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A Jones Act Cautionary Tale: Learn From This River Terminal Worker's "Nightmare."

If you get hurt on the job and think that your river employer will explain all of your rights to you, you're wrong. I was recently referred a new client - we'll call him Steve - who just experienced the way river employers treat injured workers. Steve was convinced that he didn't need to call an attorney when he got hurt. He was wrong.

Steve had worked for the river terminal in Southern Illinois for over twenty years. Although the company called him an "operator," he was actually assigned to work on the company's tug. He performed deckhand work moving barges and facing/unfacing the tug. He worked with another worker and a pilot. Despite the label given to him by the terminal, he was a deckhand.

Steve's accident happened because the terminal required the tug to be faced to the river bank that was full of rip rap, or large rocks. Steve had to stand on the rip rap to unface the boat. When one of the rocks shifted, Steve fell into the water, injuring his shoulder.

The accident should never have happened. According to regulations, the terminal was required to provide a safe walkway and working surface for Steve's work. The terminal was cited for this violation after the accident.

The terminal tried to get away with this. They didn't report the incident to the river authorities. They were later cited for this violation as well. Then, they sent Steve to a company doctor in Missouri, who told Steve that the injury was no big deal, but she would order an MRI. The terminal told Steve it was okay to get the MRI, which showed a full thickness rotator cuff tear.

Even though they approved the MRI, once the results came back, the terminal refused to pay the bill. Instead, they said that Steve's condition was pre-existing, even though that same company doctor had given him a clean bill of health six months earlier.

But that's not all. The terminal filed Steve's case under the Longshore and Harbor Workers' Compensation Act, or LHWCA. This is workers' compensation for land-based harbor workers. River employers prefer the LHWCA because the Act does not provide compensation for pain and suffering or loss of earning capacity. It also bars any lawsuits against the employer for an unsafe workplace. In other words, by filing it as a Longshore case, the river terminal tried to avoid having the case heard by a judge or jury. That's why they classified Steve as an operator, instead of a deckhand.

While Steve was trying to talk to human resources about how he was going to pay for his treatment, a company HR person told him that, if he got an attorney, she would be his "worst nightmare."

But before Steve could see an attorney, the nightmare had already started. Three weeks after the accident, the terminal fired Steve based on a trumped up theft charge. Steve, like other co-workers, including his boss, made a hose at work and took it home with him. The terminal saw that on surveillance video and used it as an excuse to fire him. They did this to a 20 year veteran worker who had never had any type of injury claim before. Steve even told his boss that everyone, including the boss, had done the same thing. Steve was told: "that was before." In other words, that was before Steve suffered an injury.

Within 48 hours after meeting Steve, we obtained the citations and filed a Jones Act claim against the employer in federal court. Here's why:

30% of Work on River

First, when a river worker of any type, even one employed by a land-based terminal or shipyard, spends some of his time working on boats, barges, work flats, or other platforms that can move on the water (even if they do not regularly move), the worker can avoid the limited remedies of the LHWCA and take advantage of the remedies available under maritime law, including the Jones Act. The United States Supreme Court has suggested that workers who spend "approximately 30%" of their time on the water can qualify as a Jones Act "seaman." Remember, a vessel under the Jones Act does not just mean a boat or barge - it can also mean work flats or other platforms.

Featherlight Causation

Second, the duties that a Jones Act employer owes a river worker are broad and the burden of proof for the workers is "feather light." An employer has a non-delegable duty to provide a safe place to work, safe equipment, safe work rules, and properly trained co-workers. If an employer's breach of these duties causes an injury in the slightest, the worker can prevail.

Full Recovery; Not Limited Like Comp or LHWCA

Third, a Jones Act claim provides compensation for pain and suffering, past and future medical expenses, lost wages, and loss of earning capacity. Wage replacement and compensation for medical expenses fall under the Maritime remedies of maintenance and cure, respectively.

Injured Worker Chooses Venue For Trial

Fourth, a Jones Act claim can be filed as a lawsuit directly against the employer in state court, even if the employer is incorporated in a different state. For example, we have filed Jones Act claims in Madison County, Illinois against a fleet service in Cincinatti, Ohio. Like with "Steve's" case, a Jones Act claim can also be filed in federal court to be heard by a judge without a jury. These options allow us to place the case in the best venue for the claim.

This "nightmare" did not have to happen. Steve did not have to go see the company doctor. Steve did not have to give statements to the employer. Steve did not need to go it alone against the river terminal while the terminal was building its defenses, filing the claim as a LHWCA instead of a Jones Act claim, and trumping up a bogus reason to fire him. We are now on the case. We already have the citations, the medical records, and we've filed suit.

Learn from this nightmare. If you are hurt on the river, we can help. You don't have to go it alone. Not all river employers do this. But they all defend injury claims vigorously. We can help.

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