Opinion
Case No. 1:04 CV 1088.
October 6, 2005
ORDER
Plaintiff John Westfall ("Plaintiff" or "Westfall") filed the above captioned case against Defendant Maersk Line, Limited ("Defendant" or "Maersk") seeking compensation for injuries suffered while working on one of Defendant's ships. Plaintiff also filed several Motions for Authorization and Payment for Continuing Cure and to Pay Retroactive Maintenance. (ECF Nos. 27, 28, 29, 31, 32, 44.) These motions sought payment for medical care for Plaintiff's injured knee, as well as retroactive maintenance. This court referred the motions for maintenance and cure to Magistrate Judge Patricia A. Hemann for preparation of a report and recommendation. The Magistrate Judge submitted her Report and Recommendation on September 16, 2005 (ECF No. 41), recommending that the court grant in part and deny in part Plaintiff's motion. Specifically, the Magistrate Judge found that under the maritime doctrine of maintenance and cure, the court should require Plaintiff to pursue, and Defendant to pay for, the conservative treatment of medication and physical therapy advocated by Plaintiff's physician. In light of Plaintiff's unwillingness to pursue available treatments that do not require surgery, the Magistrate Judge declined at the current time to order Defendant to pay for surgery. The Magistrate Judge also concluded that on the basis of the record before her, she could not determine the appropriate extent of retroactive maintenance owed to Plaintiff.
Both parties filed objections to the Magistrate Judge's Report and Recommendation.
Plaintiff contends that surgery is the only current option, and that Plaintiff's doctor indicated that any other conservative treatment would do not good. The court is unable to find any support in the record for such a proposition. While Plaintiff's doctor did indicate at deposition that physical therapy would be more effective the earlier it is begun, the court has not seen any indication that Plaintiff's doctor now believes physical therapy and anti-inflammatory medication would be ineffective. (Dr. Henry Kurtis Biggs Dep. at 15, ECF No. 28, Ex. A.) Accordingly, Plaintiff's objection is overruled.
Defendant objects to the Report and Recommendation on several grounds. First, Defendant "objects to the finding that Plaintiff's knee injury was caused by his fall on Defendant's vessel." (Def. Obj. 1, ECF No. 43.) However, the Magistrate Judge reached no such conclusion. Rather, the Magistrate Judge concluded that under maintenance and cure precedent, any ambiguities or doubts about coverage should be resolved in favor of the seaman. (RR 4-5, ECF No. 41.) The Magistrate Judge specifically found: "Dr. Biggs has opined that Westfall's torn meniscus was probably the result of his accident. While Maersk succeeds in raising a certain amount of doubt about the correctness of that opinion, that doubt must be resolved in favor of Westfall." ( Id. at 5.) The Magistrate Judge's conclusion does not preclude Defendant from arguing later on at trial that Plaintiff's injury did not occur on Defendant's ship. Rather, the conclusion is solely that for purposes of maintenance and cure, there is sufficient evidence the injury took place on Defendant's ship as to require payment of maintenance and cure.
Second, Defendant asserts that there are factual misstatements in the Report and Recommendation. Specifically, Defendant contends that the alleged injury occurred on December 19, 2002, not 2003. The court notes that while Plaintiff's complaint contains the date December 19, 2003 (Pl. Am. Complt. ¶ 4, ECF No. 4), subsequent briefing by both parties refers to December 19, 2002. (ECF No. 27 at 2; ECF No. 30 at 1.) The court thus makes no specific finding about the date of alleged injury at this time. Defendant also contends that Plaintiff did not remain on the ship following the injury, but was repatriated the next day. This fact is not central to the Magistrate Judge's ruling. To the extent it is under dispute, the court does not adopt any position as to when Plaintiff returned to land after his injury.
Thus, the court finds, after careful de novo review of the Magistrate Judge's Report and Recommendation and all other relevant documents, that the Magistrate Judge's conclusions are fully supported by the record and controlling case law. Accordingly, the court adopts as its own the Magistrate Judge's Report and Recommendation (ECF No. 41).
IT IS SO ORDERED.