Recently, I was involved in a case where a seaman suffered an injury to his shoulder while working for a cruise ship company. The injury necessitated a surgery, which the cruise line company arranged and paid for. Following a course of physical therapy, the physician who performed the surgery, a physician hired and paid for by the cruise line, declared my client at maximum medical cure and the cruise ship company ceased payment of any further maintenance and cure. This occurred despite the disagreement of the physical therapist that my client was at maximum medical cure. The physical therapist felt that my client would definitely benefit from further physical therapy in order to improve his strength and range of motion. Clearly, if further physical therapy would improve the strength and range of motion, my client was not at maximum medical cure. However, the cruise ship selected doctor, a notorious workmen’s compensation physician, nevertheless concluded my client was at maximum medical cure as his opinion was the physical therapy was not necessary.
Thereafter, my client continued to have problems with his shoulder, and sought out a medical evaluation by an independent physician he selected and paid for. That doctor ordered an MRI, and concluded there was a re-tear of the shoulder which necessitated a further surgery.
A demand was mode on the cruise ship company to reinstate maintenance and cure. At this point, the case was in litigation. The cruise ship company was provided the medical reports and MRI report, as well as the MRI films, which showed the seaman needed another surgery because of a re-tear of the rotator cuff. Notwithstanding the clear medical evidence of the need for further medical care and treatment, the cruise line refused to reinstate maintenance and cure until the seamen appeared for a compulsory physical examination before their selected expert. Since the client was out of the country, we refused to comply with this request and demanded the reinstatement of maintenance and cure based on the undisputed medical evidence that there was a re-tear and a need for further treatment.
The recommended surgery was delayed for over a year, and ultimately the seaman appeared for a compulsory physical examination, and the defense expert agreed with the proposed surgery, which did eventually take place.
The question became whether the Defendant had a right to delay reinstatement of maintenance and cure based on the request for a compulsory physical examination. Does an employer of a seaman have a right to a compulsory physical examination in connection with their right to investigate a claim for maintenance and cure?
There is a case out of Seattle, Washington, that addressed this precise issue. The case is Thuyen Thanh Mai v. American Seafoods Company, LLC Case No. 63969-2-I (WA Ct. App., Mar. 14, 2011).