Boatner v. C&G Welding, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IRA BOATNER CIVIL ACTION

v. NO. 18-10043

C&G WELDING, INC., ET AL. SECTION “F”

ORDER AND REASONS

Before the Court is the motion of C&G Welding and Shore

Offshore for partial summary judgment dismissing Ira Boatner’s

claim for maintenance and cure. For the reasons that follow, the

motion is GRANTED.

Background

This is a Jones Act case that arises from a shoulder injury

a rigger suffered while lifting a bundle of cable slings aboard a

barge. The motion before the Court raises one question: Has the

rigger forfeited his right to maintenance and cure by skipping

over 75% of the physical therapy sessions his doctor deemed

“absolutely critical” to his recovery? He has.

Ira Boatner worked as a rigger for C&G Welding aboard a

derrick barge owned by Shore Offshore. He tore his left rotator

cuff while lifting a bundle of cable slings. C&G Welding promptly

paid him maintenance and cure.

Four months after his injury, Boatner visited a surgeon, Dr.

Felix Savoie. Dr. Savoie recommended that Boatner undergo

arthroscopic surgery. He noted that Boatner would “require 6 months

of physical therapy to return to his heavy-duty occupation” after

the surgery. It was “absolutely critical,” he added, that “therapy

once started some 6-8 weeks post-surgery not be interrupted.”

Two months after that visit, Dr. Savoie performed

arthroscopic surgery on Boatner’s left shoulder. It succeeded. To

ensure the shoulder kept improving, Dr. Savoie ordered Boatner to

complete eighteen sessions of physical therapy. Boatner did not

comply: He attended just six sessions, citing “transportation”

issues. He says he relied on a friend for transportation because

he wrecked his car; when his friend moved, he lost his ride to

therapy. He did not tell anyone at C&G Welding about his

transportation troubles.

Ten months after his surgery, Boatner saw Dr. Savoie for a

follow-up. Dr. Savoie said Boatner’s shoulder was “not quite as

good as I had hoped because therapy was discontinued.” By then,

Dr. Savoie “thought [he] would be releasing” Boatner to return to

work. Instead, Boatner’s shoulder health was deteriorating. To

prevent further deterioration, Dr. Savoie again ordered Boatner to

attend physical therapy. But Boatner——again——failed to attend. He

skipped sixteen of the eighteen sessions prescribed this second

round. In total, he has missed twenty-eight of thirty-six physical

therapy sessions——over 75% of them

Boatner sued C&G Welding and Shore Offshore under the Jones

Act and general maritime law. He says his shoulder injury was

caused by the negligence of the defendants and the unseaworthiness

of the barge. He asks for punitive and compensatory damages,

attorneys’ fees, and payments of maintenance and cure.

Now, C&G Welding and Shore Offshore move for partial summary

judgment dismissing Boatner’s claim for maintenance and cure.

I.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(a). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017) (citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003). Ultimately, to avoid summary

judgment, the non-movant “must go beyond the pleadings and come

forward with specific facts indicating a genuine issue for trial.”

LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th

Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

II.

C&G Welding and Shore Offshore move for summary judgment

dismissing Boatner’s claim for maintenance and cure. Their motion

turns on the question whether Boatner has forfeited his right to

maintenance and cure by “willfully rejecting” or “unreasonably

refusing” medical care.

A.

A Jones Act employer owes an “absolute, non-delegable duty”

to pay maintenance and cure to a seaman who “becomes ill or suffers

an injury while in service of the vessel.” In re 4-K Marine,

L.L.C., 914 F.3d 934, 937 (5th Cir. 2019). “Maintenance” is “a per

diem living allowance for food and lodging.” Id. at 937. “Cure” is

“payment for medical, therapeutic, and hospital expenses.” Id.

A seaman forfeits his right to maintenance and cure in “well-

defined and narrowly limited circumstances.” Oswalt v. Williamson

Towing Co., 488 F.2d 51, 53 (5th Cir. 1974). Two circumstances are

relevant here.

The first is when the seaman “unreasonabl[y] refus[es] to

accept medical care.” Id. at 53 (citing Brown v. Aggie & Millie,

Inc., 485 F.2d 1293 (5th Cir. 1973)). When the seaman “voluntarily

stops short” of maximum medical improvement by “refusing medical

attention,” the “justification for the payments likewise ceases.”

Oswalt, 488 F.2d at 54 (citing Brown, 485 F.2d at 1293).

