     Case: 10-30068 Document: 00511283810 Page: 1 Date Filed: 11/03/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 3, 2010

                                     No. 10-30068                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



RAYMOND SALIS,

                                                   Plaintiff–Appellant,
v.

L&M BOTRUC RENTAL, INC.,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:09-cv-02811


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Raymond Salis (Salis), a seaman formerly employed by L&M Botruc
Rental, Inc. (L&M), filed suit against L&M asserting claims for personal injury
compensation under the Jones Act as well as maintenance and cure. The United
States District Court for the Eastern District of Louisiana granted summary
judgment in favor of L&M. Salis now appeals to this court. Finding no genuine
issue as to any material fact, we affirm.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                        I
      L&M employed Salis as a deckhand aboard the ship M/V Botruc 19 (M/V
Botruc). During the course of his employment, Salis twice complained about
neck and back pain. The first asserted injury occurred in March 2008, while
Salis restocked the water in the M/V Botruc’s galley. The M/V Botruc’s crew
restocked this galley as a component of their duties. This involved moving six
one-gallon jugs of water, held in boxes, from the cooler to the galley. Crew
members entered the galley through a hatch, the base of which sat raised above
the floor. The apex of the hatch was approximately five feet higher. Salis stated
that he moved water into the galley and, in so doing, injured himself. Although
at times two crew members would work together to move the water—thus
avoiding the need for an individual to duck through the hatch while carrying the
water—Salis was acting alone at the time of injury. He was placed on modified
duty after notifying L&M, and sought treatment at the Patients First Clinic
upon returning to shore. The medical records included a diagnosis of a strain,
and stated that the strain “is resolving spontaneously without much
intervention.”
      Salis then returned to active service. He states that he aggravated the
injury in July 2008, while transporting boxes of groceries from shore. The
groceries were loaded by hand, though Salis asserts that a crane was available
at the facility and that there were previous occasions on which the crane had
been used for that purpose. The ship’s captain, when deposed, stated that he
could not recall any other crewman being injured in such a manner. As to both
incidents, Salis admits that he was not specifically ordered as to the manner in
which to move the goods.
      After the July 2008 injury, L&M sent Salis for evaluation upon returning
to port. Salis left town without evaluation, and instead returned home where he
sought treatment at Patients First. At Patients First, however, Salis refused to

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retake a Coast Guard drug test, a prerequisite to the appointment. A previous
test had been overly diluted, and despite being told that refusal to take a test
was tantamount to a failed test, Salis left without treatment.
      Salis instead sought treatment from Dr. Carr, beginning on August 8,
2008. Parties have submitted treatment records from four medical evaluations
by Carr. In the first appointment, Carr diagnosed Salis with a spinal injury, and
noting his improving health, recommended continuing “conservatively.” She
directed Salis to physical therapy and wrote that upon the therapy’s conclusion,
and Salis presenting as “symptom free,” he would be cleared for “full duty.” Carr
also scheduled a follow-up appointment, noting that Salis could be a candidate
for surgical cervical disk replacement if the conservative treatment failed. At
that follow-up, on September 19, 2008, Carr observed improvement. Salis was
scheduled for another follow-up appointment, and Carr noted that surgery
remained possible if the conservative therapy failed. Additionally, Carr cleared
Salis for a return to work with “zero” restrictions. Also in the record is a letter
from Salis’ physical therapist, noting that on Salis’ visit of September 18, 2008,
Salis reported a “100% functional improvement and 0/10 pain on the visual
analog scale.”
      Salis then returned to work on September 26, 2008. Subsequently, on
November 5, 2008, the Coast Guard suspended his license for failure to take a
drug test. Lacking a Merchant Marine License, Salis could not work as a
deckhand with L&M. Instead, since that time he has worked at his father’s
restaurant. Salis responded affirmatively in his deposition when asked if he
would still be with L&M if not for the suspension of his license.
      One day before the Coast Guard suspended his license, Salis saw Carr. He
complained about renewed pain since he began working again. Carr advised
Salis of the risks of surgery, ranging from “worsening pain” to “coma, death, [or]
paralysis.” Salis indicated that he “wishe[d] to think about the options.” At a

