[B]Case Name: [/B]Joseph Collick v. Weeks Marine, Inc., et al.
[B]Date Decided: [/B]October 28, 2009
[B]Court: [/B]U.S.D.C. D. New Jersey
[B]Judge: [/B]Judge Cooper
[B]Citation: [/B]2009 WL 3615025[B]Background:
[/B]Plaintiff, Joseph Collick, brought this action under general maritime law against defendants Weeks Marine (former employer) and Haztek Inc. Collick also moved to enjoin Weeks from failing to pay him maintenance and cure.
Collick worked for Weeks as a marine construction worker. His first project involved construction of a pier. Weeks was assigned to a particular crane barge. While Weeks employees on the barge were using the crane to position a heavy piece of concrete , the concrete got hung up on a piece of rebar protruding from another piece of concrete.
Weeks’ supervisors directed him to stand on a five-inch wide section of concrete suspended from the crane and use a tool to bend the rebar out of the way. The tool slipped off the rebar and Collick fell 12-15 feet to the deck of the pier. As a result Collick injured his right ankle.
Weeks began to pay medical and wage benefits under the LHWCA, Longshore Harbor Workers’ Compensation Act. Collick filed a claim to recover compensation benefits from Weeks with the Department of Labor and listed his occupation as a dockbuilder.
Collick then brought this action stating he was a seaman and asserted claims under the Jones Act and general maritime law. Weeks then discontinued paying LHWCA benefits to Collick after he brought this action based on the question whether he was a Jones Act seaman, precluding him from coverage under the LHWCA.
Collick also claimed that Weeks’ failure to pay maintenance and cure has severely ruined his financial life and worsened his condition. Moreover, both parties disagree on the proper method of treating the ankle and Weeks has conditioned maintenance and cure payments upon Collick entering into a rehabilitation program asserted by Weeks.
[B]Issue:
[/B]Did this Court find that Weeks was a Jones Act seaman and also enjoin Weeks from failing to pay maintenance and cure?
[B]Held:
[/B]Collick claimed that because he was physically located on the barge about 75% of the time while he was at work, that it was sufficient to conclude he was a Jones Act seaman. Moreover, Collick, on a daily basis, would assist in moving the barge by handling lines from tugboats and mooring the barge to the pier.
However, Weeks’ supervisor testified that Collick’s work occurred [I]almost exclusively on the pier [/I]and estimated Collick spent 90% of his time on the pier, not the barge. Collick countered that the testifying supervisor was not even around most of the time and did not watch Collick and his crew everyday.
This Court, in light of the evidence presented, preliminarily found that Collick spent a substantial amount of time physically on the barge and therefore, continued to examine whether Weeks should be enjoined from failing to pay maintenance and cure.
The Court first examined the likelihood of Collick’s success in showing he is a seaman entitled to maintenance and cure under general maritime law. This Court ultimately found because he was regularly and consistently assigned to work on a particular barge, the nature of the work included assisting in handling lines to move the crane barge several times per week, that Collick has shown a reasonable probability of success in showing that his connection to the barge was substantial in duration and nature.
Second, the court considered whether Collick was likely to show entitlement to maintenance and cure benefits. Weeks contended that Collick has reached maximum medical improvement, however, this Court found that this lacked merit because Collick’s overall condition had worsened.
Third, this Court examined whether Collick has made a clear showing of immediate irreparable injury. Here, the Court found that because Collick has fallen into dire financial straits due to discontinuation of payment of benefits and his inability to work as a dockbuilder then Collick has shown irreparable injury if the Court did not enjoin Weeks from failing to pay maintenance and cure.
Fourth, this Court also found that Weeks failed to show substantial harm if they are required to pay maintenance and cure. Simply put, if the court eventually finds that Collick is a seaman, the maintenance and cure payments are substantially lower than those benefits being paid under the LHWCA.
Finally, this Court found, recognizing the strong public policy entitling seaman to maintenance and cure, supports a finding that paying Collick his maintenance and cure furthers a public interest.
Accordingly, this Court granted the motion for a preliminary injunction and ordered Collick to submit a detailed declaration explaining his maintenance expenses and supporting documentation regarding his financial condition.
[B]Comment:
Ultimately, the Court did not determine whether Collick was a seaman entitled to maintenance and cure benefits. It did, however, find that Collick has established a likelihood that he would be successful on this issue and therefore, considered his preliminary injunction to enjoin Weeks from failing to pay maintenance and cure. (Ordered Weeks to pay maintenance and cure)[/B]
[B]In determining whether to issue a preliminary injunction the Court considers the following: (1) Whether the movant has shown a reasonable probability of success on the merits (2) the movant will be irreparably injured by denial of the relief (3) Whether granting preliminary relief will result in greater harm to the nonmoving party and (4) Granting the preliminary is in the public interest. [/B]
[B]Steve Gordon [/B]