Summary
In Malta v. United States, 2001 U.S. Dist. LEXIS 4769 (E.D.La. 2001), the court considered conflicting testimony of two credible doctors regarding two MRIs of plaintiff's knee and whether he had reached MMI. After performing an MRI, which the doctor believed revealed no meniscal tears, performing arthroscopic surgery, prescribing pain medication, and recommending physical therapy, the first doctor eventually concluded that there was nothing more he could offer plaintiff and released him to light to medium duty work.
Summary of this case from Lodrigue v. Delta Towing L.L.C.Opinion
Civil Action No. 00-2047 Section "C" (4)
March 30, 2001
ORDER REASONS
This matter was tried before the Court without a jury on March 22, 2001, on the issue of maintenance and cure. Having considered the record, the memoranda of counsel, the testimony of witnesses, and the law, the Court has determined that maintenance and cure is owed for the following reasons.
Background
On August 15, 1999, Luigi Malta began working as a seaman on the USNS Regulus, a vessel owned by the United States of America and operated, pursuant to a contract, by Bay Ship Management, Inc. On or about November 15, 1999, Malta injured his left knee in the course and scope of his work aboard the ship. Specifically, while opening the cross-over valves behind the vessel's boiler, Plaintiff hit his knee on a wrench that had been resting on top of a nearby milk crate. Plaintiff fell down on top of the wrench, and soon thereafter began complaining of pain and swelling in his knee. However, Plaintiff completed his shift and continued working on the vessel until it reached San Diego, California on November 26, 1999. While the ship was in port, Plaintiff was examined and found fit for modified duty. The medical examiner stated that for ten days, Plaintiff should not engage in prolonged standing, walking, climbing, bending or stooping.
See Exh. 1.
See Exh. 1; Testimony of Malta.
However, the Examining Physician's Report only gave the doctor the option of describing the seaman as "fit" or "unfit". Therefore, on the form, Plaintiff was found "fit" for duty. Plaintiff apparently consulted with his union after being found "fit" despite the doctor's actual finding that he was only fit for modified duty. A dispute about Plaintiffs obligation to report for duty ensued thereafter, which resulted in Plaintiffs being fired, but he was later reinstated. See Exh. 1; Testimony of Malta. These details are only relevant at this stage to the extent that Plaintiff is required to demonstrate that he is eligible for ongoing maintenance and cure.
On December 23, 1999, back in Louisiana, Plaintiff visited Dr. R. Jay French, Jr. ("Dr. French") for treatment of his knee. At that time, Plaintiff reported persistent pain in the left knee and difficulty with crouching and kneeling. At that time, Dr. French recommended that an MRI be taken to determine the extent of Malta's injuries. The MRI was performed on January 6, 2000, and the evaluation stated that "minimal degenerative changes were seen in the medial meniscus. No definite evidence of a tear is seen." Nevertheless, after consulting with Malta, Dr. French recommended arthroscopic surgery for the left knee for January 24, 2000. The surgery was performed as planned without complications, and in his post-operative analysis, Dr. French noted the presence of"left knee plica and degenerative medial meniscus." However, Dr. French testified that no tear of the medial meniscus was found at that time. Over the next few months, Dr. French attempted to wean Plaintiff off of the pain medication he had been taking, despite Plaintiffs continued complaints of pain, and recommended physical therapy. On May 16, 2000, Dr. French reported that Plaintiff was "still complaining of severe pain in the left knee requiring narcotics, " but noted that he planned on giving Malta an injection to reduce inflammation, and that "[i]f this injection fails to relieve his symptoms, I will have nothing further to offer the patient and will release him to full duty work at his next visit." Although Plaintiff was scheduled to return to Dr. French's office in three weeks, Plaintiff did not return to Dr. French until January, 2001, when, at the direction of Bayship Management, Malta appeared for a follow-up examination. At that time, Dr. French concluded that Plaintiff could be released to light or medium duty work, and only needed to avoid lifting more than fifty pounds, or repetitive bending or kneeling.
See Exh.2.
See id.
See Exh.3.
See Exh.4.
See Exh. 5. Both Doctor French and Doctor Seltzer described "plica" in layman's terms as a band of sonovial (i.e. scar) tissue. See Testimony of Dr. French; Testimony of Dr. Seltzer.
See Testimony of Dr. French.
See Exhs. 6, 7, 8, 9 10.
See Exh. 10.
