by Matthew H. Ammerman
on March 10th, 2012
The LHWCA’s Section 20 presumption in favor of the worker flips the burden of proof. If the presumption is not rebutted by the employer with substantial evidence, the worker will be entitled to benefits. Disputes often center on causation-- was the problem really caused or aggravated by work? To evaluate, determine if there is proof (not speculation) that the worker’s symptoms are not caused by work. This recent unpublished opinion from the Fifth Circuit is an example of what happens when the employer does not produce sufficient rebuttal evidence. Island Operating Co. v. Dir. OWCP [Doucet]
, 2012 U.S. App. LEXIS 3714 (5th Cir. February 24, 2012).
To get the ball rolling, all the worker has to do is credibly show that (1) he sustained physical harm or pain, and (2) an accident occurred in the course of employment, or conditions existed at work, which could have caused the harm or pain. Once the presumption is invoked, the employer has to rebut the presumption with substantial evidence that the worker’s symptoms were not caused by work. If the employer does that
, the Section 20 presumption is gone. The worker then has the burden to win benefits by showing entitlement by the greater weight of the credible evidence.
Brian Doucet worked as a D operator for Island Operating Company on a fixed offshore oil platform on the Outer Continental Shelf. Doucet had a heavy work day on July 15, 2008, lifting, carrying, and exchanging fire extinguishers. He woke up the next day suffering back pain. Doucet says he told the lead man his back hurt but did not report an injury. Administrative Law Judge Patrick Rosenow states in his findings that Doucet was credible in his explanation that Doucet thought he slept wrong and did not relate his pain to the fire extinguisher work. This despite an
Island Operating supervisor who testified that Doucet told him it was an old back injury and he might have aggravated it. Also, prior to the incident Doucet told a doctor he was seeing for flu symptoms that he had a spinal condition that occasionally hurt. However, Doucet passed a pre-employment physical and there was no evidence of back complaints prior to the fire extinguisher incident. The judge found that Island Operating had not rebutted the presumption of causation, and, as a result, Doucet was entitled to medical and total disability benefits.
Island Operating and its insurance carrier LWCC appealed, arguing that Judge Rosenow should have found that there were preexisting back injuries and that the presumption was rebutted. The Benefits Review Board and Fifth Circuit affirmed the award. Appellate bodies cannot re-weigh evidence or determine facts. Appellate review is limited to determining whether evidence exists to support the ALJ's findings. The Fifth Circuit affirmed, holding that there was evidence in the record supporting the ALJ’s findings because:
Doucet and his wife testified that Doucet never had back problems prior to July 18, 2008.
Doucet testified that he had no trouble completing pre-employment assessment.
The ALJ found Doucet’s testimony "very credible."
Doucet never missed a day of work because of back pain prior to the day in question.
Although the record contained some conflicting evidence of preexisting back problems, the appeals court could not re-weigh that evidence.
Bottom line: the employer’s threshold to rebut the presumption is low but must be met by producing relevant evidence. Here, the trial judge thought the limited evidence of a prior back injury was too scant to rebut the presumption.
by Matthew H. Ammerman
on March 8th, 2012
Archie Crawford fell while getting out of a helicopter onto an offshore oil platform on March 12, 2008. Crawford's knee buckled, and he fell down two stairs. The next morning his left foot and three fingers on his left hand felt numb. Crawford asked to go see a doctor. He claimed that request was denied by his supervisor. By March 14, 2008, he was experiencing numbness in his upper body and said he continued to ask to see a physician landside. Five days after his incident, he was taken by helicopter to Lafayette General Medical Center where physicians diagnosed him with a stroke. Island Operating Co. v. Dir., Office Worker's Comp. Programs
, 2012 U.S. App. LEXIS 3037 (5th Cir. Feb. 16, 2012)(unpublished).
