Opinion
Civil Action No. 02-2983, c/w 02-3364 and 03-0235 Section: E/2.
July 16, 2004
ORDER AND REASONS
Plaintiff's Jones Act claim was tried to the Court on April 27 and 28, 2004. The Court's opinion is pending. Defendant Crescent Marine Towing ("Crescent Marine") discontinued plaintiff Richard Clark's ("Clark") maintenance payments shortly after the trial, on or about April 30, 2004. On June 25, 2004, the Court heard oral argument and testimony on plaintiff Richard Clark's motion to reinstate his maintenance payments (r.d. 248).
BACKGROUND
Dr. Henry Eiserloh, an orthopaedic surgeon and Clark's treating physician, testified that in his opinion Clark suffers from "discogenic" persistent low back pain although his orthopaedic and neurological examinations were normal and there were no objective findings of herniation or impingement. Dr. Eiserloh explained that discogenic pain is caused by the irritation of tiny nerve fibers inside the outer portion of the disc. In September of 2003 Dr. Eiserloh recommended an L5-S1 fusion based on Clark's continued complaints of pain. The purpose of the surgery is to relieve the pain.
Surgery was initially scheduled for February 3, 2004, conditioned on a presurgical blood test in January to confirm that Clark had stopped smoking. Clark did not appear for his blood test and the scheduled surgery was cancelled. At trial Dr. Eiserloh testified that he was unaware until defendants took his deposition that Clark had a 20 year history of cocaine addiction, marijuana use, alcoholism and prior back injuries. Clark had not indicated that he had an extensive history of substance abuse on his Patient Intake Form, nor did he inform Dr. Eiserloh during his interviews and examinations.
Dr. Eiserloh testified that he informed Clark that he would not operate until Clark had a full psychiatric evaluation, underwent substance abuse treatment, and finally, quit smoking. His notes from Clark's office visit on March 22, 2004, stated that although Clark had apparently quit smoking at some point, by that date he had resumed smoking. As of the date of trial Clark had not undergone surgery, although it was at that time scheduled for June, 2004. At the hearing on his motion for reinstatement of his maintenance payments, Clark testified that the June surgery date had been cancelled, and surgery was rescheduled for August, 2004.
ANALYSIS
Under general maritime law a seaman is entitled to maintenance (food and lodging) and cure (necessary medical services) if he becomes ill or is injured in service of a vessel. Sharp v. Stokes Towing Company, Inc., 989 F. Supp. 791, 795 (N.D.Ms. 1998), citing Davis v. Odeco, 18 F.3d 1237 (5th Cir.), 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994); Leocadio v. Lykes Bros. Steamship Co., 282 F. Supp. 573, 575 (E.D.La. 1968). Maintenance payments are intended to compensate the seaman for his support, that is, his living expenses, while he is undergoing treatment for his illness or injury. Oswalt v. Williamson Towing Company, Inc., 488 F.2d 51, 53 (5th Cir. 1974). He is entitled to maintenance only until such time as he reaches maximum medical cure. Coulter v. Ingram Pipeline, Inc., 511 F.2d 735, 739 n. 4 (5th Cir. 1975), citing M. Norris, The Law of Seamen § 560 (2d ed. 1962), G. Gilmore and C. Black, The Law of Admiralty 262-268 (1975) and Leocadio, 282 F. Supp. at 575; Sharp, 989 F. Supp. at 797.Maximum medical cure or improvement is reached when no further improvement can be expected from further treatment and care of a continuing disability resulting from injuries sustained by a seaman. Coulter, id., citing Leocadio, 282 F. Supp. at 575; Sharp, 989 F. Supp. at 796; Henry v. Candy Fleet Corp., 2001 WL 121913 *9 (E.D.La. 2001) (Porteous, J.) (maximum medical improvement is the point beyond which medical treatment will not reduce the seaman's disability, be curative, better the seaman's condition or improve his health). Moreover, a vessel owner need not pay for medical treatment which will be "only palliative" or "only reduce his pain." Henry, at id., citing Stanovich v. Jurlin, 227 F.2d 245, 246 (9th Cir. 1955); Sharp, 989 F. Supp. at 796 n. 2. "Palliative treatments refer to medical treatments which go to the reduction of pain or intensity without curing the underlying problem." Henry, at id. A seaman can forfeit his right to cure and, correspondingly, maintenance, if he unreasonably refuses medical treatment by simply rejecting all timely medical attention or by quitting participation in a course of recommended therapy already begun. Oswalt, 488 F.2d at 53.
Finally, it is the seaman's burden, albeit a "feather light" burden, to prove the value of his maintenance. His own testimony as to his reasonable costs of room and board where he is living is sufficient. Sharp, 989 F. Supp. at 796, citing Yelverton v. Mobile Laboratories, Inc., 633 F.2d 1129 (5th Cir. 1981).
Crescent Marine, Clark's former employer, argues that the question of Clark's right to maintenance was at issue in the trial, both as a matter of fact and of law, and that he failed to offer any evidence whatsoever to prove the value of the maintenance to which he claims he is entitled. Further, the only evidence Clark offered at the hearing on his motion was his testimony that Crescent had been paying him maintenance of $15.00 at day, and that he was in necessitous circumstances without that amount. Crescent also argues that Clark reached maximum medical improvement long before the trial, and that he has failed to mitigate his damages because his refusal to quit smoking has repeatedly delayed his surgery.
See Pre-Trial Order, dated and signed on April 15, 2004, at pq. 15, nos. 3 4; pg. 16, nos. 3 5; and pg. 17, no. 6.
While the Court agrees that Clark did not offer any evidence as to his living expenses and did not meet even his "feather light" burden, it concludes that he is not otherwise entitled to continued maintenance payments. Dr. Eiserloh testified that the purpose of his recommended surgery was to reduce Clark's pain, that is, the treatment is palliative, not curative. Moreover, Clark has consistently failed to follow the course of action (or therapy) that is a prerequisite to his surgery — he failed to quit smoking prior to his three prior scheduled surgeries, and has offered no evidence that he has undergone treatment for his admitted abuse of alcohol and cocaine. Dr. Eiserloh admitted at trial that patients with a history of substance abuse are poor candidates for surgery to alleviate pain and are harder to treat because they complain of more pain, that is, the pain response is a factor of their substance abuse. The Court finds that Crescent is not liable to Clark for continued payment of maintenance.
Beginning on July 29, 2002, Clark was treated conservatively by Dr. McCain, a pain management specialist. In November, 2002, Dr. Bartholomew, a neurosurgeon, recommended that Clark quit smoking in order to undergo surgery. Clark terminated his relationship with Dr. Bartholomew and returned for a period of time to Dr. McCain. He first saw Dr. Eiserloh in September, 2003. Dr. Eiserloh scheduled surgery the first time for February 3, 2004, but Clark failed to show up for a required blood test to confirm that he had quit smoking. He again failed to stop smoking prior to surgery rescheduled for June, 2004.
Accordingly,
IT IS ORDERED that plaintiff Richard Clark's motion for an order to reinstate his maintenance payment is DENIED.
New Orleans, Louisiana, this 16 day of July, 2004.