The doctrine of maintenance and cure mandates that an employer pay an injured seaman a per diem living allowance for food and lodging comparable to what the seaman was entitled to while at sea. The injured seaman is also entitled to payment of medical expenses incurred in treating an injury or illness. The duty to pay maintenance and cure extends until the seaman has reached maximum medical improvement (MMI). However, the point at which a seaman reaches MMI can be a thorny issue, particularly since punitive damages are available to a seaman whose employer has arbitrarily and capriciously terminated maintenance and cure benefits. Many employers will request an independent medical examination (IME) to assist in the investigation of whether the seaman has reached MMI. Quite often, an employer will terminate maintenance and cure based on the opinions of the IME physician, expecting that its reliance on the medical opinion of the expert medical professional would not be arbitrary or capricious. Unfortunately, a recent decision by Judge Carl Barbier of the Eastern District of Louisiana demonstrates that an employer that terminates maintenance and cure benefits simply because an IME physician opines that a seaman has reached MMI does so at its own peril.
In Weeks Marine, Inc. v. Rodney Watson, 2016 WL 3027430 (E.D. La. May 27, 2016), Watson claimed to have been injured on September 24, 2014, when he was struck by a large steam table that toppled over in the galley in rough seas. On September 27, 2014, Watson was taken to a North Carolina physician with complaints of left hip and knee pain. Next, Watson was evaluated by an orthopedist on October 2, 2014. An MRI was recommended to investigate possible knee ligament or meniscus damage. His employer refused to authorize or pay for this diagnostic test. Thereafter, on October 16, 2014, Watson returned home to Louisiana and began treating with a local orthopedic surgeon. An IME was performed on January 15, 2015 by a physician chosen by Watson’s employer. The IME physician opined that there were no objective findings or a need for additional medical treatment. The IME physician also found Watson to be at MMI. Based on the opinions of the IME physician, Weeks terminated Watson’s maintenance and cure benefits on January 15, 2015.
Watson continued to treat with his choice of his physician who never found him to be at MMI. Eventually, Weeks contacted Watson and ordered him to return to the vessel and resume his duties. Watson refused due to his ongoing physical symptoms and he was terminated. Watson then retained an attorney and began treating with a Houston, Texas orthopedic surgeon. MRI studies revealed possible injuries to the left knee as well as to the cervical and lumbar spine. At his employer’s request, Watson returned to the IME physician on June 15, 2015, for his own MRI. The MRI was reported as normal, and Weeks declined to reinstate either Watson’s maintenance or cure.
As of Watson’s last medical appointment with his Houston orthopedist, it was recommended that he undergo a two-level cervical disc fusion, left knee arthroscopy, a radio frequency neurotomy procedure, and continued observation. The Houston physician further related the need for this treatment and surgery to the September 24, 2014 vessel incident. As of the date of trial, Weeks had not paid any medical bills since January 15, 2015 (the date of the first MMI opinion by the IME physician). Unpaid medical expenses were $56,582.00. The parties stipulated that accrued maintenance was payable at $20 per day and totaled $9,340 as of May 17, 2016.
Procedurally, Weeks filed a Complaint for Declaratory Judgment declaring that it was not obligated to make maintenance and cure payments beyond January 15, 2015. Watson responded by filing a Complaint for Damages alleging negligence under the Jones Act, unseaworthiness of the vessel, and compensatory and punitive damages for Weeks’ willful failure to pay maintenance and cure. The two Complaints were consolidated for a bench trial.
Following the bench trial, Judge Barbier held that Weeks was negligent and the vessel unseaworthy. There was no comparative negligence on the part of Watson. Judge Barbier further found that there was credible medical evidence that Watson required a two-level cervical fusion at the cost of $125,000, as well as a left knee arthroscopy and lumbar radiofrequency neurotomy.
In deciding the issue of punitive damages, Judge Barbier reiterated that the maintenance and cure duty must be liberally interpreted for the benefit and protection of the seaman. Any ambiguity or doubt related to maintenance and cure must also be resolved in favor of the seaman. He highlighted that the ship owner bears the obligation to investigate a seaman’s maintenance and cure claim and examine all medical evidence in determining whether maintenance and cure is owed. Further, if a ship owner unilaterally decides to stop paying maintenance and cure and the seaman reasserts his rights by bringing action against the ship owner, the ship owner meets his burden of proof only by providing “unequivocal evidence” that the seaman has reached MMI. See Johnson v. Moreland Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990). Critically, Judge Barbier held that a second opinion contrary to the treating doctor’s opinions regarding diagnosis or prognosis of an injured seaman does not provide the unequivocal evidence required for termination of maintenance and cure benefits. This is in contrast to the existing case law out of the EDLA that has found a Jones Act employer was not arbitrary or capricious when it terminated maintenance in cure based upon its IME doctor’s MMI opinion that conflicted with the treating physician’s opinion. See Great Lakes Dredge and Dock Co. v. Martin, 2012 WL 3158870 (E.D. La. 2012) (Lemelle); Lodrigue v. Delta Towing, LLC, 2003 WL 22999425 (E.D. La. 2003) (Vance). That being said, each case must be evaluated on its own facts.
Based on this rationale, Judge Barbier found that the employer arbitrarily terminated Watson’s maintenance and cure benefits on January 15, 2015. Indeed, Judge Barbier put no faith in the opinion of the IME physician and rejected the physician’s “incredible and biased testimony at trial.” Thus, in addition to his other damages, Watson received $100,000 in punitive damages for willful failure to pay maintenance and cure as well as $50,000 in attorney’s fees incurred for his maintenance and cure claim.
This decision will be well known in the maritime plaintiff’s bar and used to threaten similar claims for punitive damages when a Jones Act employer relies heavily on its IME physician’s opinion in terminating maintenance and cure benefits. While specific circumstances in this case certainly affected the analysis, Jones Act employers should proceed with caution before terminating benefits on the basis of their own IME in light of this decision.