The present maritime law provides seamen a safety net when they become ill or injured “in service of the vessel.” In short, all maritime employers are obligated to protect their workers if they become ill while on “company time”. “Maintenance and cure” is the maritime equivalent of land-based “worker’s comp“, though with significant advantages for the diver.
Maintenance and cure affords the injured seaman financial resources to weather the financial storm surrounding an occupational injury offshore. It also includes repatriating the seaman to his or her home.
Maintenance entitles the seaman to a per day compensation in an amount sufficient to defray the costs of food, lodging, transportation to and from health care providers and utility expenses during his or her period of convalescence.
Additionally, an injured diver is entitled to the payment of cure. The right to cure entitles the seaman to be provided with proper medical care and treatment; and, if the medical personnel provided to the seaman by the company is not to the commercial diver’s liking, the commercial diver may choose another.
The maritime employer of the 21st century is legally required to provide the injured mariner’s unearned wages for the entire voyage of the vessel, as well as living expenses during the mariner’s period of convalescence (maintenance) and all medical expenses (cure) until the mariner reaches a point of maximum medical improvement. This obligation exists even when the mariner returns to “light duty” or “alternative” employment.
Recognizing the obvious and customary imbalance in bargaining positions between an unrepresented seaman and employer, Admiralty Courts historically interpret the mariner’s legal rights very broadly; and, where doubts as to entitlement, and necessity of medical treatment exists Admiralty Courts will resolve the dispute in favor of the injured mariner.
Summarizing the general rule of the Law of the Sea, an ill or injured seaman must simply establish the following in order to secure maintenance and cure benefits and unearned wages:
(1) Engagement as a seaman;
(2) An illness or injury which occurred, was aggravated or manifested itself while in the ship’s service;
(3) Wages to which he/she is entitled had he/she served through the end of the voyage; and
(4) The expenditures (or liability) he/she incurred for medical treatment and living expenses.
Anytime a diver is “in the service of the vessel” the diver is entitled to maintenance and cure benefits should the diver become injured or ill.
It’s that simple. But, what about the diver who is “on call – standing by” at home, a hotel or company dormitory waiting for orders? There is no difference. Even if not “on the clock” that diver is legally entitled to the same benefits as if the mariner was laboring offshore on a vessel. This status of “being on call” is also generally known as “answerable to the call of duty”.
The key to establishing an “on call” status hinges on whether the diver is obligated or expected to return to the vessel if the diver is “called for service”. If there is such an expectation to report to work if so called the diver is protected. Additionally, in most cases, the law further protects the diver during transit from home, hotel or dormitory to the vessel.
Finally, the law protects a discharged mariner from the time of discharge to a “reasonable time” needed to “wind up his employment” with the employer, such as coming to the vessel to pick up his/her gear, collect his/her pay check or any other activity needed to finalize the employer/ employee relationship.
The “Non work-related” Illness
If a mariner sustains an illness, any illness or injury, or if any injury of illness is “aggravated or manifested” during the mariner’s service to the vessel the mariner is entitled to maintenance and cure benefits. It is of no matter that the illness or injury is work or non work-related. For instance, if a diver sustains a heart attack, contracts pneumonia, exhibits symptoms of emphysema, or manifests the first signs of cancer during his service to the vessel or answerable to the call of duty, his/her employer is obligated.
It is of no consequence that there is no causal link between the diver’s services to the vessel and the injury or illness. As long as the illness or injury was manifested or aggravated during the diver’s service to the vessel he/ she is entitled to benefits.
As many professional mariners are unfortunately learning firsthand, the spread of staphylococcus aureus (staph infections) in the Gulf of Mexico has reached near epidemic proportions. This infection presents major long term health problems for the infected seaman if immediate medical intervention does not occur. Most maritime employers have taken the advice of the medical community in instituting education programs and preventative measures to slow the spread of infection in the maritime workplace. If a seaman contracts staph the seaman is entitled to maintenance and cure benefits.
Defenses to Maintenance and Cure Claims
An employer may defend a maintenance and cure claim by demonstrating that the injury did not occur in the workplace, occurred as a result of the seaman’s own willful misconduct such as gross inebriation, alcoholism, fighting, venereal disease and HIV.
Another defense arises when the diver willfully conceals a prior illness or injury in an application for employment or a diver’s annual physical. Accordingly, it is essential that an injured diver be truthful in completing medical history forms.
In an attempt to avoid the payment of benefits, all too often employers encourage, or even force, seamen to utilize private health insurance to cover costs that fall within the employer’s cure obligations. Often a diver will agree assuming that it does not matter who pays the medical bills as long as they are paid. However, when that diver is no longer able to work, afford or obtain private insurance, it becomes a very real problem for the diver. The dive is entitled to maintenance and cure. It is part of the implied contract the diver entered with the company and is a benefit that partially offsets the fact that seamen are not entitled to workers compensation.
Which medical bills does an employer have to pay under cure?
As part of their duty to provide cure, if a seaman becomes injured or ill while working aboard a vessel, the vessel owner must pay all of the seaman’s reasonable and necessary medical bills. The duty to pay these medical bills continues until the seaman reaches maximum medical cure. All treatment deemed to be curative should be considered cure; this includes doctors and hospital bills, x-rays, MRI and CT scans, bone scans, EMGs, EEGs, medical prescriptions, diagnostic testing, emergency transportation, nursing services, reasonable travel expenses to and from the doctors, physical therapy, and in home health care.
Selection of one’s own physician
An injured diver has the legal right to select his or her own physician. The diver’s employer does not have the right to demand that the injured diver must be treated by the “company doctor”.
Duration of Maintenance and Cure
The right to maintenance and cure exists as long as the diver medically requires it and as long as he or she has not reached maximum medical cure.
Maximum medical cure is defined as the end of the convalescence of the injured diver, that point at which the diver expects no further improvement medically. Until the diver reaches that point he or she is entitled to an allowance for subsistence and medical payments. Unfortunately this does not mean that the injured diver no longer requires medical care just that he or she has recovered to the point that no further improvement is expected.
Consider the case of a diver paralyzed from the waist down and confined for life to a wheel chair. The diver would reach maximum medical improvement allowing termination of benefits soon after the accident but would require medical care for life. A Jones Act suit is the only option to recover that diver’s future medical care.
Consequences of the Company’s failure to Pay
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. A recent Supreme Court case suggests that an employer who arbitrarily withholds maintenance and/or cure may also be liable for punitive damages.
Dollar Amount for Maintenance
The question often asked is, “How much is the diver entitled to for maintenance?” The maintenance payment is calculated on the average monthly expenses for lodging, food and utilities.
Courts have ruled that the fair amount for maintenance should be anywhere between $30.00 – $60.00 per day; typically the average is approximately $55.00 per day.
Often a company will pay an injured seaman a daily maintenance amount and an additional amount which they will title an “advance”. An injured diver should be aware that an insurance company may expect that advances will be deducted from an anticipated settlement. With this in mind, it is important to scrutinize the maintenance check and assure that nowhere on the check is the phrase “partial settlement” or “toward settlement” or “advance of settlement” or something similar found. If it is, be sure to discuss this with an attorney, to ensure that you are not settling your claim or a part of the fnal claim. Please contact Accessible Marine Insurance for additional details.
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