Maritime Injury Lawyer Blog

Beaver County officials are working on the development of an Ohio River Port Authority. The Authority would facilitate projects such as the construction of docks on the Ohio River. Commercial river docks are used to load and unload a number of commodities along the Ohio River including coal, grain and rock salt. Workers engaged in the loading or unloading of products at these facilities would likely be covered by the federal Longshore and Harbor Worker Compensation Act. These type of jobs are difficult and dangerous. Accidents are an inevitable consequence of performing such dangerous work. If you have been injured in an occupation on the inland waterways including the Ohio River and Great Lakes, please feel free to call Steven Schletker for a free consultation.

Longshore cases are tried before Administrative Law Judges. Attorneys who practice Longshore cases have been very interested in the change of leadership at the Office of Administrative Law Judges National Office.

Chief Administrative Law Judge John M. Vittone retired on March 3, 2010. Judge Vittone joined the Department of Labor as Deputy Chief Judge in 1987, and was appointed Chief Judge in 1996.

Judge Stephen L. Purcell has been selected to serve as Acting Chief Judge.

Judge Daniel F. Sutton from the Boston District Office will serve as the Acting Associate Chief Judge for Longshore.

Judge William Colwell will continue to serve as Associate Chief Judge for Black Lung and Immigration.

Ashtabula, Ohio and Toledo, Ohio sought out experienced longshore workers, International Longshore Association union officials and maritime professionals to serve on their Port Authority boards. Other Port Authorities have been less successful placing longshoremen on their boards.

Suit and tie men have much to contribute to local Port Authorities. Their business skills are necessary to the formation of a successful organization. Blue collar longshoremen have much to contribute as well. International Longshoremen Association officer, Mr. Dick Gabel, serves on the Toledo Port Authority. He is a valuable resource for his non-maritime colleagues on the Board. The knowledge Mr. Gabel has gained from many years of work on the docks cannot be learned in business school. In addition to bringing hands-on expertise to problems that may develop, he is there to speak for working men and women.

The Cleveland-Cuyahoga County Port Authority has not taken advantage of the wealth of longshore talent and expertise at their disposal. Cleveland is rich with maritime workers and longshoremen who would be valuable contributors to the Port Authority. The experience of Ashtabula and Toledo should serve as a roadmap to Cleveland in making use of the maritime talent at their disposal.

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Deckhands injured on inland river tow boats or Great Lakes vessels are frequently asked to give a written or oral statement to their employer or the insurance company. Be careful what you put into the accident report. What you say can and will be held against you. An injured deckhand found this out the hard way on February 17, 2010. His case was dismissed based upon the content of a statment he signed prior to filing suit and prior to hiring an attorney. Kurpiel vs. Calumet River Fleeting, Inc. (Northern District of Illinois) U.S. Dist. LEXIS 13710

Plaintiff Kurpiel filed a complaint against Calumet River Fleeting, Inc. (Calumet), seeking damages for injuries he sustained within the scope of his employment with Calumet. Calumet filed a motion for summary judgment (dismissal upon consideration of depositions and other evidence).

Calumet hired Mr. Kurpiel as a deckhand aboard the M/V John M. Selvick in 2007. While on the job Kurpiel slipped on ice covered steps on the Selvick.

After the injury, the employer took a statement from Kurpiel. In his signed statement Kurpiel stated (no doubt with much coaching from the company's claims adjustor) that he did not know if he slipped or just turned his ankle. He also stated that there were rails on both sides of the steps, that all six steps had non-skid paint on them, that the area was well lit, and that the wheelhouse stairs had been salted and taken care of by the other deckhand during the earlier shift. According to Kurpiel, the deckhands were responsible for salting the deck and stairs and keeping them clear of snow and ice. On board the vessel, the crew had shovels, sledgehammers, and salt available to remove any snow accumulations. According to the statement, Kurpiel said that shortly after his fall, the crew checked the stairs and surrounding area and that both "were still okay from the salting." He also stated, "This was a freak accident that I do not think could have been
avoided. There was nothing that could have been done that had not been done."