Crawford’s employer and its LHWCA carrier, Louisiana Workers' Compensation Corporation (LWCC), argued Crawford’s stroke was a preexisting condition that was unaffected by his work. Crawford had pre-existing conditions that could have caused or contributed to his stroke: coronary artery disease, diabetes, cardiomyopathy, hyperlipidemia, tobacco use and high blood pressure. Crawford v. Island Oper’g Co., et al
., BRB No. 10-0688 (July 8, 2011).
The Section 20 presumption determined this case. Administrative Law Judge Rosenow found that the stroke was unrelated to his work. However, Judge Rosenow found that Crawford invoked the Section 20 presumption of compensability because his stroke was aggravated by the delay in his receipt of treatment because Crawford was unable to leave employer’s platform. The aggravation rule requires an employer "to compensate an employee for the full extent of the employee's disability, including any preexisting disability that the work-related injury worsens." Strachan Shipping Co. v. Nash
, 782 F.2d 513, 515 (5th Cir. 1986). Judge Rosenow found LWCC offered no evidence to rebut the presumption of an aggravation, and, therefore, the stroke was compensable.
LWCC’s argument on appeal was that Section 20 presumption should not have been invoked -- delay did not make Crawford’s stroke worse because the damage was already done. Dr. Wael Karim, a neurologist who treated Crawford, testified that Crawford’s stroke would cause permanent and irreversible damage, except in some cases where blood thinner is administered within three hours of the stroke's onset. However, the Fifth Circuit said that Dr. Karim also testified that a stroke victim should receive treatment as soon as possible to possibly reverse some of the damage caused by the stroke. Also, post-stroke treatment includes controlling a patient's blood pressure, diabetes, and stopping the patient from smoking to try to avoid further damage.
Judge Rosenow found Crawford’s stroke was progressed in part by delay. The Fifth Circuit affirmed the award of LHWCA benefits because LWCC failed to rebut the presumption of compensability. The appeals court said Crawford’s case was not like Charpentier's heart attack – an earlier case decided by the Fifth Circuit. The medical evidence in that case showed that Charpentier’s heart attack would have escalated to a fatal cardiac arrest no matter where he was at that time, with the possible exception of the hospital." Ortco Contractors, Inc. v. Charpentier
, 332 F.3d 283, 291 (5th Cir. 2003). That same medical evidence was not present in Crawford’s case to rebut the presumption.Island Operating Co. v. Dir., Office Worker's Comp. Programs
, 2012 U.S. App. LEXIS 3037 (5th Cir. Feb. 16, 2012)(unpublished).
by Matthew H. Ammerman
on February 19th, 2012
An employer takes a worker as they find him. If it happens at work – you bought it. Wait. What about medical problems that arise after the work injury? To avoid paying for non-compensable conditions arising after the work injury, an employer must separate the non-compensable condition from the compensable condition. Most importantly, the employer must prove
On January 27, 2012, the Benefits Review Board confirmed in an unpublished opinion that when a worker sustains a non-work-related injury following a work-related injury, such as a stroke, the employer is relieved of liability for disability due to this intervening cause. Barnes v. Kinder Morgan, Inc
., BRB No. 11-0339, Slip. Op. at 3 (January 27, 2012)[citation omitted]. However, the employer remains liable for any disability that is related to the original work injury. Here are two examples from cases decided under the LHWCA.
Rodney F. Barnes, Jr. fell on ice at work on January 6, 2004, and tore his left rotator cuff. He returned to light-duty work for six months and then was off work due to surgery. He returned to full-duty work on December 15, 2004, after recovery from the shoulder surgery. Barnes was told to “self-limit” for activities that might hurt his shoulder. Before he reached maximum medical improvement (MMI), he had a stroke. The administrative law judge awarded continuing permanent partial disability benefits despite the stroke. On appeal, the Benefits Review Board said that Barnes bore the burden of showing permanent loss of wage-earning capacity due to the shoulder injury; the stroke is not relevant to that determination. Barnes,
Slip. Op. at 6.
