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Judge Rules Surveillance Has No Probative Value in Maintenance and Cure Claim

The United States District Court has ruled that a surveillance video taken of a Jones Act seaman had no probative value in the seaman's maintenance and cure claim. In Meir v. Wood Towing, 2010 WL 2195700, the employer disputed the seaman's right to maintenance and cure and refused to pay the seaman's back surgery bill and other related medical expenses of $83,000. The injured seaman's treating doctor recommended surgery for the crewman who alleged he had slipped and fell on a slippery substance on a barge. The injured seaman had an abnormal MRI and discogram at L5-S1. The employer requested a second opinion by an orthopedic physician who initially agreed with the treating doctor that an anterior surgical fusion was reasonable.

The employer then conducted surveillance of the injured seaman, a technique frequently employed by employers' insurance companies. The undercover film showed the injured seaman lifting plywood into his pick up truck, lifting some boxes and pounding a stake into the ground. The employer showed this film to the doctor from whom they had requested a second opinion, and the second opinion doctor changed his opinion that surgery was necessary. The second opinion doctor thought the surveillance film showed the injured seaman doing tasks inconsistent with the need for surgery.

The District Court Judge was unimpressed with the employer's surveillance film stating:

"plaintiff's carrying a sheet of plywood shows he was careful in handling the plywood so that the tail gate of the truck supported the weight as he pushed the board into the truck. Plaintiff's driving a stake into the ground does not demonstrate strain on his part as he uses a hammer to hit the stake and drive it a few inches into the ground. His handling the box shows it was not a heavy load as he effortlessly changed the position of the box once it was in the truck. Also, the handling of a small table by two men is no indication that plaintiff was engaging in lifting activity that was inconsistent with his claimed injury..... Viewing the cited instances in the context in which they occurred, the videos have no probative value."

The Court awarded the injured seaman all the medical expenses that he sought but declined to award punitive damages. In not awarding punitive damages, the Court stated that the employer had good reason to question the injured seaman's veracity based upon the seaman's false answers to numerous questions on the employment application, including falsely answering questions about his education, criminal record and prior work injuries. The Court also set the maintenance rate at $40 a day for the seaman and ordered back maintenance to be paid.

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