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follow-up appointment in February 2009, Salis again indicated that he wished
to think about the options before committing to such a surgery. Salis stated in
his deposition that he has not seen a doctor for care stemming from this injury
since that time.
         The district court held that L&M was entitled to summary judgment on
both the Jones Act negligence and maintenance and cure claims. It found no
genuine issues of material fact with respect to the negligence claim, observing
that Salis lacked evidence establishing a right to such recovery. It also held that
L&M’s maintenance and cure obligations were terminated by Salis’ pain-free
return to work, and that his current absence was due to his lack of a license.
The court noted, however, that should Salis undergo surgery, he might, at that
time, have a renewed claim for maintenance and cure. Salis now appeals to this
court.
                                                         II
         Salis appeals from a final summary judgment rendered by the district
court. Thus, jurisdiction over the appeal is properly vested in this court.1 This
court reviews a district court’s grant of summary judgment de novo, pursuant
to the same standards as the lower court.2 Summary judgment is appropriate
when “‘the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.’”3 A genuine issue of




         1
             28 U.S.C. § 1291.
         2
        DePree v. Saunders, 588 F.3d 282, 286 (5th Cir. 2009) (citing Freeman v. Tex. Dep't
of Criminal Justice, 369 F.3d 854, 859-60 (5th Cir. 2004)).
         3
             Id. (quoting FED . R. CIV . P. 56(c)(2)).

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material fact exists when “‘a reasonable jury could return a verdict for the non-
moving party.’” 4
                                               A
      We address Salis’ Jones Act claim first. The Jones Act provides a cause
of action for seamen injured in the course of their employment.5 Here Salis
asserts a negligence claim against L&M. In reviewing such a claim, we have
previously stated that while the plaintiff’s burden of proving negligence is
“light,” a shipboard injury nonetheless “does not presuppose negligence.” 6
Therefore, to survive summary judgment Salis must demonstrate a genuine
issue of material fact on which a reasonable jury could find that he surmounted
this light, though real, burden.
       Although Salis’ brief cites to authority for the proposition that negligence
is a viable claim under the Jones Act, he fails to offer any explanation of how the
particular facts of the instant case demonstrate negligence. We have previously
held that an employer’s standard of care in a Jones Act action is “ordinary
prudence under the circumstances.”7                Salis theorizes on appeal that L&M
negligently failed to train him in “the safe methods of transporting water” into
the galley—and makes no claim in this section of the appeal with respect to the
grocery injury. As evidence, he notes that it would have been “safer” to pass the
water through the hatch to another crewman. He speculates that this “could
have prevented” his injury.




      4
       Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th Cir. 2009) (quoting
Crawford v. Formosa Plastics Corp., La., 234 F.3d 899, 902 (5th Cir. 2000)).
      5
          46 U.S.C. § 30104.
      6
          Marvin v. Cent. Gulf Lines, Inc., 554 F.2d 1295, 1299 (5th Cir. 1977).
      7
          Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 338 (5th Cir. 1997) (en banc).

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                                        No. 10-30068

      This is insufficient to demonstrate negligence. The mere fact of an injury
does not imply negligence.8 The testimony in the record from the ship’s captain
indicates that he could not recall another individual injuring himself in such a
manner or reporting such an injury. The bare existence of another
transportation method by which Salis’ particular injury might not have occurred,
with no additional citations or legal arguments, cannot demonstrate a lack of
“ordinary prudence”9 by L&M in allowing crewmen to transport the goods in that
manner. Thus, Salis has failed to offer sufficient evidence to demonstrate a
genuine issue of material fact on his negligence claim, and summary judgment
is appropriate.
      In the alternative, we note that the deficiencies of Salis’ brief constitute
waiver of the negligence claim. As in the instant case, we have previously held
that a mere conclusory assertion unsupported by legal or factual analysis
constitutes waiver of an issue on appeal.10
                                               B
      We now address Salis’ claim for continuing maintenance and cure. In
Vaughan v. Atkinson, the Supreme Court offered a succinct explanation of
maintenance and cure: “Maintenance and cure is designed to provide a seaman
with food and lodging when he becomes sick or injured in the ship’s service.” 11
The doctrine is liberally construed.12 Maintenance encompasses the seaman’s
living expenses, while cure involves payment of medical or therapeutic




      8
          Marvin, 554 F.2d at 1299.
      9
          See Gautreaux, 107 F.3d at 338.
      10
           N.W. Enters. Inc. v. City of Houston, 352 F.3d 162, 183 n.24 (5th Cir. 2003).
      11
           369 U.S. 527, 531 (1962).
      12
           Id. at 531-32.

