Federal Judge in Tacoma Orders Foss Maritime Company to Pay for Injured Worker’s Medical Treatment

In a recent opinion by federal judge Ronald B. Leighton, Foss Maritime Company was ordered to pay for a spinal cord stimulator for an injured tug worker represented by Kraft Davies Olsson PLLC.  Foss had refused to pay for the procedure for its injured employee, claiming that the procedure did not improve the seaman’s condition and was designed only to reduce pain.  Rejecting Foss Maritime Company’s attempt to avoid responsibility for the injured worker’s medical treatment and holding that pain reduction was a valid purpose of medical cure, Judge Leighton ordered Foss to pay for a trial spinal cord stimulator to see if it would improve the worker’s pain and function.  In ruling in favor of the injured worker, Judge Leighton recognized the maritime rule that medical opinions terminating medical cure must be unequivocal and that any medical dispute about whether a medical treatment would assist the injured worker must be resolved in favor of the worker.  Key portions of Judge Leighton’s opinion are quoted below:

Seamen injured in service of the ship are entitled to maintenance and cure. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-33, 80 S. Ct. 247, 4 L. Ed. 2d 191 (1959). The duty of the shipowner is non-delegable and independent of fault. Dise v. Express Marine, Inc., 476 Fed. Appx. 514, 520, 2011 AMC 2972 (4th Cir. 2011), cert. denied, 132 S. Ct. 2393 (2012).

Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of “maximum cure.” Cure involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of “maximum cure.”

Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 375 n.3 (5th Cir. 1981). “[T]he essential purpose of maintenance” is “to cover food and lodging expenses during the seaman’s recovery.” Del. River & Bay Auth. v. Kopacz, 584 F.3d 622, 630 (3d Cir. 2009). “‘[C]ure’ is care, including nursing and medical attention during such period as the duty continues.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528 (U.S. 1938).

“The maritime employer’s obligation to furnish maintenance and cure commences immediately upon the occurrence of the disability and continues as long as the seaman remains temporarily disabled.” Seatrain Lines, Inc. v. Medina, 39 N.J. 222, 234 (N.J. 1963), citing, Koslusky v. United States, 208 F.2d 957 (2d Cir. 1953); see also H-10 Water Taxi Co. v. United States, 379 F.2d 963, 964-965 (9th Cir. 1967) (the vessel owner’s obligation to pay maintenance and cure arose “the day on which [the seaman] suffered the injuries” because “[t]he obligation of the vessel begins at the time of the injury. . .”); Alario v. Offshore Serv. Vessels, LLC, 2011 U.S. Dist. LEXIS 129179 (E.D. La. 2011) (“payments may be terminated only when it is determined that the seaman has reached maximum medical improvement.”) (citing Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990)).

“The adequate protection of an injured or ill seaman against suffering and want requires more than the assurance that he will  receive payments at some time in the indefinite future. Payments must be promptly made, at a time contemporaneous to the illness or injury.” Vaughan v. Atkinson, 369 U.S. 527, 537-538 (U.S. 1962) (Stewart, J., dissenting); see also Crooks v. United States, 459 F.2d 631, 635 (9th Cir. 1972) (same); Black v. Red Star Towing & Transp. Co., 860 F.2d 30, 33 (2d Cir. 1988) (“maritime law policy . . . calls for prompt and voluntary payment of maintenance and cure”).

A shipowner’s duty to pay maintenance and cure is “virtually automatic,” Baucom v. Sisco Stevedoring, LLC, 506 F. Supp. 2d 1064, 1073 (S.D. Ala. 2007), and serves to provide seamen “essential certainty of protection against the ravages of illness and injury.” Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975). Maintenance and cure are “among the most pervasive incidents of the responsibility anciently imposed upon shipowners” and should not be defeated “by restrictive and artificial distinctions . . . If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.” Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735 (1943); see also Vaughan, 369 U.S. at 532 (ambiguities and doubts must be resolved in favor of the seaman); Wood v. Diamond M Drilling Co., 691 F.2d 1165 (5th Cir. 1982) (same). Defenses to maintenance and cure are “few and narrowly applied.” Silmon v. Can Do II, 89 F.3d 240, 242 (5th Cir. 1996). “Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.” Aguilar, 318 U.S. at 731.

“The policy underlying a broad maintenance and cure doctrine is ‘the almost paternalistic duty’ admiralty law imposes on a shipowner toward the crew.” Messier v. Bouchard Transp., 688 F.3d 78 (2d Cir. 2012) (quoting Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1530 (11th Cir. 1990)); see also, Perry v. Morgan Guaranty Trust Co., 528 F.2d 1378, 1379 (5th Cir. 1976) (“Policy considerations have led to the adoption of a somewhat paternalistic attitude toward seamen.”); Miles v. Apex Marine Corp, 498 U.S. 19, 36, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990) (“admiralty courts have always shown a special solicitude for the welfare of seamen and their families”).

Consistent with the doctrine’s “broad and beneficial purposes”, Aguilar, 318 U.S. at 735, “once the seaman establishes his right to maintenance and cure, the burden of persuasion shifts to the shipowner to prove that the seaman has reached the point of maximum medical improvement.” Baucom, 506 F. Supp. 2d at 1075 (internal quotations omitted); Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 290 (E.D.N.Y. 2010). “It is well-settled that a determination to terminate a seaman’s right to maintenance and cure must be unequivocal”. Alario 2011 U.S. Dist. LEXIS 129179 (citing, Johnson, 893 F.2d at 79).

