Although it may be limited to the facts of the case, a Washington state court determined that an employer could not condition a seaman’s receipt of maintenance and cure upon her attendance at an independent medical examination (“IME”). In Mai v. American Seafoods Company, LLC, the seaman was injured when a 40-pound box struck her knee. After multiple arthroscopic surgeries, the seaman’s treatment consisted mainly of going to a gym and taking pain medications. The employer “abruptly ended” maintenance and cure payments. One month later, the seaman’s treating physician determined that she was a candidate for a total knee replacement (“TKR”). Five days before the scheduled surgery, the employer faxed notice that it would not pay for the surgery absent an IME. Further, maintenance and cure would not be paid because of the seaman’s refusal to participate in the IME.
Maintenance (a daily subsistence allowance) and cure (medical treatment) is an ancient obligation imposed on a ship owner. It provides a seaman with “essential certainty of protection against the ravages of illness and injury.” A seaman establishes a right to maintenance and cure by alleging and proving by a preponderance of the evidence (1) her engagement as a seaman; (2) her illness or injury occurred, manifested, or was aggravated while in the ship’s service; (3) the wages to which she is entitled; and (4) the expenditures for medicines, medical treatment, and lodging. Proof of negligence or fault is not required. Once established, the seaman’s entitlement to maintenance and cure is not extinguished until she reaches maximum medical cure, which the employer must prove. Damages for the wrongful denial of maintenance and cure are determined according to the basis of the denial. If the denial was reasonable, then the owner incurs liability only for the amount of maintenance and cure owed. If, however, the denial is “unreasonable, callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent,” then the owner can incur additional liability for punitive damages and attorney’s fees.
Here, the court determined that the denial was arbitrary and capricious. There was never any claim from the owner or statement from the treating physicians that the seaman had reached maximum medical cure. The denial was not a matter of determining what was medically appropriate, but instead about determining what was economically palatable. In the court’s opinion, the proposed IME was merely a matter of trying to secure adverse expert testimony—which was a futile endeavor considering the treating physician’s proposed TKR surgery.
Finally, the court held, the owner wrongfully made the payment of maintenance and cure contingent upon the seaman’s participation in an IME. A vessel owner may refuse maintenance and cure only “if a diligent investigation indicates that the seaman’s claim is not legitimate or if the seaman does not submit medical reports to document his claim.” The court found little support for the proposition that maintenance and cure can be suspended because of a failure to attend an IME.
Mai v. American Seafoods Co., LLC, — P.3d —-, 2011 WL 906910 (Wa. Ct. App. 2011).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)