Summary
ordering vessel owner to guarantee payment for neurological testing
Summary of this case from Hedges v. Foss Mar. Co.Opinion
No. C04-820P.
September 1, 2004
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR PAYMENT OF MAINTENANCE AND CURE
This matter comes before the Court on Plaintiff's Motion for Payment of Maintenance and Cure. (Dkt. No. 9). Having reviewed the pleadings and supporting materials, the Court GRANTS Plaintiff's motion in part and orders Defendant to pay maintenance and cure as follows: $2,878.00 for treatment in the Maui Medical Center emergency room, $607.00 for radiology expenses incurred in the emergency room visit, guarantee payment of the recommended neurological testing and an MRI as well as further medical treatment as necessary, and $4,428.00 in maintenance. The Court DENIES Plaintiff's request for payment of his attorney's fees and costs because Defendant's conduct was not so egregious as to warrant attorney's fees and costs.
BACKGROUND
The parties agree that Plaintiff worked as a seaman aboard Defendant's fishing vessel THE ALASKA SEA, and that Plaintiff was struck on the head by a crab pot on August 21, 2003. Plaintiff does not dispute Defendant's assertion that Plaintiff stopped working for 30 minutes and then returned to work. He continued to work until September 15, which was the end of that particular crab season. Later, on October 10, 2003, Plaintiff signed a contract to work the last two weeks in October, 2003 in which he represented that he was fit for duty and had no known injuries. He worked these two weeks without incident.
Plaintiff argues that the evidence to support this assertion is inadmissible hearsay. The evidence comes from an accident report form that the captain of THE ALASKA SEA filled out regarding the crab pot injury. This argument is unpersuasive because the Court finds that this report was in all likelihood a business record filled out in the ordinary course of business (i.e. when there is an accident on the vessel) that was not prepared in for the purpose of litigation. The Court notes that Plaintiff does not dispute the veracity of this factual allegation.
Plaintiff saw Dr. William B. Meinke on January 16 and 19, 2004. Based on Plaintiff's symptoms, Dr. Meinke recommended that Plaintiff have an MRI done to rule out possible disk herniation and that Plaintiff receive further treatment as necessary. Dr. Meinke opined that Plaintiff's symptoms were consistent with the crab pot injury Plaintiff described to Dr. Meinke. While it is not clear what Plaintiff was charged for these visits, it appears that Defendant has reimbursed Plaintiff.
Plaintiff also saw Dr. William T. Eilert at the Maui Memorial Medical Center emergency room on April 5, 2004. Based on Plaintiff's symptoms, Dr. Eilert recommended that Plaintiff receive neurological testing and further treatment as necessary. Like Dr. Meinke, Dr. Eilert opined that Plaintiff's symptoms were consistent with the crab pot injury Plaintiff described to Dr. Eilert. Plaintiff was charged $2,878.00 for the emergency room visit and $607.00 for radiology. (Plf's Mot., Ex. 3).
Attached to the parties' pleadings is a series of letters and faxes that the parties exchanged prior to this lawsuit. Plaintiff requested that Defendant pay the emergency room related costs and also guarantee to pay for neurological testing. There is nothing in the letters to indicate that Plaintiff specifically requested Defendant guarantee payment of an MRI test. It does not appear that Defendant ever denied the neurological testing payment outright. Rather, Defendant requested that Plaintiff provide additional evidence that these costs and this further treatment were necessary and were related to his crab pot injury. In response, Plaintiff filed this lawsuit and now seeks to compel payment of maintenance and cure. Specifically, Plaintiff seeks reimbursement for the emergency room related costs and a guarantee of payment for the treatment that both doctors recommended, as well as maintenance from August 21, 2003 of $18.00 per day.
ANALYSIS
"[A] seaman who falls ill while in the service of his vessel is entitled to . . . maintenance and cure." Dragich v. Strika, 309 F.2d 161, 163 (9th Cir. 1962). The obligation does not depend on the negligence or fault of the shipowner. Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1044 (9th Cir. 1999). The obligation to pay maintenance and cure continues until the seaman "reaches maximum medical recovery." Vaughan v. Atkinson, 369 U.S. 527, 531 (1962). This obligation is construed liberally in favor of the seaman and all doubts and ambiguities are construed in favor of the seaman. Id. at 531-32. In light of this standard, one court has held that the obligation to pay for cure extends to a duty to guarantee payment of reasonable medical treatment. Sullivan v. Tropical Tuna, Inc., 963 F. Supp. 42, 45 (D. Mass. 1997). Defendant argues that this is an out-of-circuit case that is not binding. The Court has found no Ninth Circuit case that addresses this particular question. This Court finds that reasoning in Sullivan persuasive and therefore reaches the same conclusion.