Seamen injured in service of the ship are entitled to maintenance and cure. Braen v. Pfeifer Oil Transp. Co., 361 U.S. 129, 132-33, 80 S. Ct. 247, 4 L. Ed. 2d 191 (1959). The duty of the shipowner is non-delegable and independent of fault. Dise v. Express Marine, Inc., 476 Fed. Appx. 514, 520, 2011 AMC 2972 (4th Cir. 2011), cert. denied, 132 S. Ct. 2393 (2012).

Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of “maximum cure.” Cure involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman, again, until the point of “maximum cure.”

Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 375 n.3 (5th Cir. 1981). “[T]he essential purpose of maintenance” is “to cover food and lodging expenses during the seaman’s recovery.” Del. River & Bay Auth. v. Kopacz, 584 F.3d 622, 630 (3d Cir. 2009). “‘[C]ure’ is care, including nursing and medical attention during such period as the duty continues.” Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528 (U.S. 1938).

“The maritime employer’s obligation to furnish maintenance and cure commences immediately upon the occurrence of the disability and continues as long as the seaman remains temporarily disabled.” Seatrain Lines, Inc. v. Medina, 39 N.J. 222, 234 (N.J. 1963), citing, Koslusky v. United States, 208 F.2d 957 (2d Cir. 1953); see also H-10 Water Taxi Co. v. United States, 379 F.2d 963, 964-965 (9th Cir. 1967) (the vessel owner’s obligation to pay maintenance and cure arose “the day on which [the seaman] suffered the injuries” because “[t]he obligation of the vessel begins at the time of the injury. . .”); Alario v. Offshore Serv. Vessels, LLC, 2011 U.S. Dist. LEXIS 129179 (E.D. La. 2011) (“payments may be terminated only when it is determined that the seaman has reached maximum medical improvement.”) (citing Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990)).

“The adequate protection of an injured or ill seaman against suffering and want requires more than the assurance that he will  receive payments at some time in the indefinite future. Payments must be promptly made, at a time contemporaneous to the illness or injury.” Vaughan v. Atkinson, 369 U.S. 527, 537-538 (U.S. 1962) (Stewart, J., dissenting); see also Crooks v. United States, 459 F.2d 631, 635 (9th Cir. 1972) (same); Black v. Red Star Towing & Transp. Co., 860 F.2d 30, 33 (2d Cir. 1988) (“maritime law policy . . . calls for prompt and voluntary payment of maintenance and cure”).

A shipowner’s duty to pay maintenance and cure is “virtually automatic,” Baucom v. Sisco Stevedoring, LLC, 506 F. Supp. 2d 1064, 1073 (S.D. Ala. 2007), and serves to provide seamen “essential certainty of protection against the ravages of illness and injury.” Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975). Maintenance and cure are “among the most pervasive incidents of the responsibility anciently imposed upon shipowners” and should not be defeated “by restrictive and artificial distinctions . . . If leeway is to be given in either direction, all the considerations which brought the liability into being dictate it should be in the sailor’s behalf.” Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 735 (1943); see also Vaughan, 369 U.S. at 532 (ambiguities and doubts must be resolved in favor of the seaman); Wood v. Diamond M Drilling Co., 691 F.2d 1165 (5th Cir. 1982) (same). Defenses to maintenance and cure are “few and narrowly applied.” Silmon v. Can Do II, 89 F.3d 240, 242 (5th Cir. 1996). “Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection.” Aguilar, 318 U.S. at 731.

“The policy underlying a broad maintenance and cure doctrine is ‘the almost paternalistic duty’ admiralty law imposes on a shipowner toward the crew.” Messier v. Bouchard Transp., 688 F.3d 78 (2d Cir. 2012) (quoting Garay v. Carnival Cruise Line, Inc., 904 F.2d 1527, 1530 (11th Cir. 1990)); see also, Perry v. Morgan Guaranty Trust Co., 528 F.2d 1378, 1379 (5th Cir. 1976) (“Policy considerations have led to the adoption of a somewhat paternalistic attitude toward seamen.”); Miles v. Apex Marine Corp, 498 U.S. 19, 36, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990) (“admiralty courts have always shown a special solicitude for the welfare of seamen and their families”).

Consistent with the doctrine’s “broad and beneficial purposes”, Aguilar, 318 U.S. at 735, “once the seaman establishes his right to maintenance and cure, the burden of persuasion shifts to the shipowner to prove that the seaman has reached the point of maximum medical improvement.” Baucom, 506 F. Supp. 2d at 1075 (internal quotations omitted); Haney v. Miller’s Launch, Inc., 773 F. Supp. 2d 280, 290 (E.D.N.Y. 2010). “It is well-settled that a determination to terminate a seaman’s right to maintenance and cure must be unequivocal”. Alario 2011 U.S. Dist. LEXIS 129179 (citing, Johnson, 893 F.2d at 79).

Dated this 29th day of January, 2015.

/s/ Ronald B. Leighton 

RONALD B. LEIGHTON 

UNITED STATES DISTRICT JUDGE