Admiralty and Maritime Attorneys at Law
Maintenance and cure benefits
A seaman’s right to time loss, medical bills, and contractual wages until the end of the voyage are frequently improperly contested by shipowners. An injured or ill seaman who believes his benefits are being unfairly terminated should immediately contact a qualified maritime lawyer for assistance. Knowing and understanding your basic rights right is important. Never sign a release of all claims without fully understanding all of your rights. To determine your right to maintenance and cure you should consult with an experienced maritime lawyer. This is a general overview of the seaman’s rights to the complex issue and frequently litigated area of maintenance and cure and unearned wages.
To qualify for maintenance and cure benefits, a seaman does not have to prove that his injury or illness was caused by the fault of the shipowner. If the injury or illness first arises while the crewman is in the services of the vessel, it is the duty of the ship owner to provide this basic benefit at no charge to the seaman.
YOUR RIGHT TO CURE:
As long as men have worked at sea, there has been in place a system of caring for them when they become injured or ill while in the services of their vessels. The right of an injured seaman to receive basic medical care has been traced back to middle ages. The right is implied in a seaman’s contract of employment whether written or not. In 1903 the Supreme Court of the United States in The Osceola, 23 S.Ct. 483, adopted into the general maritime law the duty of a vessel owner to provide what is called maintenance and cure.
As part of their duty to provide cure, if a seaman becomes injured or ill while working aboard a vessel, the vessel owner must pay all of the seaman’s reasonable and necessary medical bills. The duty to pay these medical bills continues until the seaman reaches maximum medical cure. All treatment deemed to be curative should be considered cure; this includes doctors and hospital bills, x-rays, MRI and CT scans, bone scans, EMGs, EEGs, medical prescriptions, diagnostic testing, emergency transportation, nursing services, reasonable travel expenses to and from the doctors, physical therapy, and in home health care. In appropriate cases, our firm’s clients have qualified for work hardening programs and pain clinic treatments.
Know you have the right to select your own physician. The shipowner does not have the right to demand that you treat with a doctor of the shipowner’s choosing. Where there is reasonable conflict between treating physicians as to whether or not a seaman has reached maximum medical cure, the seaman is entitled to further benefits. Selecting a physician is important to your recovery. You should have the best care possible from a qualified specialist. Beware when the shipowner or insurance company is selecting your physician for you. Good medical care is expensive, but good medical care will provide you the best recovery possible. The shipowner and its insurance company may attempt to steer you to health care providers that will not provide you the best care but, rather, make recommendations for your treatment that are less costly. This can delay your long-term recovery.
Frequently, shipowners refer seamen for a second opinion. This doctor then disputes the recommendations of the seaman’s original treating physician. Based upon this second opinion, the shipowner and its insurance company then deny the seaman further medical treatment and maintenance payment. Under these circumstances, termination of maintenance and cure benefits is improper. Where two qualified doctors disagree as to the course of treatment for an injured seaman, an employer and their insurance company must resolve all doubts as to entitlement to maritime benefits in favor of the injured seaman. The employer cannot hire a second opinion doctor to refute a treating doctor’s opinions with respect to the issue of whether or not the injured seaman has reached maximum medical cure or whether he is entitled to continued medical treatment. For example, where a treating doctor has recommended surgery, and a second opinion doctor has recommended against surgery, the seaman is entitled to have the surgery recommended by his treating doctor. Similarly, if a treating doctor recommends further therapy, and a second opinion doctor recommends against further therapy, the insurance company, under these circumstances, should resolve the issue in favor of authorizing further treatment.
Where a seaman is injured on a vessel and the injury aggravates a preexisting condition, the vessel owner nevertheless has a duty to pay the seaman’s medical expenses. A vessel owner may not deny a seaman medical care based upon the fact that a seaman’s condition at least, in part, preexisted the beginning of the voyage. A situation such as this may arise where a seaman has a prior back injury, then aggravates that back condition while working on board the vessel; he is entitled to benefits. Employers may attempt to limit their exposure for preexisting medical conditions by use of a pre-employment medical questionnaire. If an employee fails to disclose a preexisting medical condition when asked by his employer, the employee sometimes may be barred from obtaining maintenance and cure benefits. However, if you are denied maintenance and cure based upon a failure to disclose a preexisting condition this does not mean that you cannot claim damages for injuries caused by negligence or unseaworthiness of the vessel.
Our law firm has won the right to maintenance and cure benefits for countless seamen. A few of our recent cases can be read below:
Strong v. American Seafoods Et al., U.S. District Court, W.D.Wash., C99-1830P
Boyden v. American Seafoods, Et al., 2000 AMC 1512 (W.D.Wash.)
Dubois v. Northern Hawk, 2000 AMC 1510 (W.D.Wash. 2000)
Courtney v. American Seafoods, U.S. District Court, W.D.Wash., C98 1559Z
Anderson v. Tynes Enterprise Inc. Et al., C02
Mog v. Ralph Collins, U.S. District Court Alaska, A01-0250-CV (HRH)
Myers v. M/V SEABROOKE INC, Et al., U.S. District Court Alaska, A00-368 (JWS)
Lightfoot v. F/V ARCTIC STORM, W.D.Wash., C93-112 WD
YOUR RIGHT TO MAINTENANCE
In addition to paying your medical expenses, the shipowner must also pay an injured seaman a daily maintenance allowance until the seaman has reached maximum medical cure or is fit to return to duty. A seaman who is released to light duty, but who has not yet reached maximum medical cure, continues to be entitled to receive maintenance.
Contractual rates of maintenance are not binding upon most seamen. Calculating the maintenance rate for a seaman varies but, typically, in Washington and Alaska the average daily maintenance rate ranges between $25-$40 per day. The Fifth Circuit Court of Appeals in Hall v. Noble Drilling Services recently set new standards for calculating maintenance rates. In determining your daily maintenance rate the following are some of the expenses that may be considered: monthly rent or mortgage payments, utilities, and a daily food expense. Maintenance is typically paid on a once or twice a month basis.
Maintenance payment benefits are typically somewhat smaller than the rate paid to workers under state workers’ compensation schemes. However, an injured seaman has the right to bring an action against his employer for the recovery of compensation for disability, pain and suffering, future lost earnings, and disfigurement. Under maritime law, if successful in proving negligence or unseaworthiness of the vessel, a seaman may recover compensation in addition to his maintenance and cure payments. The type of compensable damages for an injured seaman is far greater than the permissible damages under state workers’ compensation systems.
YOUR RIGHT TO UNEARNED WAGES
According to federal statutes, most maritime employers are required to have a written employment contract with their seamen. Failure to have a written contract may result in the seaman claiming additional wages and penalties.
When a seaman becomes ill or injured during his employment contract, and that injury or illness prohibits the worker from continuing the voyage, the seaman is entitled to his contractual wages until he is fit to return to duty. These contractual wages are called unearned wages until the end of the voyage. You do not have to prove negligence or fault in order to receive unearned contractual wages.
At Beard Stacey Trueb & Jacobsen, LLP, we assist commercial fishermen, tug boat crews, ferry workers, and processor deckhands with maintenance and cure benefits. For effective representation in a maritime injury accident, contact our admiralty and maritime attorneys at law to discuss your case in a free initial consultation.