Although the injured deckhand later clarified the hazardous conditions under which he was working, the Judge dismissed the case in large part based upon the statement. When a worker is injured he/she feels at the mercy of the employer. The injured worker is not familiar with the process and is typically unrepresented by council. He/she will frequently sign anything just to get the interview to end and to keep wage replacement, maintenance payments or other money flowing. The lesson to be learned is be very careful what you put in a statement. Even if you later retain council who places the negligent activities of the employer into the record, you may not be able to escape the earlier signed statement.

If you have been injured on the job for a maritime employer, please feel free to call Steven Schletker (800) 254-7487 for a free consultation. Also, please feel free to do so before you give a statement to your employer or their insurance adjustor.

Construction is moving forward on another Ohio River hydroelectric generating station. The project is providing work for numerous skilled maritime workers. Depending on the status of their job duties, those workers may be covered by the Jones Act, Longshore Act or State workers' compensation. Those workers assigned as crew members on towboats servicing the construction project may be covered by the Jones Act and General Maritime Law. Workers who are assigned to floating platforms, barges and other adjacent maritime areas who are not permanently assigned as crew members in navigation may be covered by the Longshore Act. Workers who reach their work station by crossing permanent land structures may be covered by state workers' compensation. Of course, it is not possible to give a blanket description of all workers covered by a particular compensation scheme. Each person's work experience, job duties and case is different. A personal review of your case will be required before hard advice can be given on whether to file under the Jones Act/General Maritime Law, Longshore Act or under state workers' compensation. If you are injured within the scope of your employment while working on the Cannelton Locks and Dam hydroelectric project, or another maritime site, please feel free to call Steve Schletker (800) 254-7487 for a free consultation.

Pittsburgh and Conneaut Dock Company/Canadian National provided employment for hundreds of Longshoremen and other dock workers in the not so distant past. Good paying jobs with reasonable benefits were provided through the cooperative effort of labor and management. With the flight of factories, steel production and automobile manufacturing from the midwest, docks at Conneaut, Ashtabula and throughout the Great Lakes corridor are rapidly diminishing. The Conneaut Port Authority is working to increase government funding of projects that could lead to an increase in shipping into the port. In particular, projects are being developed around the Pittsburgh and Conneaut Dock Company/Canadian National Docks. This would inevitably lead to an increase in Longshore work for the local labor force. Lake Erie commercial docks have been a mainstay of local economies throughout northern Ohio for decades. Spending to increase shipping opportunities in the area would be money well spent.

Attorneys handling Jones Act and Longshore cases in Kentucky, Ohio and West Virginia are finding that employers frequently spend large amounts of money to avoid paying modest injured worker claims. The insurance industry perpetually complains about the so called litigation crisis but then acts in a fashion that insures claims will be filed. Many injured workers are forced to hire an attorney to obtain payment of very modest medical bills or small amounts of compensation. The employer typically pays minimal benefits for a brief period of time and then pulls the rug out from under their injured worker. If this happens to you, do not be discouraged. The fact that payments have stopped does not necessarily mean your case is flawed. Employers terminate benefits in even the best cases. Jones Act employers, vessel owner and Longshore employer have the resources to wait the injured worker out. Protect yourself and be prepared. If you have been injured on the river and wish to discuss your potential claim please call for a free consultation.

When an injured deckhand, crew member or dock worker cannot return to his/her former employment, the analysis turns to suitable alternate employment. Considering the sluggish economy and high unemployment rates in Kentucky, Ohio and West Virginia, one might think it would be difficult to identify jobs the injured worker can perform.

Faced with this difficult issue, vessel owners and Longshore employers usually hire a vocational expert to identify alternate work. The Employer's vocational expert conducts an interview, reviews the medical records and then comes up with a list of jobs the injured worker can allegedly perform. Regardless of how hurt the worker is or how vocationally limited the worker may be (can't read, can't write, very limited education) the expert always comes up with available jobs. Although unemployment is soaring at numbers not seen since the great depression, the Employer's vocational expert identifies employers who (at least in theory) are lined up across the block to hire injured workers.

