What is maintenance and cure?
Under maintenance and cure law there are three important facts that many injured seamen do not realize. First, maintenance and cure ends when you reach the maximum cure. This does not mean that you have fully recovered from your injury. It simply means that your treating physician has stated that he does not believe that your condition will get any better. Many injured seamen, who have suffered permanently disabling injuries, are released from their treating physicians as having reached maximum cure. Even though these individuals are still disabled and cannot return to full duty work, their right to maintenance and cure ends when the doctor releases them from his treatment.
How is my Daily Maintenance Rate calculated?
Normally, the employment contract or collective bargaining agreement (CBA or union contract) fixes the maintenance rate (generally between $ 10 to $ 25 per day). If the contract or collective bargaining agreement does not refer to the maintenance fee, you are entitled to the actual costs of obtaining accommodation and grounding to the extent that they are reasonable for the area.
Can my employment contract or collective bargaining agreement limit the amount of maintenance I am entitled to receive?
Yes. While the maintenance rate described in the employment contract or collective bargaining agreement is “reasonable”, the courts will allow a subsistence allowance at a rate that may be less than your actual daily expenses, while on land.
Am I entitled to compensation if I don’t live on the ship?
Yes. Seamen who work on ships but do not live on board are entitled to it. Typically, seafarers working aboard ferries, tugs, barges, crew boats, fishing boat charters, whale watching vessels, and dive boats fall into this category.
How long am I entitled to compensation?
You have the right to maintenance until your doctor finds you fit for duty (able to return to work) or in maximum medical cure or improvement (a point where your health condition has stabilized). The obligation to cure, however, can also continue after returning to work, if the medical treatment will improve your condition.
Do I have a claim if my condition worsens?
Yes. Your employer is strictly responsible for any type of care provided by any doctor. This includes onboard or shore reference physicians. To demonstrate liability under maintenance and cure or a disability claim, it is not necessary to establish that your employer knew or should have known that the physician had a history of providing substandard care.
If I chose my doctor over a “company doctor”, who pays the difference?
You have the right to select the doctor of your choice. However, the shipowner/operator is only required to pay the amount that a competent physician selected from their network of healthcare providers would have been required to pay. In other words, if you select a doctor who charges $10,000 for a procedure and the owner has an agreement with another competent doctor that charges $7,000 for the same procedure, the owner is only required to pay $7,000 for their procedure and you would owe the $3,000 difference.
What are the sick wages? How long am I entitled to receive sick pay?
A seaman who is injured or becomes ill while on duty is entitled to recover wages that he or she would have earned whether he or she had been able to complete the contractual terms of employment. Such sick wages, unless limited by contract, are due until the end of a seaman’s employment period or until a “fitness for duty” diagnosis occurs, whichever comes first. Sick wages should include the seaman’s salary, as well as reasonable overtime tips and bonuses.
Can My Sick Pay Be Reduced by My Maintenance Payments?
No. Your illness wages cannot be reduced by maintenance payments.
Can my employment contract or union contract limit the amount of sick wages that I am entitled to receive?
Yes. Courts allow parties to contract for the amount and duration of sick wages and enforce these provisions typically found in seafarers’ employment contracts and collective bargaining agreements.
Can my employment contract or collective bargaining agreement limit the obligation to provide me with medical treatment?
No. Your employment contract or collective bargaining agreement cannot reduce the amount or duration of treatment that doctors recommend.
What is the difference between Fitness for Duty and Maximum Medical / Improvement Cure?
In legal terms, it means that your doctor has determined that you are physically well enough to carry out your assigned on-board duties. This means that your condition has reached a point where additional medical attention will not help improve it. Many times, a crew member can be found to be fit for duty, but not in maximum medical healing/improvement and vice versa.
Does my employer owe an obligation to reduce pain through medical treatment if my condition improves?
No. If your condition has stabilized, the courts generally take into account that they have reached Maximum Medical Cure. After you have reached Maximum Medical Improvement, additional medical care may be considered but this will be outside of your employer’s obligation.
What Defenses Are There to Claims for Maintenance, Cure, And Sick Wages?
-Intentional Misconduct – While a seafarer’s willful misconduct constitutes a defense to sickness maintenance, cure, and sick wages, a shipowner remains obligated to provide emergency medical treatment.
-Negligence / gross negligence – carelessness on the part of a sailor who contributes to injuries does not constitute a defense to maintenance, cure, or a claim for sick wages. Even if the carelessness of a sailor is the sole cause of injury or carelessness reached the level of “clumsiness”, the courts have consistently held that this conduct does not constitute a defense.
-Intentional disobedience of legal order – This has been considered to constitute a defense.
-Intentional misconduct – This has been deemed to constitute a defense. Examples of such conduct include injuries related to hiring a prostitute, illegal drug use, and self-inflicted injuries.
-Deliberate concealment of a pre-existing condition – This defense is often referred to as the “McCorpen rule”. To establish the “deliberate concealment” defense, an employer must demonstrate that:
-Plaintiff willfully misrepresented or withheld medical information about a prior injury or condition;
-The undisclosed facts were essential to the employer’s decision to hire the plaintiff, and
-A link between the information disclosed and the damages reported in the lawsuit.
-Failure to comply with doctor’s orders – negligent behavior or refusal to follow the doctor’s recommendations may, in certain circumstances, justify the owner’s suspension to maintenance and cure.
The attorneys at PMR Law have the experience to protect your rights and will fight to obtain the compensation you deserve.
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