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treatment.13 A seaman’s burden in proving these expenses is “‘feather light.’”14
Lastly, the Court has held that maintenance and cure continue until the seaman
reaches “maximum medical recovery.”15 We have previously stated that this
occurs “when it appears probable that further treatment will result in no
betterment of the seaman’s condition.”16               Such a determination is a factual
medical matter.17
       The district court’s order only terminated these obligations at the present
moment, but specifically added that it was not taking a position on maintenance
and cure obligations should Salis seek surgery. Thus, Salis must logically be
seeking a restoration of his maintenance benefits along with a right to cure until
he either has the surgery or decides against it.
       Maintenance and cure are not without limits. Maintenance is designed to
provide financial assistance to a seaman who cannot work. Therefore, it is
unsurprising that the parties focus heavily on Salis’ return to work. The mere
fact that Salis returned to work, however, is not dispositive.                    Indeed, the
Supreme Court has held that it would defeat the doctrine’s purpose if a seaman’s
right to maintenance was terminated by an economically motivated return to
work as a taxicab driver.18 In fact, we have held this is so even with respect to




       13
         Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979) (citing Farrell v.
United States, 336 U.S. 511 (1949)).
       14
         Hall v. Noble Drilling (U.S.) Inc., 242 F.3d 582, 588 (5th Cir. 2001) (quoting Yelverton
v. Mobile Labs., Inc., 782 F.2d 555, 558 (5th Cir. 1986)).
       15
            Vaughan, 369 U.S. at 531.
       16
            Pelotto, 604 F.2d at 400 (citing Farrell, 336 U.S. 511).
       17
            Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987).
       18
            Vaughan, 369 U.S. at 533.

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                                          No. 10-30068

a return to a seaman’s work.19 Yet where we observed that a seaman was fit
enough to return to work, but by his own volition had chosen to work for others,
we held the right to maintenance terminated.20
      Instead, reaching          maximum        medical     recovery    is     dispositive   for
maintenance and cure claims.21 The instant parties do not dispute that Salis
had no pain or symptoms at the time he returned to work. Carr cleared Salis for
a return to work with “zero” restrictions, particularly relevant since in her initial
notes she stated that she would do so only if Salis were symptom free.
Reinforcing the conclusion that Salis had been cured, his physical therapist
noted that Salis reported “100% functional improvement and 0/10 pain on the
visual analog scale.” Though in some cases “maximum medical recovery” can be
difficult to pinpoint,22 having no pain or symptoms and 100% functional
improvement qualifies. Thus, at the time Salis returned to work he had no right
to maintenance or cure.
      It is nonetheless possible that Salis could have become reinjured while
working, and thus with further recovery possible he would be eligible for
maintenance and cure. Indeed, Salis now states that his pain has returned, and
that he is considering surgery. Yet he has not seen a doctor for his injury since
February 2009. Moreover, Salis readily admits in his brief that he “is not
entitled to maintenance for the days during which he was compensated for duty
as a deckhand.” There is no dispute that Salis worked his tours until his license
was suspended.          In other words, Salis concedes that he had no right to
maintenance until his license was suspended by the Coast Guard. Indeed, he


      19
           Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968, 969 (5th Cir. 1978).
      20
           Dowdle v. Offshore Exp., Inc., 809 F.2d 259, 266 (5th Cir. 1987).
      21
           Vaughan, 369 U.S. at 531.
      22
           See Dowdle, 809 F.2d at 266.

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indicated he would still be at L&M if he had a license. Thus, Salis did not
reacquire a right to maintenance merely because the Coast Guard suspended his
licence. Therefore, maintenance was properly terminated.
      Similarly, the suspension by the Coast Guard did not create a new right
to cure. Of course, the district court’s order explicitly did not address whether
Salis would have a renewed right should he undergo the considered surgery. We
do not address it either. Salis does not, however, have a right to maintenance
while he continues to weigh his options with regard to the surgery.
                                *        *         *
      Finding the district court’s grant of summary judgment proper, we
AFFIRM.




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