I had a recent case where the expert identified over 40 jobs that my injured client (who had not finished high school) could purportedly perform. When my client began contacting the potential employers on the list, he discovered some of the companies were no longer in business. Most of the companies did not have openings, some required physical labor grossly in excess of what my injured client could perform, some jobs were more than 60 miles from my client's home, etc. etc.

The Employer's vocational expert almost never sends out a report indicating the local job market does not have openings for the injured worker. They just will not do it.

While all economic indicators suggest very sluggish job markets in Kentucky, Ohio and West Virginia, the market for injured workers with job histories limited to manual labor is booming...if you don't believe me, just ask your Employer's vocational expert.

Attorneys representing injured Longshoremen have the opportunity to plead their case before a Department of Labor Claims Examiner in an Informal Conference. This Informal Conference is a mediation or settlement tool I like to use in cases I practice before the United States Department of Labor.

When the claim is filed the Employer/Carrier either pay Longshore compensation or controvert the claim. If the claim is controverted, the injured worker's lawyer will typically file for an Informal Conference. Informal Conferences for workers injured in Kentucky, Ohio and West Virginia are held on the telephone. This is because the District Offices for workers injured in Kentucky (Jacksonville, Florida) Ohio (Houston, Texas) and West Virginia (Baltimore, Maryland) are so distant that in-person Informal Conferences are not practical.

At the end of the Informal Conference, the Claims Examiner issues a written recommendation. The parties have 14 days after the issuance of the written memorandum of Informal Conference to accept the recommendation or move the case forward to Formal Hearing (trial). The Informal Conference gives the lawyer representing the Longshoreman the opportunity to plead the case in an informal and cost effective forum. The Informal Conference affords the Employer/Carrier the opportunity to present their defenses. It is a great mediation tool and often resolves differences between the injured worker and the Employer/Carrier.

Attorneys representing injured workers under the Longshore Act and Jones Act are frequently faced with the dilema of determining the forum in which to prosecute the claim. Workers often perform some duties that are Jones Act seaman in nature and some duties that are Longshore in nature. I have been in the position where I could not predict with certainty whether the trier of fact would find the injured worker to be a Jones Act Seaman (crew member) or a Longshoreman (dock worker).

Fortunately, the law permits an injured worker to file a claim under the Longshore Act and later pursue a claim under the Jones Act. This was confirmed on January 26, 2010 in a case pending in a New Orleans federal District Court. The Court in Erroll Chouest vs. Offshore Marine, 2010 U.S. Dist. LEXIS 6018, confirmed an employee's receipt of benefits under the Longshore Act does not preclude subsequent litigation under the Jones Act. To the contrary, where the evidence is sufficient to send the threshold question of seaman status to the jury, it is reversible error to permit an employer to prove that the worker accepted Longshore benefits while awaiting trial. See, Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 3784 S.Ct.1, 3, 11 L.Ed.2d 4 (1963). It is now "universally accepted" that an employee who receives voluntary payments under the Longshore Act without a formal award is not barred from subsequently seeking relief under the Jones Act.

Thus, an injured worker may collect Longshore benefits without waiving the right to later file a claim under the Jones Act. The ability to file under both the Longshore Act and Jones Act may also present the opportunity to get multiple insurance carriers to contribute to the settlement fund.

If you are injured at work on the Kanawha River, Ohio River or Lake Erie you have the right to select your own treating physician. Don't let a lawyer for your Great Lakes or river employer select your treating physician. Whether you are in Point Pleasant, West Virginia, Maysville Kentucky or Sandusky, Ohio your employer will be able to locate a physician with an impressive looking multiple page resume who will basically say whatever they want him/her to say. The physician selection process will likely be controlled more by who will provide helpful reports to the employer's litigation position, rather than who will be best able to provide the best care.

