A rigger on a crane barge was injured when he fell from a makeshift scaffolding.  He sued the vessel owner for negligence under the Jones Act, as well as his employer for cure (the cost of a back surgery) under general maritime law.  After a bench trial in the U.S. District Court for the Eastern District of Louisiana, the Court entered a judgment against the vessel owner and the employer.  Both appealed to the U.S. Fifth Circuit.

The vessel owner alleged several errors on appeal, including the calculation of future lost wages.  The Court held that future lost wages must be based upon a seaman’s statistical average work-life expectancy unless there was evidence that a particular person, by virtue of health or occupation, was likely to live and work shorter or longer than average.  In assigning future lost wages, the District Court simply adopted an age somewhere in the middle of the high and low work-life expectancies presented by the two expert economists.  Because there was no evidence that the plaintiff might live and work longer than average, the Fifth Circuit applied the statistical retirement age presented by the plaintiff’s expert, thus reducing future lost wages by nearly $100,000.00.

The Court also affirmed the employer’s responsibility for payment of the lumbar laminectomy and fusion surgery.  The employer’s physician contested the medical necessity of the surgery, but the Court found the procedure relieved the plaintiff’s pain and was therefore curative in nature and required under the employer’s maintenance and cure obligations.

Barto v. Shore Construction