Here, Plaintiff has presented evidence that doctors have recommended both neurological testing and an MRI, as well as further treatment as necessary. Defendant argues that Plaintiff's return to work the day of the injury as well as in October is evidence that Plaintiff had recovered and that further treatment five months after the injury is not warranted. While a seaman's return to work may be some evidence that he has recovered, Complaint of Robins, 575 F. Supp. 584, 487-88 (W.D. Wash. 1983), in this case it is not unreasonable that Plaintiff would not have realized the full extent of his injuries until later, especially given the nature of his injuries. Ninth Circuit precedent indicates that subsequent employment, "although evidence of the fact that the seaman had fully recovered, is not conclusive. There is ample authority holding that if the seaman can establish that he had not in fact fully recovered, his return to work does not terminate his right to maintenance and cure from the vessel in whose service he was injured or became ill." Permanente S.S. Corp. v. Martinez, 369 F.2d 297, 299 (9th Cir. 1966) (citing Vaughn). The fact that both doctors opined that his symptoms were consistent with his crab pot injury weighs against any conclusion that his return to work indicated a full recovery. As the Supreme Court held in Vaughan, doubts and ambiguities should be construed in favor of the seaman. For this same reason, the fact that Plaintiff signed a contract in October, 2003 indicating that he was fit for duty and suffered no known injuries does not negate Plaintiff's claim to maintenance and cure. Therefore, the Court GRANTS Plaintiff's motion and compels Defendant to guarantee payment of the neurological testing that Dr. Eilert recommended and the MRI that Dr. Meinke recommended. The Court also compels Defendant to pay the $2,878.00 for the emergency room visit, $607.00 for the associated radiology charges.
As to payment of maintenance, Defendant does not contest that the $18.00 per day is the applicable maintenance rate. Plaintiff seeks payment for the entire time since the accident on August 21, 2003 through when he filed this motion on June 24, 2003. However, Plaintiff continued working from August 21, through September 15, 2003 and from October 15 through October 22, 2003. Because maintenance is to compensate the seaman for the value of quarters and meals while working on the vessel, the obligation to pay maintenance begins the date the seaman leaves the vessel, not the date of the injury. Morales v. Garijak, Inc., 829 F.2d 1355, 1359 (5th Cir. 1987). Based on this same logic, Defendant is not obligated to pay maintenance for the days that Plaintiff worked because he received room and board those days. The obligation extends until the seaman has reached maximum recovery. Consequently, it includes periods when the seaman is not receiving medical treatment, so long as the seaman has not recovered. Boyden v. American Seafoods Co., 200 A.M.C. 1512, 2000 WL 33179294, *2 (W.D. Wash. 2000). Therefore, Plaintiff is entitled to unpaid maintenance from September 16 through October 14, which is 29 days, and from October 23 through the present day June 24, which is 246 days. At $18.00 day, this obligates Defendant to pay $4,428.00 in maintenance. Further, Defendant's obligation to pay maintenance continues until Plaintiff has reached maximum recovery.
Lastly, Plaintiff requests payment of his attorney's fees and costs. A defendant is liable for the attorney's fees and costs incurred to secure payment of maintenance and cure when the defendant's failure to provide payment was "arbitrary, recalcitrant or unreasonable." Kopczynski v. The Jacqueline, 742 F.2d 555, 559 (9th Cir. 1984) (citing Vaughan, Icandela v. American Dredging Co., 659 F.2d 11, 15 (2d Cir. 1981), and Gaspard v. Taylor Diving Salvage Co., 649 F.2d 372, 375 (5th Cir. 1981)). Here, there is no indication that Defendant has acted arbitrary or unreasonable, or been recalcitrant. Defendant's request to see additional evidence to support Plaintiff's request is reasonable. Therefore, the Court DENIES Plaintiff's request for attorney's fees and costs.
CONCLUSION
The Court GRANTS Plaintiff's motion in part and orders Defendant to pay maintenance and cure as follows: $2,878.00 for treatment in the Maui Medical Center emergency room, $607.00 for radiology expenses incurred in the emergency room visit, guarantee payment of the recommended neurological testing and an MRI as well as further medical treatment as necessary, and $4,428.00 in maintenance. The Court DENIES Plaintiff's request for payment of his attorney's fees and costs because Defendant's conduct was not so egregious as to warrant attorney's fees and costs.
The clerk is directed to provide copies of this order to all counsel of record.