The key proof: Barnes worked an increasing number of hours before his stroke, logging 14 hours the last day before his stroke on December 26, 2004. Barnes’ treating physician Dr. Brenneke concluded on February 2, 2005 -- after his stroke -- that Barnes’ shoulder reached MMI, and the doctor did not impose any work restrictions for the shoulder. The Board rejected the administrative law judge’s finding of disability after Barnes reached MMI. Barnes was disabled due to his stroke. Barnes had no shoulder-related permanent partial disability after February 2, 2005. The trial judge’s award of benefits after that date was reversed.
In an earlier, more complicated case, J. Tracy suffered compensable cumulative trauma to his hands and arms from work with an employer, Keller Foundation, up to the time he left in 1997. He had a heart attack in 2002 while he was working as a seaman for another employer. Therefore, Tracy was not covered by the LHWCA for the 2002 heart attack. Tracy sought total disability compensation for his upper extremity problems caused by his work at Keller. Keller showed evidence of suitable alternative employment as a security guard, which the administrative law judge found Tracy was capable of doing. The ALJ properly found – and the Board affirmed – that Tracy’s disability from his heart attack should be excluded. He should be treated as if he did not have disability from his heart attack. J.T. [Tracy] v. Global Int’l Offshore, Ltd
., 43 BRBS 92 (2009). Tracy’s heart attack was a subsequent non-covered event, the restrictions from which are severable from those related to the work-related arm injury. The Board affirmed the finding that he was temporarily and partially disabled from the 1997 hand/arm restrictions, rejecting Tracy's argument that he was totally disabled.
How do you dissect and separate the non-compensable disability? In a wage-loss (general injury) claim, doctors should be careful to specify their work restrictions on a Work Restriction Evaluation (OWCP-5) as if the worker did not have the subsequent condition. Employers should be vigilant to ensure disability from the non-work-related condition does not creep into the work restriction due to inattention by the doctors. Vocational counselors should find jobs that match the worker’s restrictions associated with the work-related condition alone without consideration from disability from the post-injury event. To be successful, dissect the disability between the compensable and non-compensable condition. Support your position with medical and vocational evidence to ensure a good result.
by Matthew H. Ammerman
on January 22nd, 2012
Leon Manderson was a licensed engineer aboard a Chet Morrison Contractors (CMC) dive vessel operating in the Gulf of Mexico. In January 2008, Manderson, aboard another CMC dive vessel, got sick and left the vessel. He was hospitalized for ulcerative colitis, diabetes, and a liver condition. He was a seaman and sued CMC under the Jones Act and general maritime law.
Manderson alleged that his colitis, etc. was aggravated due to overwork. He said CMC made him work 12 hours per shift, failed to provide qualified personnel to relive him from duty, and failed to post a watch schedule in violation of Coast Guard regulations.
In a non-jury trial, the trial judge rejected all of Manderson's negligence claims because CMC did not violate Coast Guard regulations, and, even if it did, such violations did not cause Manderson's alleged injuries. Manderson v. Chet Morrison Contrs., Inc
., 2012 U.S. App. LEXIS 18 (5th Cir. Jan. 3, 2012).I. Manderson cannot recover retail charges if his doctors accepted a discount
However, the trial judge found Manderson's colitis that manifested at work compensable under the cure obligation and awarded $14,680 for maintenance and $169,691.06 for cure. The judge also found CMC acted "in an arbitrary and capricious manner in failing to pay maintenance and cure" and, as a result, awarded Manderson $110,950 in attorney's fees and costs on those claims.
Almost $100,000 of the medical award consisted of undiscounted medical charges by Manderson's doctors. 5th Circuit rejected that award -- it held that a seaman cannot recover the full retail prices charged by his doctors if those bills were satisfied by the employer's insurer's payment of adjusted amounts.
Manderson should only recover what was "actually incurred" rather than obtain a higher recovery based on his doctors' retail charges. Manderson
at 18. This is important because often medical charges are used as the numerical basis for pain and suffering damages.
