Injured at Sea?
You didn’t think things could get worse after you were knocked to the deck of your ship. Little did you know that four weeks later you would be told to go back to work—even though your injury hasn’t fully healed and you can barely walk without pain. What should you do if you’re still hurt, but your employer’s doctors swear you’re fit for duty?
“Maintenance and Cure”: A Powerful Remedy
Under the law of admiralty, a vessel owner is required to pay the food and lodging costs and necessary healthcare expenses of a seaman injured while in his or her service until the seaman's maximum medical recovery. Maintenance and cure refers to the provision of, or payment for, food and lodging (maintenance) as well as any necessary health-care expenses (cure) incurred during the period of recovery from an injury or malady.
This remedy was created to protect seamen from the dangers of living and laboring at sea.
"Ties" go to the Seaman
Admiralty courts have been liberal in interpreting this duty for the benefit and protection of seamen who are its wards. Furthermore, when there are ambiguities or doubts, they are resolved in favor of the seaman.
The obligation to provide maintenance and cure is, unlike negligence, not based on fault and is separate from and supplemental to compensatory damages. Where a seaman suffers injury or falls ill while in the service of the ship, the owner and the ship are liable, regardless of fault, for the seaman's maintenance and cure.
Punitive Damages for Unreasonable and Willful Delay
It your employers’ duty to provide “maintenance and cure” compensation promptly. But, in light of the realities of the current healthcare system, an injured seaman often will be unable to obtain necessary medical treatment unless he can first demonstrate the ability to pay.
Some courts have held that a delay of only one month before approving surgery was both unreasonable and willful. The law provides for the imposition of punitive damages for the willful and wanton disregard of the maintenance and cure obligation. This is to encourage a vessel owner to make a prompt decision about maintenance and cure payments and to make those payments when obligated to do so.
What Is Maintenance?
“Maintenance” is the living allowance a seaman is paid while he recovers from an injury. It is meant to offset the costs of living that the seaman would otherwise not have to pay if he were receiving regular room and board on his vessel. In most circuit courts, a worker’s daily "maintenance rate" is calculated by adding up his monthly expenses (house payment, water bills, gas and electricity, food, etc.) and dividing the total by the number of days in the month. Thus, this money should be used only for necessary household expenses, such as rent, food, home insurance, and utility bills. These payments should continue until the seaman is fully able to return to work or until his medical condition has improved as much as physically possible.
"Am I Allowed to Raise My Maintenance Rate?"
There are many cases when the maintenance rate you have been given is no longer enough to meet your monthly costs. Here are just a few circumstances where a maintenance rate may be too low:
Union membership: Some union contracts have a separate daily maintenance rate that differs greatly from what you are entitled to under the Jones Act. There may be exceptions to this rule depending on where you live, so if you are a union seaman who is trying to survive on a reduced union maintenance rate, you should contact an attorney to find out what options are available to you.
Added expenses: Many injured workers do not take all of their expenses into account when documenting their costs. There may be some costs that are only paid every few months (such as home insurance or property taxes) or even once a year that can easily be overlooked, while new ones may be added due to life changes.
Unforeseen costs: Daily maintenance forces workers and their families to live on a tight budget, and if something goes wrong, they could be set back for weeks or even months. If a pipe bursts in your home, you will likely pay out-of-pocket for a plumber or a night in a hotel (at least until you can make an insurance claim), leaving precious little money left over for bills.
When it comes to increasing your daily maintenance rate, the most important thing you will need is proof of your expenses. You should be vigorously documenting every cost you have, and every payment you and your family make per month, and submit the information to your employer. If you have already done this and your employer has not increased your maintenance rate, you may be able to take action against him and win further compensation.
"My Maintenance Got Cut Off, Can I Apply For Unemployment?"
Applying for Unemployment after you get cut off from maintenance can subject you to criminal penalty. Seriously.
If you are temporarily totally disabled or permanently disabled from returning to your customary work or usual work, you cannot file for California Unemployment benefits. It is our understanding that most states have similar laws, but be sure to check your state laws just in case.
Under California law you have to state under penalty of perjury that you are ready, willing and able to work in order to qualify for California Unemployment benefits. Many high profile criminal arrests are for lying under penalty of perjury. District Attorneys usually take this very seriously. So should you.
Instead, you need to file for California State Disability Insurance benefits. This isn't welfare. The State of California takes money out of your check every week. You paid into the system. You should use the money you paid in when you are entitled to the benefits. You will need to have a doctor state that you are unable to perform your usual work.
You can collect up to one year of California State Disability benefits.
If you get cut off from maintenance and you are able to perform your usual and customary work, then go back to work. If you are unable to find work, then you are eligible to file for unemployment benefits.
What Is Cure?
“Cure” refers to any medical expenses a seaman may need to treat an injury or illness. Most maritime employers are required to pay any reasonable and necessary medical expenses that have arisen due to the seaman’s injury. Expenses may include hospital stays and outpatient visits, but also diagnostic testing, physical therapy, rehabilitation, prescriptions, nursing bills, medical equipment (such as wheelchairs or prosthetics), pain clinic visits, and even transportation costs to and from medical appointments. Seamen have a right to full payment for cure costs until they have reached a point where further treatment will not improve their condition.
The Doctor You See Can Have a Big Impact on Your Recovery
As you can see, your company doctor has a vested interest in getting you back to work quickly. If you go back to work, your employer can stop paying both your maintenance and your medical bills—and they will want that to happen as soon as possible, regardless of what is best for you.
Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation.