MAINTENANCE
AND CURE FOR SEAMEN FOUND "FIT FOR DUTY" - A
SURVEY OF CASES
(Published October
1995)
When a crewmember is injured or falls ill during the course of employment, he or she is entitled to maintenance and cure ("M&C") benefits. The shipowner must continue paying M&C provided the crewmember is receiving curative medical treatment, and until the crewmember reaches "maximum medical cure." Farrell v. United States, 336 U.S. 511 (1949). At this point, the crewmember's treating physician normally issues a "fit-for-duty" slip and the crewmember returns to work. It would seem logical therefore that once a fit-for-duty slip is obtained from the crewmember's treating physician and the crewmember returns to work, the obligation of the shipowner to pay M&C ceases.
In most jurisdictions, however, this is not the case. In fact, case law is clear that the obligation to provide M&C continues until maximum medical recovery has in fact been achieved. The courts have reasoned that the mere issuance of a fit-for-duty slip by an examining physician does not necessarily mean a crewmember has been cured. See Gooden v. Sinclair Ref. Co.,378 F.2d 576,579 (3d Cir. 1967); Vaughan v. Atkinson, 369 US 527, 531 (1962), Koslusky v. United States, 208 F.2d 957, 959 (2d Cir. 1953); Permanente Steamship Corp. v. Martinez, 369 F.2d 297, 299 (9th Cir. 1966); Labenz v. National Shipping & Trading Corp., 153 F. Supp.785,786 (E.D. Pa.1957); Protogvrouv. Lines,42 F.3d 1386, 1994 US App. LEXIS 34225, *5 (4th Cir. 1994); Labenz v. National Shipping and Trading Corp.,153 F. Supp. 785,786(E.D. Pa.1957). And if the seaman suffers a relapse, M&C may be reinstated. Morales v. Gargak, Inc., 829 F.2d 1355, 1988 A.M.C. 1075 (5th Cir. 1987). In some cases, however, a seaman's unreasonable delay in seeking medical treatment may suspend the employer's obligation to pay M&C. Cargo Ships v. Tankers, Inc. v. McDonald, 435 S.W.2d 866, 1970 A.M.C. 245 (Tax. Civ. App. 1968).
In Protogyrou, supra, a seaman brought suit in admiralty for M&C against his employer, Farrell Limes. The seaman suffered from incurable colitis and had fallen ill in December 1988 while sailing aboard a Farrell Lines vessel. In January, 1989, his treating physician diagnosed his condition as acute enteritis and the seaman was hospitalized. After further testing, he was found to be HIV-positive. He responded well to treatment and was discharged in February 1989. He steadily improved and on June 30, 1989 was declared "fit for duty, " at which time Farrell Lines terminated his M&C payments. The seaman later suffered a colitis relapse and was re-hospitalized in October 1989. While hospitalized, subsequent testing revealed he was suffering chronic idiopathic colitis, an incurable condition. He was discharged on December 22, 1989.
In a suit concerning maintenance and cure, the trial court held that although it ultimately appeared the seaman was suffering from an incurable condition, an accurate diagnosis had not been made with reasonable certainty until his October and December 1989 hospitalizations and therefore Farrell was liable for M&C until that date. The Court of Appeals noted "[a] shipowners duty to provide maintenance and cure extends until the seaman is "cured" of his sickness or his incapacity is declared to be permanent. . . this point in time, known as "maximum cure", is reached "when it appears probable that further treatment will result in no betterment of the seaman's condition. " Farrell Lines argued unsuccessfully that the diagnosis in January 1989 of AIDS-related colitis terminated its duty to provide M&C since it was an incurable condition. The Court also rejected Farrell Lines' argument that the fit-for-duty determination made on June 30, 1989 terminated its duty to provide M&C, as the "[i]ssuance of a fit-for-duty slip by an examining physician does not necessarily mean a seaman has been cured."
In Kosluskv, supra, plaintiff brought suit against the United States for damages under the Jones Act and for M&C. 209 F.2d at 957. Plaintiff was hospitalized on September 14, 1944, for abdominal pains and nausea and he was discharged from medical treatment on November 29, 1944, with a recommendation for a thirty day convalescence. He received outpatient treatment at the US Public Health Service Hospital and was discharged as fit for duty in May 1945. He was examined later that month and passed for sea duty aboard an oiler, which he served on for approximately three months, when his illness returned. After treating in various hospitals, he was discharged in September 1951, and declared permanently unfit for sea duty. The lower court awarded M&C from November 29, 1944, through September 1951, or until he was permanently discharged, excluding those periods when he was hospitalized and/or serving on other vessels. The Court of Appeals affirmed.
Defendant argued that when plaintiff was found "fit for duty" and signed aboard the oiler, maximum improvement in his condition had been reached and liability beyond that time was unjustified. Based on the evidence presented however, the Court concluded plaintiff was suffering from an illness of a recurring nature, and it was not until his final discharge in September 1951 that it became clear no further the improvement was possible. The award to plaintiff was upheld as reasonable.
In Permenente Steamship Corp., supra, the shipowner contended its obligation to provide M&C terminated as a matter of law when the seaman voluntarily resumed his maritime employment aboard another vessel subsequent to the injury-producing accident aboard its vessel. 369 F.2d at 298. The Ninth Circuit Court of Appeals disagreed, holding:
A vessel's obligation to furnish maintenance and cure to a seaman who is injured or taken ill during his service continues until the seaman achieves maximum recovery; that is until the seaman is well or his condition is found to be incurable. And we think it is the better view that employment aboard another vessel (or the issuance of a United Stated Public Health Service certificate of fitness), 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. L. at 298-299
In fact, a seaman is allowed to present evidence that his recovery is incomplete. Capone v. Boat St. Victoria, 1989 A.M.C. 1782 (D. Mass. 1989).
Not all courts have adopted these views, particularly where a seamen re-employs himself in his accustomed trade. Some courts have adopted the view that re-employment in a seaman's accustomed trade ends the right to M&C from a former employer, and have refused to grant M&C for any period of time following the date of re-employment. See Silva v. Luckenback S.S. Co., 14F. Supp. 719(D.C. Mass. 1936) [Court refused claim for payment of maintenance incurred after seaman became re-employed]; see also Inter Ocean S. S. Co. v. Behrendsen, 128 F.2d 506 (6th Cir. 1942) [Seaman's right to M&C from his former employer terminated upon reemployment in his accustomed trade, as the owner's obligation to provide M&C is discharged when a seaman has successfully re-entered gainful employment; any continuing duty extends beyond the injury causing voyage only for such time as is required to effect such improvement in the seaman's condition as reasonably may be expected to result from medical treatment].
Other courts have taken the position that although an employer's obligation to provide M&C may continue beyond period a seaman is re-employed, where a finding is made that the seaman had reached maximum possible cure prior to reemployment, the former employer cannot be held liable for M&C for any period following the re-employment. See Griggin v. Oceanic Contractors, Inc., 664 F.2d 36 (5th Cir, 1981), rev's on other grounds, 458 U. S.564, 102 S. Ct.3245, on remand, 685 F. 2d 139 [An injured seaman has a right to recover M&C under general maritime law until either the end of the voyage or the end of the contractual period of employment; but if the seaman recovers from the injury and is fit to return to duty prior to the termination of the voyage or its contractual period, he is not entitled to receive M&C past that point].
In light of the foregoing, a conclusion can be drawn that although a crewmember may have a fit-for-duty slip, if he has not actually reached a state of maximum medical care, he will likely be entitled to continued M&C from his employer from the time the original illness manifested itself or the injury occurred, even if he obtains employment aboard another vessel. When hiring crewmembers, or allowing them to return to duty, a thorough physical examination and an accurate historical account of the crewmember's physical condition is therefore imperative. A thorough knowledge of the crewmember's physical condition, both past and present, can enable the shipowner/employer to assess what job duties the crewmember is capable of, and possibly prevent new injuries from occurring or old injuries from becoming exacerbated.
