Summary of Decision: The Washington State Court of Appeals issued a published decision holding that a shipowner may not condition payment of maintenance and cure benefits on a claimant’s willingness to undergo a “cure independent medical examination” to determine the appropriateness of the treating physician’s recommendations where the treatment is clearly curative. In the case at issue, the court awarded the seaman maintenance and attorney fees because the shipowner “unreasonably, arbitrarily and willfully” withheld maintenance and cure on that basis. Mai v. American Seafoods Company, (Wash. St. Ct. of Apps., Div. I, Case No. 63969-2-I, March 14, 2011).

Background: Plaintiff injured her leg while working aboard defendant’s fish processing vessel. She subsequently had two surgeries, but continued to have discomfort in her knee. Her doctor prescribed a gym membership to strengthen her leg and to delay knee replacement surgery. Defendant questioned whether plaintiff was entitled to further maintenance and cure because her treatment consisted of going to the gym and taking pain medication. Defendant claimed that it was unclear whether that “treatment” was curative.

Defendant eventually terminated maintenance and cure on the grounds that plaintiff’s treatment was palliative, not curative. Defendant said that since plaintiff’s doctor had previously advised that plaintiff was a candidate for knee replacement surgery, it would pay for that surgery as part of cure if plaintiff decided to have the surgery. Shortly thereafter, plaintiff’s doctor recommended the surgery because of her ongoing problems. Plaintiff asked defendant to authorize payment for the surgery.

In response, defendant insisted that plaintiff undergo a cure independent medical examination (“IME”) before it would agree to pay for the surgery. Defendant claimed that it wished to investigate the request for the surgery before approving it, but plaintiff presented evidence the defendant wanted the IME because the surgery was expensive and so that defendant could have a local doctor serve as an expert witness in the anticipated litigation.

Several months later, plaintiff underwent an IME. The IME doctor agreed with the surgical recommendation. Defendant subsequently agreed to pay for the surgery, but refused to pay maintenance for the period that plaintiff had refused to submit to an IME.

Court’s Analysis: The court discussed the standards applicable to maintenance and cure and noted that “all ambiguities and doubts as to the seaman’s right to receive maintenance and cure are to be resolved in the seaman’s favor.” Citing Supreme Court precedent, the court also said that conflicting medical evidence is to be resolved in the seaman’s favor.
Applying those principles to the case at hand, the court explained that the defendant did not dispute that plaintiff needed further treatment, but demanded an IME to investigate possible alternative treatment less expensive than surgery. The court firmly held that the shipowner has no such right. The court said that even if the IME doctor had disagreed with the treating doctor’s surgery recommendation, it merely “would have provided [defendant] with a competing recommendation for treatment of a condition acknowledged to require medical care.” Since all doubts are resolved in the seaman’s favor, a contrary IME result would not allow the defendant to deny the treating doctor’s recommendation.

In further support of this conclusion, the court again cited Supreme Court authority for the principle that the duty to pay maintenance and cure is fundamental and critical to protecting seamen. The duty is intended to be simple to apply in order to avoid delays and disputes. The court found that the defendant’s conduct “frustrates these goals and invites uncertainty, delay and litigation.”

The court concluded that “an IME could not be required where, as here, the seaman established her prima facie burden, the vessel owner agreed to pay maintenance and cure, the owner did not question the need to pay maintenance and cure, the owner did not question the need for some course of medical treatment or the expertise of the treating physician, and the owner recognized the prescribed course of treatment as curative in nature.”

For those reasons, the court found that the defendant’s actions were unreasonable, willful and persistent, entitling plaintiff to recover attorney fees for wrongful failure to provide maintenance and cure.

Takeaway: The facts of this case are somewhat unique – defendant did not dispute that plaintiff was entitled to cure and that the recommended treatment was curative, but sought an IME to identify cheaper alternatives than surgery and for tactical purposes in anticipated litigation. We expect plaintiff’s lawyers, however, will argue for broad application of the court’s discussion of the liberal standards applied to maintenance and cure, particularly with regard to resolving close questions in favor of the seaman. Unless the shipowner presents clear evidence that either no treatment is needed at all or that the treating doctor is unqualified, it will be difficult for the shipowner to obtain an IME to investigate the appropriateness of the treating doctor’s recommendations. Failure to authorize recommended treatment can result in an award of attorney fees and possibly punitive damages.

If you have any questions concerning this issue, please contact the Seattle office of Keesal, Young & Logan at 206.622.3790.

Keesal, Young & Logan Maritime Law Group

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