injury. All that is required is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.” Quiming v. Int'l Pac. Enters., Ltd., 773 F.Supp. 230, 236 (D.Haw.1990) (citing McCorpen, 396 F.2d at 549.) 410 F.3d at 176 (emphasis in original). “‘[W]here plaintiff claims an injury in the
exact same area of the back as was previously injured, the causal connection is
clear.’” Id. (quoting Weatherford v. Nabors Offshore Corp., No. 03-0478, 2004
WL 414948, at *3 (E.D. La. March 3, 2004)).
In Brown, the plaintiff’s expert witness acknowledged that plaintiff’s prior
back strains were in the same lumbar spine region as his current back condition, a
16
herniated disc. 410 F.3d at 176. The fact that the injuries were in the same location
was considered sufficient for a causal connection. Id. The Brown court cited to
Weatherford, 2004 WL 414948 at *3, which found an “obvious causal connection”
between the plaintiff’s previous and current injuries because the plaintiff had
admitted to concealing a prior injury to his lower back, and his current claim
included an allegation of a “sharp, stabbing pain” in his lower back.
Likewise, in Wimberly, 126 F. Supp. 3d at 734-35, the plaintiff complained
of a current injury 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 [fracture]…’” Prior to this injury, the
plaintiff’s history of back problems consisted of complaints of “lower back pain,”
“back pain,” “back sprain,” “lower back sprain,” and diagnosis of an “L1 vertebral
body wedge compression fracture of unknown age.” Id. at 734. Relying on Brown,
the court found that “[w]hile 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. The prior compression fracture and muscle sprains need not be the sole cause
of the disc herniation to establish the causal link.” Id. at 734-35 (citing Brown, 410
F.3d at 176). Rather, a “causal relationship exists when the prior injury is located
on the same body part as the present injury.” Id. at 735. See also LeBlanc v. LA
Carriers, LLC, No. 15-1657, 2016 WL 1268342, at *7-9 (E.D. La. Mar. 31,
2016)(collecting cases)(finding no genuine issue of material fact as to causal
17
connection and rejecting plaintiff’s argument that “the conditions need to be
identical or at least cause similar symptoms”).
In contrast, Dennis demonstrated that a genuine issue of material fact existed
as to a causal link between a prior “high ankle” fracture and a subsequent work
related “low ankle” injury. 2016 WL 3689999 at *5. There, physicians testified to
conflicting opinions of whether the subsequent injury aggravated the prior injury,
and the court determined that the existence of a causal connection was an issue for
trial in order to weigh credibility of expert witnesses. Id.
In the matter before us, Rousse has not introduced evidence of any
physician’s opinion that his prior and current back conditions are unrelated. Rather,
Rousse comes forward with his interpretation of his medical records to argue that
his old and new injuries are not similar. Nevertheless, there is no question that
Rousse’s prior injuries, as well as the injury in litigation, are to the lower back.
Under the standard set out in Brown, Weatherford, and Wimberly, the causal
connection element is met by the fact that all injuries were to the same body part.
Again, we find these cases persuasive. We are not guided by Dennis with respect
to the causal connection element because the record herein lacks any conflicting
physician opinions as to the relationship between Rousse’s current and past back
complaints.5 Thus, we find the causal connection element satisfied, and we find
Rousse’s position without merit.

Outcome: For the reasons stated above, we find that the district court properly granted
partial summary judgment in favor of United, dismissing Rousse’s claims for
maintenance and cure. Accordingly, we convert the instant appeal to a writ
application, exercise our supervisory jurisdiction to grant the writ application, and deny relief from the April 19, 2017 judgment of the district court.

Plaintiff's Experts:

Defendant's Experts:

Comments: