Britton v. U.S.S. Great Lakes Fleet, Inc.

• Decision Date: 09 September 2002
• Docket Number: No. 01-3567.,01-3567.
• Citation: 302 F.3d 812
• Parties: Robert N. BRITTON, Appellant, v. U.S.S. GREAT LAKES FLEET, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 812

302 F.3d 812

Robert N. BRITTON, Appellant, v. U.S.S. GREAT LAKES FLEET, INC., Appellee.

No. 01-3567.

United States Court of Appeals, Eighth Circuit.

Submitted: June 10, 2002.

Filed: September 9, 2002.

Dennis M. O'Bryan, argued, Birmingham, MI, for appellant.

Eileen M. Joyce, argued, Cleveland, OH, for appellee.

Before MORRIS SHEPPARD ARNOLD, HEANEY and MURPHY, Circuit Judges.

HEANEY, Circuit Judge.

In this maritime law case, Robert N. Britton appeals the district court's order to grant summary judgment in favor of U.S.S. Great Lakes Fleet, Inc. ("Great Lakes"). He asks us to consider the following issues: (1) whether his failure to reveal an August 1997 back injury constituted a misrepresentation of his physical condition to Great Lakes, precluding an award of maintenance and cure; (2) whether his testimony regarding the number of available hands on deck at the time of his injury in order to prove negligence under the Jones Act and unseaworthiness was sufficient to create a genuine issue of material fact; and (3) whether Great Lakes is vicariously liable for Dr. Roach's alleged failure to use due care in assigning Britton to return to work as a deckhand when a job assignment functional capacity test had not been performed. We reverse and remand for proceedings consistent with this opinion.

I. Background

In late July or early August 1997, Britton, a thirty-five year old man, injured his back at work while performing heavy lifting. He did not seek immediate medical attention. On August 14, 1997, he was transported by ambulance to St. Luke's Hospital in Duluth because he was still experiencing back pain. He was discharged without having received a full neurologic examination, but his medical records indicate that the attending doctor suspected he suffered from disc herniation.

Shortly thereafter, Britton applied to work at Great Lakes, and on September 4, 1997, Great Lakes hired Britton as a deckhand. He underwent a post-offer medical exam on or near that date. He indicated on the medical history form that he had suffered previous back strain, but did not explain the circumstances of his August 1997 back injury.¹ Britton's physical exam indicated that he was fit for deckhand responsibilities. He commenced work on September 21, 1997, and was assigned as a deckhand/gate operator aboard the Cason J. Calloway.

On October 1, 1997, Britton sustained a back injury while at work. He filled out an accident report to place Great Lakes on notice of his injury, and continued to work as a deckhand without restrictions until he was injured again on August 17, 1999, which is the incident that is the subject of this lawsuit.

While at sea, the mate and bosun ordered Britton to open the stairwell covers and the vent hatches in preparation for loading coal. The stairwell covers are located on the main deck. Each cover weighs approximately 320 pounds and requires 160 pounds of force to lift. Each vent hatch weighs approximately thirty-five pounds and requires approximately thirty-three pounds of force to lift. Britton lifted one of the stairwell covers, and less than a minute later, he lifted a vent hatch. He felt two sharp pains in his lower back. He told the First Mate, and then, once off the vessel, he sought medical care from Dr. Richard Roach at St. Luke's Hospital in Duluth.

Dr. Roach determined that Britton suffered from a disc protrusion that displaced the S1 nerve root. He referred Britton to Dr. Richard Freeman, a neurosurgeon. Dr. Freeman performed a laser discectomy on Britton's back on May 9, 2000, and later referred Britton back to Dr. Roach for a determination as to whether Britton should return to work with Great Lakes. Dr. Roach performed a job placement assessment on June 6, 2000, and concluded that Britton's strength testing did not meet the requirements for work at Great Lakes. He referred Britton to a two-week course of "work hardening," apparently a physical therapy program. Upon Britton's completion of the work hardening course, Dr. Roach returned Britton to full duty without restrictions and without having performed another job placement assessment or functional capacity evaluation on Britton. Shortly after returning to work, Britton experienced pain in his lower back while lifting hatches and stopped going to work on September 6, 2000. Dr. Roach testified that Britton's back pain was aggravated by his deckhand activities.

