Case Name: Keith Townsend v Diamond Offshore
Date Decided: August 7, 2009
Court: U.S.D.C. Eastern District of Louisiana
Judge: Judge Barbier
Citation: 2009 WL 2447996 (E.D.La.)

Background:
Defendant, Diamond Offshore Drilling, (Diamond) owns and operates a fleet of offshore drilling vessels. Plaintiff, Keith Townsend (Townsend), applied for a job as a roustabout for Diamond. Townsend was offered a job upon the passing a physical examination and drug screening.

Townsend's screening MRI revealed two possible herniated discs with extruded fragments and nerve root involvement. Dr. Khan, a Diamond assigned physician, concluded the examination by sending Diamond a document stating Townsend was physically qualified for employment.

Upon being hired, Townsend began seeing a local chiropractor in his home town during his days off complaining of pain in his back extending into his thigh. Although Townsend never disclosed these treatments to Diamond he did use Diamond's health insurance to pay the chiropractor.

On May 24, 2006, Townsend injured his back while performing his duties aboard a vessel owned and operated by Diamond. The injury eventually led to lumbar disc surgery.

Townsend brought this action pursuant to the Jones Act seeking past and future general damages for pain and suffering related to having lumbar surgery. He is also seeking future medical expenses. 

Issue:
Is Townsend entitled to past and future general damages for pain and suffering as a result of his lumbar surgery?

Held:
The benefits of the Jones Act are extended to any seaman who shall suffer personal injury in the course of his employment. In order to recover for negligence, the Jones Act requires the seaman to be injured in the course of his employment.  When an employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' pof the employer.

Townsend argued that Diamond was negligent by allowing him to be assigned to a heavy labor job off-shore when it knew or should have known it was unsafe for him to do work based upon the MRI findings of his preemployment physical examination. Townsend alleged he aggravated his back condition when he was pulling on the cable and that Diamond was negligent in not assigning help for him to do this unfamiliar task.

Diamond responded alleging that no one witnesses any type of accident and that it could not have been negligent in allowing plaintiff to work as a roustabout considering that it relied on the doctor in Houston who performed the physical examination and indicated that Mr. Townsend was qualified for the job.

This Court found that Diamond knew or should have known Townsend was not physically qualified for heavy manual labor because the physician that performed the MRI was contracted by Diamond for preemployment physicals. The Doctor was acting as an agent of Diamond pursuant to a contract.

This Court found also that although Townsend had a previous back injury the negligence of Diamond in allowing him to perform a heavy lifting duty and not providing him with adequate help, based on the preponderance of the evidence, lead to the lumbar surgery.

Accordingly this Court found in favor of Townsend in the amount of $100,000 plus prejudgment interest.

Comment:
Although the employee had a pre-existing back injury that lead to his surgery this Court found that, through a contracted physician, the employer had constructive knowledge of employee's back problem and that they were negligent in allowing him to perform heavy lifting duties.

Steve Gordon
http://www.offshoreinjuries.com