The Right to Maintenance and Cure
In addition to a claim for damages, a maritime worker is entitled to the right to the maritime equivalent of worker’s compensation more commonly known as the right to “maintenance and cure” is perhaps the most sacred legal right under Admiralty Law. A vessel owner must pay the seaman living and medical expenses to”weather the storm” of an on-the-job injury.
Maintenance is defined as “financial resources by which the injured seaman can weather the financial storm surrounding an occupational injury offshore.” It also includes the expenses necessary to repatriate the seaman to his or her home. Maintenance includes the amount of money per day sufficient to defray the cost of food, lodging and utility expenses during his period of convalescence.
Additionally, the maritime worker is entitled to the payment of “cure”. The right to cure entitles the seaman to be provided proper medical care and treatment. If the medical health care provider retained by the company is not acceptable to the worker, the seaman may select an appropriate doctor of his or her choosing. The employer must further provide for the seaman’s transportation to and from the seaman’s home to the doctor or treatment facility while recuperating. This is gauged on a dollar per mile basis.
Duration of Maintenance and Cure Benefits
The right to maintenance and cure exists as long as the maritime worker medically requires medical care and treatment, and as long as he or she has not reached a point which is known as maximum medical improvement.
Maximum medical improvement is defined as the end of the convalescence of the injured seaman. At that point in time wherein the worker expects no further improvement medically, the worker has reached maximum cure and no other benefits are due. Until the worker reaches that point, he or she is entitled to an allowance for subsistence and medical payments.
Consequences of the Company’s Failure to Pay Maintenance and Cure
If the employer fails to provide maintenance and cure, and such failure or withholding is done arbitrarily, capriciously or in a callous disregard of the claim, the injured seaman is entitled to the payment of attorney’s fees incurred for the prosecution of legal proceedings to have a court of law order the company to make such payments. Additionally, the employer is responsible for any damages associated with such action.
How much should a seaman receive in benefits for Maintenance?
The question often asked is “How much is the maritime worker entitled to for maintenance?” Under the law the maritime employer must pay for the worker’s reasonable living expenses during the seaman’s period of convalescen, living expenses to include rent, home mortgage and utilities.
The amount of maintenance the maritime worker is due, should there be a dispute with the company, shall be determined by the Court based on the evidence presented. If, however, there is an agreement by a collective bargaining agreement with one’s union, the prevailing amount according to that contract will be ordered.
What is of paramount importance for the maritime is that there is not one set amount which the employer is obliged to pay. And, while Courts have ruled that the amount may range from anywhere between $8 and $35 per day, the amount due the maritime worker is solely determined by that individual worker’s average monthly expenses incurred. The amount due an employee is not based upon some arbitrary dollar figure chosen by the company, its insurer or claims representative.
The worker is, however, only entitled to ‘hard costs” for living expenses. For example, the maritime worker is not entitled reimbursement of expenses for room or board if the maritime worker is residing at the home of their parent or relative, rent free. If the worker pays rent to a relative for living expenses reimbursement is allowed.
Medical Expenses, Choice of Physician and Location of Treatment
No greater legal right exists for the maritime worker than the right to of reasonable medical treatment when an injury occurs in the service of a vessel. The right to be afforded medical treatment is a sacred right and the Courts look very unkindly toward a maritime employer who fails to provide said medical treatment or who fails to immediately evacuate an injured maritime worker for medical treatment from a vessel to shore where said treatment is required.
The maritime worker has significant input in the choice of his/her medical provider. The worker also has the right to a second opinion. Additionally, the seaman has the right to be treated at a facility close to his/her residence.
For example, a worker residing in Houma , Hattiesburg , Lafayette , or Baton Rouge is not required to accept medical treatment in New Orleans . Additionally, out-of-state employees are not required to commute to their employer’s state if treatment is available in their home town.
Lastly, if the worker must travel significant distance to a medical provider or medical facility, or must stay at a hotel while receives treatment, The worker is entitled to be reimbursed all reasonable travel and lodging expenses.
What should be remembered is that these rights are the most important rights afforded the maritime worker and the Courts will strongly enforce those rights if prosecuted.
Claims for Unearned Wages:
Any maritime worker who for whatever reason falls ill or becomes injured while in the service of the vessel is also entitled to any unearned wages for which he or she would have been entitled through the end of the vessel’s voyage. It is the general rule under maritime law that unearned wages are due to the end of the mutually agreed end of employment or until the seaman becomes fit for duty.
Defenses to claim for Maintenance and Cure
If a worker becomes injured in the service of the vessel the vessel owner owes maintenance and cure unless the worker was injured due to his willful misconduct.
Willful misconduct includes willful disobeying a lawful order, inebriation (drunkedness), drug abuse and aggressive behavior or fighting. Maintenance and cure has also been denied for contraction of venereal disease and AIDS/HIV infection.
Insler Maritime Law
An employer may also deny maintenance and cure to seamen who lied on a annual pre employment physical or an application for employment about a health condition or previous injury or accident.