Britton filed suit in district court, alleging that Great Lakes violated the Jones Act, 46 App. U.S.C. § 688, failed to maintain a seaworthy vessel, and is liable for his exacerbated back injury upon his return to work. He sought the general maritime law remedy of maintenance and cure for his injuries. Britton filed a motion for partial summary judgment, and requested that the court strike Great Lakes's affirmative defense that Britton's claims were barred due to his fraudulent misrepresentation of his medical history at the time of his pre-employment physical exam. Great Lakes sought summary judgment as well, arguing that there was no evidence to support Britton's allegations of negligence.

The district court determined that there was a dispute in material fact regarding Britton's alleged misrepresentations of his prior back injury, yet granted summary judgment in Great Lakes's favor after determining that Britton's injury was causally linked to his misrepresented or concealed condition, precluding an award of maintenance and cure. The court also granted summary judgment in Great Lakes's favor on the Jones Act negligence claim and the unseaworthiness claim because Britton failed to establish the number of hands on deck on the date of his injury. Finally, the district court held that Britton failed to present evidence that the doctors committed malpractice. Britton appeals.

II. Discussion

We review a district court's grant of summary judgment de novo, evaluating the evidence in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact. See Fed.R.Civ.P. 56(c).

A. Disclosure of Back Injury

"`Maintenance and cure' is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel." Wactor v. Spartan Trans. Corp., 27 F.3d 347, 352 (8th Cir.1994) (quoting Evans v. Blidberg Rothchild Co., 382 F.2d 637, 639 (4th Cir.1967)). "The duty to pay maintenance and cure is not based upon negligence nor is it limited to those situations where the seaman's employment is the direct cause of the illness or injury." Id. Although maintenance and cure is rarely withheld, a seaman's right to the relief is subject to a few narrow exceptions. "Where the seaman is required to provide pre-employment medical information, and `[he] intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure,' if the injury incurred on the employer's vessel is causally linked to the concealed medical condition." Id. (citing McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir.1968)). However, the employer must show that the nondisclosed medical information was material to its decision to hire Britton to successfully defend against maintenance and cure. Wactor, 27 F.3d at 352 n. 5.

Great Lakes asserts that Britton's failure to disclose the exact nature of his prior back injuries on the medical history form and during his post-offer physical examination renders him ineligible for maintenance and cure. The district court concluded that Great Lakes sought such information, and that Britton's injury was causally linked to his previous back injuries. Furthermore, Dr. Roach testified that had he known the extent of Britton's prior back injuries he would have ordered an MRI, and, pursuant to Great Lakes's policy, would have "obtain[ed] further studies on [Britton] ... to qualify him for employment as a seaman."

Britton argues that the issue should have gone before a jury because his prior injuries would not have precluded Great Lakes from hiring him, so the undisclosed information was not material. He also argues that he did disclose that he had: applied for or received worker's compensation benefits in the past; undergone an operation; been hospitalized; strained his back or had whiplash; been exposed to excessive noise at work; been exposed to dust, fumes, gas, or chemicals at work; smoked one to two packs of cigarettes a day; and typically drank four alcoholic beverages a day. Great Lakes hired him with this knowledge, and apparently without having examined Britton's medical records. The district court held that:

whether or not Great Lakes would have hired Britton had it known of his prior back injury, it is beyond cavil that a back injury suffered three weeks before a pre-employment physical examination for a job as physically demanding as a deckhand is information that is important for Great Lakes to know. Thus, Britton's prior injuries were material information.

Britton v. U.S.S. Great Lakes Fleet, Inc., No. 00-2160 at 8 n. 1, 2001 WL 1640131 (D.Minn. Oct. 15, 2001) (Memorandum and Order). Yet, following the Wactor standard, Great Lakes has failed to show that it would not have hired Britton had he fully disclosed the medical facts of his back injuries. Britton has presented sufficient evidence to avoid summary judgment. We therefore reverse the district court's grant of summary judgment on this issue and remand for proceedings consistent with this opinion.

B. Negligence Under the Jones Act

"The duty of a shipowner to pay `maintenance and cure' ... is not related to any finding of damages under the Jones Act." Stanislawski v. Upper River Servs., Inc., 6 F.3d 537, 540 (8th Cir.1993) (citing Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993 (1938)). "Thus, a seaman is entitled to maintenance and cure payments in addition to any damages for...