As an aside, the Texas Supreme Court recently held the same pursuant to a state law only allowing recovery for medical charges that were actually paid or incurred. Haygood v. De Escabedo
, 2011 Tex. LEXIS 514 (Tex. 2011).II. No attorneys' fee award against CMC says appeals court
The 5th Circuit also rejected the trial judge's award of over $100,000 in attorney's fees to Manderson. Fees should only be awarded if the employer "has exhibited callousness and indifference to the seaman's plight." The employer's actions must be as "egregiously at fault," "recalcitrant," "willful," and "persistent."
CMC was not arbitrary and capricious in denying cure. Its underwriter promptly investigated the claim when filed. Though ultimately found liable for maintenance and cure, CMC showed that it was not arbitrary in denying it. There was a causation issue -- Manderson had prior flare-ups of colitis outside of work. He filed for private disability claiming his ulcerative colitis was not work-related and did not fill out a work injury report after being hospitalized. Manderson also failed to reveal his pre-existing history of high glucose levels and diabetes to CMC at the time he was hired. In addition, one of his three conditions -- Hepatitis C and related liver transplant -- was found to not be compensable. CMC also fulfilled its duty to investigate by promptly referring the claim to its underwriter who investigated the matter.
The 5th Circuit's holding highlights the importance of: (1) a prompt investigation; and, (2) the employer supporting its decision to deny maintenance and cure with credible evidence.Manderson v. Chet Morrison Contrs., Inc
., 2012 U.S. App. LEXIS 18, 1-28 (5th Cir. Jan. 3, 2012)
by Matthew H. Ammerman
on January 17th, 2012
On January 11, 2012, the Supreme Court affirmed the 9th Circuit's opinion that a worker does not have to be injured on the Outer Continental Shelf to be entitled to Outer Continental Shelf Lands Act's federal worker's compensation benefits of the Longshore & Harbor Workers' Compensation Act. Pac. Operators Offshore, LLP v. Valladolid
, 2012 U.S. LEXIS 577 (U.S. Jan. 11, 2012).
The full opinion is here: http://www.supremecourt.gov/opinions/11pdf/10-507.pdf
The Court adopted a "substantial nexus
" test. The worker must be injured as a result of operations on the Outer Continental Shelf (Shelf). There must be a "substantial nexus
" (significant causal link) between the injury and his employer's operations on the Outer Continental Shelf conducted for purposes of extracting natural resources. That phrase was so important Justice Clarence Thomas said it twice in the final paragraphs of his opinion. In a concurring opinion, Justice Scalia threw a few punches at the Ninth Circuit and questioned why Justice Thomas agreed with an obscure "substantial nexus" phrase instead of a legal concept that has legal pedigree - proximate cause.
The OCSLA, passed in 1953, adopts the workers' compensation benefits of the Longshore Act for workers injured "an employee resulting from any injury occurring as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources...." 43 U.S.C. Sec. 1333(b). The Shelf starts nine nautical miles offshore Texas and Florida and three nautical miles everywhere else. Congress intended to cover offshore workers on the Shelf who did dangerous work and who may not be entitled to state workers' compensation benefits.
Here, Juan Valladolid was a California roustabout for his employer Pacific Operators in its oil exploration and extraction business. Valladolid spent about 98 percent of his time on one of Pacific's offshore drilling platforms performing maintenance. However, Valladolid was killed on land while using a forklift to move metal scrap at Pacific's shoreside facility in Conchita.
Justice Thomas rejected the Third Circuit's loose "but-for" test because it could lead to coverage of those whose jobs have virtually no connection to extractive operations on the Shelf. Unfortunately, he also rejected the easy-to-apply situs-of-injury test of the Fifth Circuit. That test provided that workers could only be covered by the workers' compensation provisions of OCSLA if their injury occurred on or over the Shelf. Justice Thomas said the plain language of Section 1333(b) had no situs requirement, and Congress could have added one if it wanted to impose such a limitation.
