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In the Louisiana case of Domingue v. Allied Discount Tire and Brake, Inc., 849 So. 2d 690 (La. Ct. App. 1st Cir. 2003), the court ruled that a plaintiff's financial inability to obtain medical treatment can be given as a valid reason for delaying treatment after an accident claim arises. In that case the plaintiff failed to obtain treatment until three years after his accident, but explained that the delay was due to his financial inability to pay for recommended treatment. See, also, Etheridge v. St. Paul Mercury Ins. Co., 814 So. 2d 119 (La. Ct. App. 2d Cir. 2002) [continuing to work after an accident may be reasonable]. Hopefully, Hawaii's courts will also find that the expenses of the treatment and the plaintiff's financial condition are proper considerations in determining the reasonableness of the plaintiff’s failure to obtain treatment.
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JONES ACT- TABLE OF CONTENTS
The Jones Act
VI. DAMAGES -> B. Damages for Personal Injury -> 2. Deductions From Award
476. Insurance benefits
In action to recover damages under 46 USCS Appx § 688, insurance policy which provides for weekly payments during period of nonoccupational disability are similar to accumulated leave time payments, and form of deferred compensation; they are designed to replace lost wages, not to provide room and board and medical treatment, and benefits have nothing to do with vessel owner's separate maintenance obligation; credit against that obligation, with respect to maintenance and cure, would be inappropriate. Shaw v Ohio River Co. (1975, CA3 Pa) 526 F2d 193, 33 ALR Fed 521.
Standard provisions of municipality's maritime insurance policy did not cover liability for accident where vessel borrowed from Navy, and on which crewman from one of municipality's ships was injured, was owned by Navy and was not one of vessels listed in policy. City & County of San Francisco v Underwriters at Lloyds (1998, CA9 Cal) 141 F3d 1371, 98 CDOS 2895, 98 Daily Journal DAR 3982, 1998 AMC 1617.
In action under 46 USCS Appx § 688, award made to widow of seaman must be reduced by sum paid to her under liability insurance policy taken out by shipowner, and on which shipowner had paid all premiums. Petition of Gulf Oil Co. (1963, DC RI) 221 F Supp 1000.
477. Statutory compensation payments
Benefits received by injured seaman under state unemployment disability benefits were not deductible from recovery under 46 USCS Appx § 688. Gypsum Carrier, Inc. v Handelsman (1962, CA9 Cal) 307 F2d 525, 1963 AMC 175, 4 ALR3d 517.
In action under 46 USCS Appx § 688, if plaintiff seaman, injured in course of employment on vessel, succeeds in this action and ultimately in his suit, shipowner may recoup amounts already paid by compensation carrier by deducting them when satisfying judgment; if compensation was paid by one insurer and judgment becomes payable by another, employer as legal debtor in both instances may retain from settlement of judgment sums necessary to reimburse compensation carrier; compensation and suit, are thus made complementary. Biggs v Norfolk Dredging Co. (1966, CA4 Va) 360 F2d 360.
Injured seaman's pension benefits are not, for purposes of 45 USCS § 55, received "on account of his injury," but rather as fringe benefit of his employment; thus, with respect to damages, there could be no setoff of pension benefits. Russo v Matson Navigation Co. (1973, CA9 Cal) 486 F2d 1018.
In action under 46 USCS Appx § 688, payments provided under Social Security Act cannot be considered in ascertaining pecuniary loss to widow and children, and cannot be deducted from award. Gardner v National Bulk Carriers, Inc. (1963, ED Va) 221 F Supp 243, affd (CA4 Va) 333 F2d 676.
Workmen's compensation award by Deputy Commissioner does not bar employee's recovery as seaman of damages for physical injury under 46 USCS Appx § 688 on theory of res judicata or collateral estoppel where Deputy Commissioner has failed to make any finding as to jurisdictional facts; if plaintiff recovers under 46 USCS Appx § 688 in addition to receiving workmen's compensation benefits, he would not receive double payment because proper credit would be given for compensation payments. Smith v Service Contracting, Inc. (1964, ED La) 236 F Supp 492.
State employees' compensation fund is not entitled to lien on seaman and wife's settlement with state university/higher education board, where seaman was injured in 2 accidents aboard university research vessel, received medical services and compensation from fund, and then settled subsequent legal claims through negotiations which took into account medical services and compensation previously paid, because post-settlement lien would take away seaman and wife's right to damages received under Jones Act. Benders v Board of Governors (1990, DC RI) 728 F Supp 839.
478. --Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.)
If seaman succeeds in action under 46 USCS Appx § 688, employer may recoup amounts already paid in previous action brought by seaman under Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) by deducting them when satisfying judgment and in event compensation was paid by one insurer and judgment becomes payable by another, employer as legal debtor in both instances may retain from settlement of judgment sums necessary to reimburse compensation carrier. Biggs v Norfolk Dredging Co. (1966, CA4 Va) 360 F2d 360.
Payments made directly to injured seaman on behalf of his employer pursuant to Longshore and Harbor Workers' Compensation Act (33 USCS § § 901 et seq.) whose purpose was to compensate at least to degree, pecuniary loss as sustained by employee from injury received in course of employment are not subject to repayment when it was found that action should have been brought under 46 USCS Appx § 688 but rather is to be credit against damages ultimately recovered under § 688 action. Massey v Williams-McWilliams, Inc. (1969, CA5 La) 414 F2d 675, cert den 396 US 1037, 24 L Ed 2d 681, 90 S Ct 682 and on remand (ED La) 317 F Supp 37.
Damage award under Jones Act (46 USCS Appx § 688) would be reduced by amount of benefits paid to plaintiff by defendant under LHWCA (33 USCS § § 901 et seq.). Cheuvront v Pittsburgh & L. E. R. Co. (1979, WD Pa) 477 F Supp 193.
479. Miscellaneous
Seaman's recovery for maintenance and care would not be reduced by amount he earned during period in which he had not reached maximum recovery. Vaughan v Atkinson (1962) 369 US 527, 8 L Ed 2d 88, 82 S Ct 997, 1962 AMC 1131, reh den 370 US 965, 8 L Ed 2d 834, 82 S Ct 1578 and on remand (ED Va) 206 F Supp 575.
Jones Act settlement between seaman and employer specifically excluding any claims arising out of his employee benefit plan prevented employer from setting off Jones Act settlement against benefits due under benefit plan. Jones v Sonat, Inc. (1993, CA5 La) 997 F2d 113, 16 EBC 2793.
Where money advanced to injured diver was presented to jury for consideration in its determination of past wages, there was no error in trial court's decision not to reduce damage award by stipulated amount. Hughes v International Diving & Consulting Servs. (1995, CA5 La) 68 F3d 90, reh den (1995, CA5 La) 1995 US App LEXIS 38407.
Defendant in action under 46 USCS Appx § 688 should be permitted to show substantial voluntary advances made to plaintiff to aid him when helpless in his injured condition as set-off and counterclaim. Royle v Standard Fruit & S. S. Co. (1944) 184 Misc 348, 50 NYS2d 351, mod 184 Misc 348, 52 NYS2d 407, affd 269 App Div 762, 54 NYS2d 778.
JONES ACT- TABLE OF CONTENTS
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1999-2005 by William H. Lawson.
