How to Stop Injured Vessel Crew from Calling My Law Firm
Many expensive marine injury lawsuits can be avoided. Here’s how.
By Frederick B. Goldsmith, Managing Member, Goldsmith & Ogrodowski, LLC
For 20 years, I represented operators of OSVs, jack-ups, semi-submersibles, oil and gas production platforms, harbor tugs, towboats and barges in state and federal court personal injury litigation arising in the Gulf of Mexico, across the Great Lakes and on the inland waterways. For the last decade or so, I have been representing injured crew. In the case of a death or serious injury, sometimes there is little a vessel operator can do to prevent being sued. In my experience, though, many expensive lawsuits could have been avoided had the marine employer handled the situation differently.
1. Treat the injured worker as you would treat a close family member.
When a vessel crewmember is injured, they become, to the claims personnel at many companies, the enemy, a liability, someone to manage, surveil and treat with suspicion. While I understand some companies may have experienced exaggerated or even manufactured claims, and so their guard is up, when every injured worker is treated with disrespect and suspicion, the company sets a tone companywide. Coworkers of the injured worker witness how poorly their colleagues are treated and quickly realize they are not all “valued team members,” as the company newsletter proclaims. If every manager in the company, afloat and ashore, would instead treat injured crew in the same manner as they would treat a close family member, a different, positive tone would be set companywide. The injured worker and his or her family are more likely to understand accidents happen and work with the company through the aftermath, if they are treated with care and respect. A company does this by making it clear through their words and actions the company’s primary concern is for the injured worker to receive, as soon as is reasonably practicable, the best and most appropriate medical care available.
2. Do not downplay the injury.
46 CFR § 4.05-1(a)(6) mandates that "[i]mmediately after the addressing of resultant safety concerns, the owner, agent, master, operator or person in charge, shall notify the nearest Sector Office, Marine Inspection Office or Coast Guard Group Office whenever a vessel is involved in a marine casualty consisting in ... [a]n injury that requires professional medical treatment (treatment beyond first aid) and, if the person is engaged or employed on board a vessel in commercial service, that renders the individual unfit to perform his or her routine duties….” I have routinely litigated cases where the vessel captain or pilot immediately reported the Coast Guard-reportable injury to shoreside management, but then they or management chose not to notify the Coast Guard. I have seen this mindset to downplay the injury then manifest itself in how the injured worker is treated. Instead of immediately evacuating the man or woman to an emergency room, the worker is often asked if they are okay with riding the boat for several hours until the vessel arrives at its next intended port. Most injured workers want to be a team player, so they will typically not object. Nevertheless, the injured worker gets the message the company has sent: “Even though you are so badly injured you cannot work, and even though you are in serious pain, it would be most efficient and cost-effective for us if you wait several hours.” Would you do this to your spouse, son, daughter, father or mother? The injured worker and his or her family quickly learn the company’s schedule and dollars take priority. The injured worker and their family then start thinking they need a lawyer to receive appropriate medical care. I have received such calls for help numerous times. Why do companies do this? Some companies have a bonus program where the lack of reportable or lost-time injuries factors-into the bonus all employees receive. Some companies want to protect their injury statistics. Some companies think the injury will just go away. Some companies send workers with seriously injured backs to a chiropractor, instead of to an orthopedic surgeon who would have ordered an MRI which would have identified a herniated disk. In downplaying the injury, the company has alienated the injured crewmember and his or her family. And, by not reporting the incident to the Coast Guard, the company has also implicitly told this agency, which often learns of the marine casualty anyway, this company will try to hide reportable events on their vessels and thwart the federal government’s investigations.
3. Try to find less strenuous work ashore for the injured crewmember.
There is no light duty work on commercial vessels. In the event of an emergency, all crewmen must be able to assist with work like launching a lifeboat, handling a charged fire hose and assisting with recovering crew who have fallen overboard. But, if a company has an injured crewmember who is a good worker, and they will recover sufficiently to continue to be able to perform, albeit in a less strenuous role, why not continue to employ them, and tell the worker this is the company’s sincere plan while the worker is still recovering medically? What would you do if you were making good money, were injured on the job and could then no longer provide for yourself and your family?
4. Stop underpaying and fighting maintenance and cure.
Maintenance and cure is similar to what shore-based injured workers receive via state workers’ compensation laws: their medical bills are paid, and they receive money to continue to be able to make ends meet. Some companies have short- and long-term disability plans which ease the financial strain of a workplace injury. Many do not, and thus they only pay what the general maritime law requires: maintenance (the seaman’s reasonable living expenses) and cure (medical care). The problem is maintenance is minimal. It never covers an injured crewmember’s actual living expenses, including vehicle loan payments and auto insurance. Some companies make supplemental wage payments to injured crew in exchange for an agreement to receive a credit toward lost future wages in the event of a lawsuit. But most injured crew do not receive STD, LTD or supplemental wages. They cannot pay all their bills while recovering from their injuries. They watch helplessly as their truck is repossessed. Some companies try to restrict what doctors their injured crew can see and where, sometimes improperly requiring the seaman to see the company’s choice of physician several hours from the worker’s home. The employee feels pushed around. Disrespected. Then they or their spouse call me.
About the Author:
Fred Goldsmith (email@example.com) practices admiralty and maritime law with Pittsburgh-based Goldsmith & Ogrodowski, LLC. Licensed in Pennsylvania, West Virginia and Ohio, he formerly worked as a defense lawyer in Texas and as general counsel of a major harbor tug and shipyard operator. He is also a court-approved mediator.