Where does this leave us? It seems likely that a roughneck who trips and suffers injury while boarding a helicopter at his employer's landside heli-pad to go work on the Shelf is probably OCSLA-covered now and entitled to LHWCA benefits. The harder task is finding the outer limits of the new test on land. A creative claimant's lawyer could make the argument that a worker in Tomball, Texas (roughly 100 miles from the coast) injured while loading a blow-out preventer (BOP) on a truck to be transported to the Shelf should be covered under the substantial connection test.
A close reading of the Valladolid
case tells us that we should look to: (1) whether the worker's employer has operations on the OCS; and, if so, (2) if the injury had a "substantial nexus" (signficant causal link) to his employer's operations on the OCS. In the Fifth Circuit, this will likely lead to a close analysis of what the employer was doing on the Shelf
and whether the injury was significantly caused by it. Valladolid's widow must show on remand that piling up scrap metal on a shoreside facility (to be picked up by scrap metal vendors) has a substantial nexus to work on the Shelf.
There is no longer a situs-of-injury requirement, but there is a situs-of-operations requirement. There are still boundaries to Section 1333(b) OCSLA coverage. They have, however, been expanded from what we were accustomed to in the Fifth Circuit where most of the work on the Shelf takes place.
by Matthew H. Ammerman
on January 9th, 2012
In 2009, Congress amended the LHWCA to exclude those working on or dismantling a recreational vessel. This expanded on the 65-foot limitation that was previously in place. A lot of time has been spent on the regulations interpreting that amendmen
t, several of which have been changed to integrate the new exclusion. The bottom line: those who would otherwise be covered by the LHWCA are excluded if they are employed to build a recreational vessel under 65 feet in length or are employed to repair or dismantle any part of a recreational vessel in connection with the repair of such vessel. The worker has to be subject to coverage by state workers' compensation law for the exclusion to apply.The DOL's official email issued January 9, 2012, announcing the new regulations is here:
"WASHINGTON ‒ The U.S. Department of Labor’s Office of Workers’ Compensation Programs has issued a final rule implementing the Longshore and Harbor Workers’ Compensation Act’s exclusion for recreational vessel workers. The rule defines what constitutes a “recreational vessel” when applying the exclusion.
The LHWCA provides workers (or their survivors in the case of death) compensation for injuries related to maritime employment on the navigable waters of the United States or adjoining areas. Prior to 2009, workers who repaired or dismantled recreational vessels fewer than 65 feet in length were excluded from coverage if they were covered by a state workers’ compensation program. The American Recovery and Reinvestment Act of 2009 expanded this exclusion by eliminating the 65-foot limitation; post-amendment, workers who repair recreational vessels of any length or dismantle them for repair are excluded from LHWCA coverage if they are covered under a state workers’ compensation law. [emphasis added].
The final rule adopts several recommendations made by members of the public who commented on a notice of proposed rulemaking issued Aug. 17, 2010. The final rule generally uses the U.S. Coast Guard’s standards for defining a recreational vessel. The Labor Department has added two provisions to make it easier to apply these standards in the LHWCA context. First, a manufacturer or builder may determine whether a vessel is recreational within the meaning of the regulation based on the vessel’s design rather than on its end use. Second, noncommercial vessels that are recreational by design and owned or chartered by the federal or a state government fall within the recreational vessel definition.
Information regarding this regulation can be found at http://www.dol.gov/owcp/dlhwc/lsnewregulation.htm
The rule can be viewed on the Federal Register’s website at http://federalregister.gov/a/2011-32880
by Matthew H. Ammerman
on December 27th, 2011
Maintenance and cure are ancient remedies owed to any seaman who is injured or whose illness manifests while in service of the ship. (fn. 1). Specifically, “maintenance” is payment an employer must make to a seaman for food and lodging during a seaman’s recuperation from a work injury. “Cure” is medical treatment. Maintenance and cure should terminate when the seaman reaches maximum cure (MMI).
These FAQs focus on maintenance.Q. I am used to the Longshore Act. Is there a statute that says how much we have to pay in maintenance?
