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SMITH v. APEX TOWING CO.

January 8, 1997

THERESA GAIL SMITH, Plaintiff,
v.
APEX TOWING COMPANY, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Theresa Gail Smith filed a three count complaint against Defendant Apex Towing Company. In Count I, Plaintiff alleges under the Jones Act injuries resulting from Defendant's negligence. In Count II, she alleges unseaworthiness under General Maritime Law. In Count III, Plaintiff seeks maintenance and cure under General Maritime Law. Plaintiff has filed a motion for partial summary judgment for maintenance and cure. Defendant argues that summary judgment should be denied because genuine issues of material fact exist regarding Defendant's affirmative defense. For the reasons stated below, plaintiff's motion is denied.

 FACTS

 Plaintiff was employed by Defendant as a cook aboard the towboat DEWEY R on November 1, 1995, while the boat was on navigable waters of the Illinois River. At defendant's request, plaintiff underwent a pre-employment physical examination. The results of a lumbar spine x-ray examination reported: "No fracture, subluxation or significant arthritic change. Class I spine." On a health history form completed by plaintiff, she indicated that she had no history of "any back injuries or problems."

 Larry Branch, a junior engineer employed by defendant aboard the DEWEY R on November 1, 1995, states in his affidavit that a few days prior to that date he provided plaintiff with a milk crate and an unsecured piece of plywood for her to stand on in order to work in the galley and to use the mirror in her quarters. Defendant denies that Branch provided plaintiff with this makeshift step stool, but has failed to provide any evidence tending to show that Branch's affidavit is false.

 Plaintiff states in her affidavit that on November 1, 1995, she fell on her back while standing on the makeshift step stool in her quarters. The fall apparently was not witnessed. Larry Branch states that prior to November 1, 1995, Plaintiff appeared to be in good health and displayed no indication of back problems, but after that date she complained of and appeared to be in pain. Defendant denies that plaintiff fell, but has failed to provide any evidence tending to show that the fall did not occur. The Vessel's Daily Log for November 1, 1995, contains the following entry: "Gail Smith fell down and bruised her tail bone." Plaintiff continued working on the DEWEY R until December 5, 1995.

 Plaintiff sought treatment for low back pain on January 18, 1996. A CT scan of Plaintiff's lower back on January 31, 1996, showed a bulging disc at L 4-5. On February 29, 1996, Plaintiff had surgery to remove herniated intervertebral discs. Plaintiff states that because of poor results with the first surgery, she had a second surgery, a spinal fusion, on July 17, 1996. Plaintiff's counsel submits his itemized summary of Plaintiff's unpaid medical expenses totaling $ 30,404.86. Defendant denies that Plaintiff has unpaid medical expenses totaling $ 30,404.86, but has failed to provide any evidence tending to show otherwise.

 Plaintiff states in her affidavit that she has been unable to work since leaving the DEWEY R on December 5, 1995. Defendant denies that plaintiff has been unable to work, but has failed to provide any evidence tending to show otherwise.

 Defendant claims that plaintiff concealed a pre-existing problem with her lower back. Defendant alleges that plaintiff sought emergency medical treatment for "severe back pain" under the name of Theresa Gail Posey in June 1988 at Laird Hospital in Union, Mississippi, and provides a hospital emergency room record to support this allegation. The date of birth on the hospital record matches plaintiff's date of birth. Defendant alleges that the signature "Gail" on the hospital record matches Plaintiff's signature "Gail" on her 1993 driver's license. Plaintiff denies that she received emergency treatment under the name of Theresa Gail Posey in 1988. Plaintiff states that she divorced Robert Posey in 1980 and that in June 1988 she went by the name of Theresa Gail Beckham. Plaintiff states that she never lived at the address shown on the hospital record and that the social security number does not match her social security number. Plaintiff states that she has never used the social security number appearing on the hospital record. Plaintiff states that neither she nor Robert Posey ever worked for the employer identified on the hospital record. Plaintiff denies that the signature on the Laird Hospital record is hers. Plaintiff was treated at Laird Hospital for knee pain under the name of Gail Beckham in June 1987.

 Defendant submits testimony from Paul Johnson, President of Tennessee River Towing, Inc., who hired plaintiff in May 1994 as a cook for a towboat belonging to his company. Johnson testified that plaintiff told him that she had back problems. Plaintiff denies that she told Johnson that she had any back problems. Johnson also testified that plaintiff's alleged back problems did not interfere with his decision to hire her as a cook.

 DISCUSSION

 Under Fed. R. Civ. P. 56(c), a court should grant a summary judgment motion if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). When reviewing a summary judgment motion, the court must read the facts in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The court's role "is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994).

 "Cure and maintenance are rights given to seamen as incidents of their employment." Mullen v. Fitz Simons & Connell Dredge & Dock Co., 191 F.2d 82, 85 (7th Cir.), cert. denied, 342 U.S. 888, 96 L. Ed. 666, 72 S. Ct. 173 (1951) (citing The Osceola, 189 U.S. 158, 172, 47 L. Ed. 760, 23 S. Ct. 483 (1903)). "Maintenance and cure is designed to provide a seaman with food and lodging when he becomes sick or injured in the ship's service; and it extends during the period when he is incapacitated to do a seaman's work and continues until he reaches maximum medical recovery." Vaughan v. Atkinson, 369 U.S. 527, 531, 8 L. Ed. 2d 88, 82 S. Ct. 997 (1962). "Cure means medical care and attention, and maintenance means subsistence during disability." Mullen, 191 F.2d at 85. "Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of 'maximum cure.' Cure involves the payment of therapeutic, medical, and hospital expenses, again, until the point of 'maximum cure.'" Pelotto v. L & N Towing Co., 604 F.2d 396, 399 (5th Cir. 1979). "The ...


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