Jones Act and Longshore employer have the right to select a physician (who typically is anything but independant) to provide an independent medical examiation (IME). Lawyers for injured workers frequently refer to these as defense medical examinations. Although the employer can select the IME physician, it cannot force the selection of your TREATING physician. Choosing a treating physician is critically important for the injured worker. Don't pass that right over to your employer. You should select your own treating physcian.

If you have any question regarding your right to manage your medical treatment, please feel free to call Steve Schletker at (800) 254-7487 for a free consultation.

Consider a dock worker, Longshoreman, deckhand or Jones Act seaman who performs repetitive manual labor. Day after day the Longshoreman may weld with his neck in an awkward and flexed position or the deckhand may lift heaving rigging. There may not be an accident or specific one day occurrence when an injury occurs but the cumulative effect of the repetitive work is nevertheless disabling.

When considering the causal relationship between the work and the injury, the Longshore Act and the Jones Act afford the laborer the opportunity to claim damages for an aggravation or exacerbation of what otherwise may be a naturally occurring condition. For example, many people develop arthritis as they age. Did the cumulative work "cause" the arthritis? Maybe not. Did the heavy repetitive work aggravate or hasten the develop of the arthritis? Probably. This is the most frequent medical issue I deal with in representing injured Jones Act seaman and Longshoremen.

When dealing with your physician you should be careful to fairly, accurately and thoroughly describe the nature of your heavy work. This may assist your physician with offering an informed decision on whether your work caused or aggravated, exacerbated or hastened the development of the condition.

Several northern Kentucky Ohio River counties will have a massive excavation project in their near future if Duke Energy obtains approval to construct a 19-mile natural gas pipeline beneath the Ohio River. The pipeline would be 20 inches in diameter made of carbon steel with a fusion bonded epoxy coating welded together in 40-foot segments and buried at least 3 feet deep.

As with any development close to the river, skilled workers will be needed to perform hazardous duties. The project will likely require numerous dockworkers (Longshoremen) and river crewmembers (Jones Act seaman). If you are injured on a river project, knowing your worker status is essential. Longshoremen and Jones Act Seamen may enjoy a recovery that is superior to State Workers' Compensation. An experienced maritime lawyer can evaluate your situation and guide you through what can be a confusing and difficult experience.

Longshoremen are donating their time and money to help the Haitian people after the devastating earthquake. The South Florida AFL-CIO and the ILA Local 1416 are collecting donations of water, nonperishable food, cleaning supplies and medicine to send to Haiti. The Longshoremen secured a ship and will use volunteers to load the ship bound for Port- au-Prince. Monetary donations can be made through the AFL-CIO Solidarity Center's Earthquake Relief for Haitian Workers' Campaign (http://www.solidaritycenter.org/) or the American Red Cross (http://www.redcross.org/).

Thank you to all our ILA brothers and sisters for their good works.

The Work Injury Litigation Group (workers compensation attorneys) are also collecting money to benefit Hatian earthquake victims. Please contribute to the relief fund through the charity of your choice.

Longshore workers' compensation injury claims occurring in West Virginia are handled by the United States Department of Labor Baltimore District Longshore office. Longshore workers' compensation injury claims occurring in Ohio are handled by the United States Department of Labor Houston District Longshore office. Longshore workers' compensation injury claims occurring in Kentucky are handled by the United States Department of Labor Jacksonville District Office.

Longshore District offices around the country are receiving additional funding to hire staff to address the backlog of cases. The Houston office, for example is in the process of brining on two additional claims examiners on board.

During the Bush 43 administration, Longshore District offices were gutted. District offices in locations such as Chicago and Philadelphia were closed. This created a severe slow down in the handling of claims.

The additional staff is a welcomed addition to the administrative process. The Obama administration has created a much more worker friendly environment. While the system is not as strong as it was during the Clinton administration, progress is being made.