A. No, there is not a statute. A seaman’s legal right to maintenance and cure is based in “general maritime law,” which is federal common law decided by judges based on legal precedent. You look to U.S. Supreme Court and other federal court opinions in your jurisdiction for the law instead of a statute passed by Congress. The right to maintenance and cure is an implied term of any seaman’s employment that derives from general maritime law. (fn. 2).
As a practical matter, often judges look at maintenance rates prevailing in other cases as a starting point. But rates often vary on a case-by-case basis. Q. How much should I pay per day in maintenance?
A. It depends. If there is a collective bargaining agreement or employment contract that addresses maintenance, pay what the contract says.
If there is no contract, your job is a little harder. Often judges look to what they consider the prevailing rate from other judge’s opinions in the same area. A seaman need not present evidence of the reasonable rate; a court may take judicial notice of the prevailing rate in the district. But be careful. Those opinions or prevailing rates may not apply to your seaman. A seaman’s actual expenses should be compared to any alleged prevailing rate. If his expenses are below the prevailing rate for decent lodging and food, he should be paid the rate based on his actual expenses.
Traditionally, a seaman’s employer was responsible for making payments so that the seaman could get food and lodging equivalent to that on the ship. However, more recently the Fifth Circuit recognized that “courts have not required literal equivalence of facilities onshore and in the vessel.” (fn. 3). Instead, the seaman is entitled to no more and no less than the “reasonable costs of subsistence the seaman has incurred while recuperating on land.” fn. 4. The seaman is not entitled to maintenance rate based on the mortgage for a lavish house and food costs, and, by the same token, he cannot be paid a paltry rate based on someone living in a tent foraging for food.
The Fifth Circuit describes the proper procedure in 2001 in the Hall v. Noble Drilling (U.S.), Inc
. case (fn. 5):
Q. Can a seaman get maintenance payments based on how much he pays for food and lodging for his entire family?
- The seaman has to provide proof of what he actually incurs for food and lodging. If he is, for example, living with his parents and not incurring any expense for food and lodging, he is not entitled to maintenance payments. The seaman’s burden is light. The seaman’s sworn statement as to his monthly food and lodging expenses may be adequate. (fn. 6).
- Determine the reasonable rate of food and lodging for a single person in the seaman’s locale. You might consider awards of maintenance in similar cases or search the internet to obtain information from local YMCAs, reasonable long-term stay hotels, etc. to determine the cost of food and lodging for a single person.
- Compare the seaman’s actually-incurred expenses to the reasonable rate.
- If the seaman’s actual expenses for suitable housing and food are less than the reasonable daily rate you determined, then pay a maintenance rate based on his actual expenses. If the seaman’s actual expenses are more than the reasonable rate, then pay the reasonable rate.
A. No. A seaman may only recover the reasonable cost of his food and lodging -- not including his spouse or children. You may prorate his family’s food and lodging expenses if his individual expenditures cannot be proven, although the sum would be capped by reasonable cost of local food and lodging as discussed above. (fn. 7).Q. What kind of proof of monthly expenses should I ask for?
A. The seaman must provide "evidence to the court that is sufficient to provide an evidentiary basis for the Court to estimate his actual costs." (fn. 8). You might ask for a copy of a recent rent or mortgage payment, utility bill (not including telephone), and a grocery bill and then prorate that amount for the seaman’s actual monthly expenses divided by 30 days. Compare to an online sampling of low-cost lodging in the seaman’s locale.
A seaman risks non-recovery if he presents no information concerning his actual expenses for food and lodging. (fn. 9). But the seaman’s burden to produce evidence to support the amount of maintenance is light. (fn. 10).**Warning**
: failure to pay maintenance without a valid reason may result in the employer being held liable for punitive damages if the failure to pay is considered “willful and wanton.” (fn. 11). If your prompt investigation shows this is likely a compensable injury, you might consider paying a modest maintenance rate until the seaman produces his evidence of monthly food and lodging expenses.Q. What are some recent maintenance awards in the Fifth Circuit (Texas, Louisiana, or Mississippi)?
