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).
In the American Seafoods Company Case the Defendant denied payment of maintenance and cure pending an agreement by the seaman to appear for a compulsory physical examination. The seaman’s employer refused to provide maintenance and cure during the time the seaman refused to appear for the compulsory physical examination.
The court recognized the employer/ship owner has the right to investigate a claim for maintenance and cure before paying maintenance and cure. However, the court said there was no support for the employer’s contention that the right to investigate included a right to a compulsory physical examination. The inquiry is very limited. If the seaman’s injury is clearly related to being in the service of the vessel, and the treatment is clearly curative, there is not much more to investigate. If a qualified physician, based on an objective MRI, has found that there is an injury that requires surgery, the compulsory physical examination is nothing but a tool to stir contentions, cause delays and invite litigation over a seaman’s right to medical care, which is exactly what is suppose to be avoided when making maintenance and cure decisions. Any ambiguities or doubts are suppose to be resolved in favor of the seaman so that the medical care gets provided promptly, and not after a long delay based on a shipowner stirring contentions, causing delays and raising other issues that prolong the seaman from receiving the treatment.
The American Seafoods Company case is a case that directly addressed this very issue of whether an employer could in good faith deny payment of maintenance and cure based on a failure of the seaman to appear for a compulsory physical exam. The court concluded no, under the facts, and in fact affirmed the lower courts determination that the failure to provide maintenance and cure was unreasonable, willful, arbitrary and capricious. The seaman received compensatory damages, as well as his attorney’s fees.
Another case, Bloom v. Weeks Marine, Inc. 227 F. Supp. 2nd 1273, 1274 (M.D.FLA. 2002), involved a case where a seaman’s employer argued it had a legal right to conduct a maintenance and cure medical examination before providing maintenance and cure. The court rejected the argument, stating that the employer’s duty to monitor the seaman’s medical condition did not include a right to have an expert witness physician exam the seaman pursuant to the maintenance and cure claim. However, that court did refer to the employer’s right during litigation to a compulsory physical examination in accordance with the Rules of Civil Procedure.
The bottom line is that if you have sufficient medical evidence showing the seaman is in need of curative treatment, and the employer does not have a legitimate bases to challenge the qualifications of the doctor making the recommendations, the treatment cannot be delayed by insisting upon the seaman appearing for a maintenance and cure examination or a compulsory physical examination under the Rules of Civil Procedure.
We made these exact arguments in our case that we recently presented to an arbitrator, and asserted our right to attorney’s fees and punitive damages based on the cruise line’s denial of reinstatement of maintenance and cure unless our client appeared for a compulsory physical examination before their expert physician they selected. No decision has been rendered yet, but if the maintenance and cure principles are followed, clearly a seaman’s employer is not entitled to make such a demand on a seaman in order to provide maintenance and cure.
Our firm continues to act as advocates for the rights of all seamen.