See Exh. 11.
See id.;see also Exh. 13.
In his January 2001 report, however, Dr. French acknowledged that Plaintiff has seen another doctor in the hopes of relieving his pain, and that this doctor was recommending a second surgery. In fact, on June 20, 2000, Plaintiff visited Dr. S. Daniel Seltzer ("Dr. Seltzer"), who after his initial consultation with Malta, recommended a second MRI scan and requested a copy of Dr. French's file, so that he might ascertain an explanation for Plaintiffs ongoing complaints of pain. The second MRI was performed on July 26, 2000, and the Radiologist and Dr. Seltzer noted "localized increased signal involves the posterior horn of the medial meniscus. Tear cannot be definitely confirmed." After consulting with Malta about the potential risks and benefits associated with another intrusive procedure, Dr. Seltzer recommended that a second arthroscopic surgery be performed. Dr. Seltzer testified that there was a chance that there was in fact a tear of the medial meniscus, which either Dr. French had missed or which had developed subsequent to the first surgery, that was causing Plaintiff pain. Dr. Seltzer also suggested that the presence of scar tissue may be limiting the functioning of Plaintiffs knee. Although he has reminded Malta that results can never be assured, Dr. Seltzer estimates the success rate of a second surgery as being between 60 and 70 percent.
See Exh. 11.
See Exh. 14.
See Exh. 16.
See Testimony of Dr. Seltzer.
The Court found both doctors to be highly credible witnesses, and believes that there is simply a difference of opinion regarding whether Plaintiff has reached maximum medical cure, and the possible benefits that could result from a second arthroscopy. Therefore, in a case such as this, the legal issue turns on the question of who bears the burden of proof.
Standard of Review
A seaman who is injured or falls ill in the service of a ship is owed maintenance and cure by the shipowners. See Guevara v. Maintenance Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995) (en banc), cert. denied, 516 U.S. 1046 (1996). Maintenance is a per diem living allowance, see Pelotto v. L N Towing Co. 604 F.2d 396, 400 (5th Cir. 1979), and cure is payment for the seaman's necessary therapeutic, medical and hospital expenses. See Guevara, 59 F.3d at 1499; Pelotto, 604 F.2d at 400. A seaman's right to maintenance and cure terminates when the seaman reaches maximum medical cure. See Pelotto, 604 F.2d at 400. Maximum medical cure is reached "when it appears probable that further treatment will result in no betterment of the seaman's condition." See id. at 400 (emphasis added); see also Johnson v. Marlin Drilling Co. 893 F.2d 77, 80 (5th Cir. 1990). If further treatment "will merely relieve pain and suffering but not otherwise improve the seaman's physical condition, it is proper to declare that the point of maximum medical cure has been achieved." Pelotto, 604 F.2d at 400.
In this case, Malta's rate of maintenance has been established by a Collective Bargaining Agreement at $8.00 per day and is undisputed by the parties.
A shipowner must have unequivocal medical evidence that maximum medical cure has been attained before terminating maintenance and cure for such reason. See Johnson, 893 F.2d at 79; Tullos v. Resource Drilling, Inc., 750 F.2d 380, 388 (5th Cir. 1985). When there are doubts or ambiguities as to a seaman's right to receive maintenance and cure, they are to be resolved in favor of the seaman. See Vaughn v. Atkinson, 369 U.S. 527, 532 (1962); Johnson, 893 F.2d at 79.
The Court specifically asked Dr. Seltzer whether this second surgery was merely palliative or whether he believed that the surgery could improve the functional capacity of Plaintiffs knee. Dr. Seltzer clearly acknowledged that he hoped that the surgery would achieve both objectives, but that the surgery was aimed at allowing Plaintiff greater use of his knee. In a situation such as the one facing the Court, where there is equally strong evidence presented by both parties as to whether Plaintiff has achieved maximum medical cure, the Supreme Court has clearly instructed the lower courts to resolve those ambiguities in favor of the seaman. Therefore, for the foregoing reasons, the Court finds that Plaintiff is entitled to maintenance and cure, and shall be permitted to proceed with the second surgery at the expense of Defendant.
Conclusion
Counsel for both parties shall attempt to determine amicably the total amount of maintenance and cure obligations owed by Bayship Management to Luigi Malta as a result of this ruling. The remaining issues in this litigation shall be tried to the Court on Thursday, May 24, 2001, at 10:00 a.m.