The second is when the seaman “willful[ly] reject[s]” the

“recommended medical aid.” Coulter v. Ingram Pipeline, Inc., 511

F.2d 735, 737 (5th Cir. 1975). This rule, though, is “not

inexorably applied.” Id. at 737. For example, a seaman does not

forfeit his right to maintenance and cure if he has “reasonable

grounds for refusing care.” Id. Nor will forfeiture follow if

“extenuating circumstances” make his “failure to follow the

prescribed regimen either reasonable or something less than a

willful rejection.” Id. at 737-38.

B.

Invoking these authorities, C&G Welding and Shore Offshore

contend that Boatner forfeited his right to maintenance and cure

by failing to attend over 75% of the physical therapy sessions his

surgeon ordered.

The Court agrees. Boatner knew that physical therapy was

“absolutely critical” to his recovery yet skipped twenty-eight of

thirty-six sessions. He claims his lack of “transportation”

prevented him from attending, but the excuse is an unreasonable

one. He revealed that transportation was a problem only when

deposed; by then, he had missed twelve sessions. And he is still

skipping sessions. As recently as July 9, 2020, while this motion

was pending, Boatner no-showed for a session. His repeated failure

to attend physical therapy amounts to an “unreasonable refusal to

accept medical care.” Oswalt, 488 F.2d at 53. He has, in effect,

“quit participation in a course of therapy already begun,” id. at

53-54, and his truancy has harmed his shoulder health. Had he

attended physical therapy, his doctor says, he would have recovered

by October 2019. It is now July 2020.

Boatner does not dispute that he missed twenty-eight of

thirty-six physical therapy sessions. Instead, he says that

“extenuating circumstances” excuse his absenteeism. He is

mistaken. To excuse the skipped sessions, the “extenuating

circumstances” must make his “failure to follow the prescribed

regimen reasonable or something less than a willful rejection.”

Coulter, 511 F.2d at 738. As noted, his “transportation” troubles

do not render reasonable his failure to attend over 75% of the

physical therapy sessions his surgeon ordered. Boatner offers no

reasonable explanation for his failure to attend twenty-eight

sessions; that is because there is but one reasonable explanation,

and it is unfavorable to him: He deliberately failed to attend

the sessions——that is, he “willful[ly] reject[ed]” them. Coulter,

511 F.2d at 738; see also “Willful,” AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE at 1982 (5th ed. 2016) (“Said or done on purpose;

deliberate”).1

1 A Justice of the United States Supreme Court and a leading

lexicographer have said that the American Heritage Dictionary of

the English Language is among “the most useful and authoritative

Boatner’s second argument is as flawed as his first.

Abandoning “extenuating circumstances,” he says summary judgment

is improper because no evidence shows that the sessions he missed

were “significant enough.” He is again mistaken. His surgeon, Dr.

Savoie, said “lack of therapy” is the reason Boatner has not

returned to work. According to Dr. Savoie, Boatner would have

recovered by October 2019——over eight months ago——if Boatner had

completed the scheduled sessions. The skipped sessions carry clear

significance, and Boatner’s contention to the contrary lacks

merit.2

In skipping session after session, Boatner “voluntarily

stop[ped] short” of maximum medical recovery. Oswalt, 488 F.2d at

54. Paying him maintenance and cure is no longer justified. See

id. Because the justification for the payments no longer exists,

the “interests and principles protected by the rule of forfeiture

would be served . . . by its application” here. Coulter, 511 F.2d

at 739. The Court thus holds that Boatner has forfeited his right

to receive further payments of maintenance and cure. See, e.g.,

for the English language” for the period of 2001 to the

present. See Antonin Scalia & Bryan A. Garner, A Note on the Use

of Dictionaries, 16 Green Bag 2d 419, 423, 427-28 (2013).

2 Boatner says he missed some sessions “due to other issues

including the physical therapy facility cancelling the remaining

visits and requiring Mr. Boatner to get a new order.” He cites no

record evidence to support the assertion.

Atl. Sounding Co. v. Vickers, 782 F. Supp. 2d 280, 286 (S.D. Miss.

2011) (seaman forfeited right to further payments of maintenance

and cure because he failed to complete the “physical therapy

regimen” his doctor prescribed), aff’d, 454 F. App’x 343 (5th Cir.

2011).

IIl.

Boatner forfeited his right to maintenance and cure by failing

to attend twenty-eight of the thirty-six physical therapy sessions

his surgeon ordered. Accordingly, IT IS ORDERED: that C&G Welding

and Shore Offshore’s motion for partial summary judgment is

GRANTED. Boatner’s claim for maintenance and cure is DISMISSED

with prejudice. No further payments need be made.

New Orleans, Louisiana, July 30, 2020

MARTIN[J|L. C. (FELDMAN

UNITED STAWES DISTRICT JUDGE