A. Historically courts have adopted standard maintenance rates with adjustments based on a seaman’s actual incurred living expenses, which may not exceed the hypothetical cost to live alone in the seaman’s hometown in modest housing.
This is a sampling of recent maintenance awards in the Fifth Circuit. Awards typically vary based on whether the seaman produced evidence of his actual expenses exceeding what the employer was already paying, and each case turns on its individual facts:2011
- $29.59 per day by Judge Vance in New Orleans, Louisiana (federal)(seaman’s actual expenses did not exceed reasonable amount). fn. 12.
- $35 per day by Judge Lemmon in New Orleans, Louisiana, based on parties’ agreement (seaman’s actual average expenses were $41.66 per day). fn. 13.
- $35 per day by Judge Fallon in New Orleans, Louisiana (federal). fn. 14.
- $40 per day by Judge Africk in New Orleans, Louisiana (federal)(evidence of monthly expenses submitted). fn. 15.
- $41.40 per day by Judge Barbier in New Orleans, Louisiana (evidence of monthly expenses submitted). fn. 16.
- $20 per day by Judge Fallon in New Orleans, Louisiana (federal). fn. 17.
- $35 per day by Judge Fallon (evidence of monthly expenses presented). fn. 18.
- $40 per day by Judge Haik in Lafayette, Louisiana (federal). fn. 19.
- $40 per day by Judge Lemmon in New Orleans, Louisiana (evidence of monthly expenses presented). fn. 20.
This blog post is not intended as legal advice. Each case is unique and results may vary depending on the facts of each case and what jurisdiction you are in. Please consult an attorney to address your individual case if warranted.References:
1. McCorpen v. Central Gulf S.S. Co
., 396 F.2d 547, 548 (5th Cir. 1968).
2. Vaughan v. Atkinson
, 369 U.S. 527, 532 (1962).
3. Hall v. Noble Drilling (U.S.) Inc
., 242 F.3d 582, 587 (5th Cir. 2001).
at 587 (emphasis added).
6. Yelverton v. Mobile Labs., Inc
., 782 F.2d 555, 558 (5th Cir. 1986).
9. Harper v. Zapata Off-Shore Co
., 741 F.2d 87, 91 (5th Cir.1984).
at n. 16 citing Yelverton v. Mobile Laboratories, Inc
., 782 F.2d 555, 558 (5th Cir.1986) (noting that “the evidence before the court often consists solely of the seaman's testimony”).
11. Atlantic Sounding Co., Inc. v. Townsend
, 129 S.Ct. 2561 (2009).
12. Ledet v. Smith Marine Towing Corp
., 2011 U.S. Dist. LEXIS 39842 (E.D. La. Apr. 4, 2011).
13. Naylor v. Atl. Sounding Co
., 2011 U.S. Dist. LEXIS 71278 (E.D. La. June 30, 2011)(Judge Lemmon also references what she contends is the prevailing rate of $39.46 per day in the New Orleans area).
14. Nelton v. Cenac Towing Co., LLC
, 2011 U.S. Dist. LEXIS 7129 (E.D. La. Jan. 24, 2011)
15. Borders v. Abdon Callais Offshore, LLC
, 2011 U.S. Dist. LEXIS 56260 (E.D. La. Apr. 25, 2011).
16. Martin v. Abdon Callais Offshore, LLC
, 2011 U.S. Dist. LEXIS 54970 (E.D. La. May 20, 2011)
17. Everett v. Atlantic Sounding Co.
, 2010 U.S. App. LEXIS 15131 (5th Cir. 2010).
18. Mayne v. Omega Protein, Inc
., 370 Fed. Appx. 510, 516 (5th Cir. La. 2010).
19. Manderson v. Chet Morrison Constrs., Inc
., 2010 U.S. Dist. LEXIS 89430 (W.D. La. 2010).
20. Mier v. Wood Towing, L.L.C
., 2010 U.S. Dist. LEXIS 53324, 16-18 (E.D. La. May 28, 2010).