Lost Earning Capacity

Nationally, defendants are creating "make work" jobs for profoundly injured seamen. Sometimes these seamen are making more money than they were at the time that they were injured. These make work jobs allow the defendants to argue that the seaman, although profoundly injured, has no economic loss. Two counters to this argument are briefly discussed below. The first is the maritime law relating to loss of wage earning capacity. The second is based on the facts of the case and may be employed whenever the seaman's job requires a merchant mariner's document, able seaman rating, or a license.

Although the Jones Act does not itself include reference to the items of damages that are recoverable, lost earning capacity has been an integral part of recovery under the Jones Act from its inception in 1920. See Jones & Laughlin Steel Corp. v. Pfeifer, 462 US 523, 535 (1983); Earl v. Bouchard Transportation Co., Inc., 735 F.Supp. 1167, 1171-72 (EDNY 1990); Kinney v. General Construction Co., 248 Or. 500, 508-09, (1967)(Jones Act case).

Loss of earning capacity is loss of a person's potential and is not necessarily determined by actual loss; plaintiff need not be working or even in a certain profession to recover such an award, because what is being compensated is plaintiff's lost ability to earn a certain amount. He may recover such damages even though he may never have seen fit to take advantage of that capacity. See Earl v. Bouchard Transportation Co., Inc., 735 F.Supp. 1167, 1171-72 (EDNY 1990).

Plaintiff need not, as a prerequisite to recovery for loss of earning capacity, prove that in the near future he will earn less money than he would have but for the injury; rather, plaintiff must show that the injury has caused diminution in ability to earn a living, including decreased ability to weather adverse economic circumstances, such as discharge or lay-off, or to voluntarily leave defendant's employer for other employment. See Wilburn v Maritrans GP Inc., 139 F.3d 350 (3rd 1998).

The plaintiff is not required to prove impairment of wage earning capacity with mathematical certainty. The Supreme Court has observed, A[a]s in all damage awards for tortious injury, insistence on mathematical precision would be illusory and the judge or juror must be allowed a fair latitude to make reasonable approximations guided by judgment and practical experience.@ Sea-Land Services, Inc. v. Gaudet, 414 US 573, 590 (1974).

Each of the following cases discuss the evidence necessary to instruct the jury on loss of wage earning capacity. SEQ CHAPTER \h \r 1Tolar v. Kinsman Marine Transit Company, 618 F.2d 1193, 1197 (6th Cir.1980) (medical testimony of permanent disability sufficient to support award of future lost earnings in Jones Act case); Firth v. United States, 554 F.2d 990, 994 n. 7 (9th Cir.1977); Rogers v. Elgin, Joliet & Eastern Railway Company, 248 F.2d 710, 712 (7th Cir.1957) (medical testimony of permanent limitation of motion and the plaintiff's testimony of pain sufficient to support giving of jury instruction on future pain and suffering and future loss of earnings in FELA case); Nettles v. Ensco Marine Company, 980 F.Supp. 848, 851-854 (E.D.La.1997).

If a profoundly injured seaman has been given a make work job at sea, the job will only last until the mariner is required to renew her document, rating, or license. U.S. Coast Guard forms and publications provide detailed physical standards that the mariner must meet every five years to renew the license or document. When renewing the license or document the mariner is must have a medical provider conduct a physical and complete U.S. Coast Guard Form CG-719K. CG-719K informs the examining physician that mariners must: "Have no physical limitations that would hinder or prevent performance of duties." The last page of CG-719K requires the physician to describe any problems with the musculoskeletal system and to describe in detail any problems including identifying the condition, any limitations, the date of the diagnosis and prognosis.

CG-719K directs the physician to Navigation and Vessel Inspection Circular No. 02-98 for detailed guidelines on potentially disqualifying medical conditions. NVIC 02-98 states that the Code of Federal Regulations requires seamen to be "fit for duty." In order for the physician to certify the seaman fit for duty she "should be capable of living and working in cramped spaces, frequently in adverse weather causing violent motion of the vessel. . . All mariners much be able to participate in emergency evolutions such as firefighting or launching lifeboats or liferafts." Id. NVIC 02-98 also contains a list of potentially disqualifying conditions.

The most relevant concerns orthopedic injuries including: "amputation, deformity, or arthritis resulting in impairment of motion or use of limbs or back." If the conditions exist the seaman must pass a test that demonstrates her mobility. The mariner must be able to respond to emergency situations. NVIC 02-98 further directs that any such demonstration be conducted in conformance with the Coast Guard's Marine Safety Manual.

Volume 3, Chapter 4 of the Marine Safety Manual concerns physical requirements for mariners. To pass muster the mariner must be able to: (1) handle mooring lines; (2) climb and descend the vessel's ladders; (3) use all of the vessels firefighting equipment; (4) render first aid to a person who may be unconscious; (5) recover a person who has fallen overboard; (6) use shipboard tools to repair breakdowns. Moreover, if the seaman is a deck officer, engineering officer, or an able seaman, she must be able to climb and descend a Jacob's ladder, exit the vessel using emergency routes, and wear emergency breathing apparatus (including fire suits and tanks weighing up to 90 pounds).

According the Marine Safety Manual if the mariner cannot perform these tasks she is not fit for duty and the license or able seaman ticket can not be renewed.

The treating physician is often able to determine whether or not the seaman is fit to perform these tasks. When in doubt a physical capacity evaluation can be arranged to simulate these tasks. The most difficult are firefighting, recovering a person who has fallen overboard, and climbing a Jacob's ladder. Many employers, in an effort to limit damages send mariners back to sea who cannot perform these tasks. If they can not renew their ratings they have obviously lost wage earning capacity.