The opinion of the court was delivered by: DAVID HERNDON, District Judge
On October 18, 2004, Plaintiff Betty Frost filed an admiralty
complaint against Defendant Teco Barge Lines under the Jones Act,
46 U.S.C. § 688, et seq., and general admiralty and maritime
law to recover for personal injuries sustained in the course and
scope of her employment as a crew member aboard one of
Defendant's vessels (Doc. 1). Now before the Court is
Plaintiff's Motion for Cure, Punitive Damages and/or Attorney
Fees (Doc. 14). Defendant opposes Plaintiff's motion (Doc.
16). For the reasons set forth below, the Court grants in part
and denies in part Plaintiff's motion.
"Under maritime law, 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 (1951). "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 (1962); see also In re RJF Int'l Corp. for
Exoneration from or Limitation of Liability, 354 F.3d 104, 107
(1st Cir. 2004). Specifically, "[c]ure 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) (quoting Farrell v. United
States, 336 U.S. 511 (1949); Myles v. Quinn Menhaden
Fisheries, Inc., 302 F.2d 146, 150 (5th Cir. 1962)). "Thus,
where it appears that the seaman's condition is incurable, or
that future 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 cure has been
achieved." Pelotto, 604 F.2d at 400(citations omitted);
accord Cox v. Dravo Corp., 517 F.2d 620, 623, 627 (3d Cir.
1975) (maintenance and cure payments not required if additional
treatment is only to "arrest further progress of the disease or
to relieve pain").
The shipowner's liability for maintenance and cure is pervasive
and is not to be narrowly confined. Vaughan, 369 U.S. at 532.
"A shipowner must pay maintenance and cure for any illness or
injury which occurred, was aggravated, or manifested itself
while the seaman was in the ship's service." Stevens v.
McGinnis, Inc., 82 F.3d 1353, 1357-58 (6th Cir.), cert.
denied, 519 U.S. 981 (1996) (citing Martin J. Norris, The Law of Seamen § 26:21 (1985)); see also
McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547, 548 (5th
Cir.), cert. denied, 393 U.S. 894 (1968). "Maintenance and
cure is payable even though the shipowner is not at fault, and
regardless of whether the seaman's employment caused the injury
or illness." Stevens, 82 F.3d at 1357 (citing Calmar S.S.
Corp. v. Taylor, 303 U.S. 525, 527 (1938)). A plaintiff need
not prove negligence to establish a claim for maintenance and
cure because the obligations are contractual. Sulentich v.
Interlake Steamship Co., 257 F.2d 316, 320 (7th Cir.), cert.
denied, 358 U.S. 885 (1958); Mullen, 191 F.2d at 85;
Wactor v. Spartan Transp. Corp., 27 F.3d 347, 352 (8th Cir.
1994). Ambiguities and doubts are to be resolved in favor of the
seaman. Vaughan, 369 U.S. at 532.
Plaintiff asserts that her medical records demonstrate that she
suffers from lumbar facet arthropathy and sacroiliitis, secondary
to her work-related injury of January 3, 2004 for which Dr.
Moacir Schnapp has recommended treatment in the form of
medication, nerve blocks and possible physical therapy (Doc. 15,
Brief in Support of Pl.'s Motion for Cure, Punitive Damages
and/or Attorney Fees, Ex. K, Letter of Moacir Schnapp, M.D. to
Kirk E. Karamanian dated Jan. 19, 2005). Plaintiff argues that
notwithstanding Dr. Schnapp's recommendation, Defendant persists
in refusing Plaintiff this treatment in derogation of its cure
obligation. Plaintiff asserts that Defendant's proffered reason
for its denial of cure is Dr. Schnapp's "fleeting" reference to a
non work-related peripheral neuropathy in his December 6, 2004 office note (Id. at Ex. E, Report of Moacir
Schnapp, M.D., dated Dec. 6, 2004). Plaintiff argues that
accepting defense counsel's invitation to provide clarifying
information on this injury (Id. at Ex. I, Letter of Ronald E.
Fox to Kirk Karamanian dated Jan. 6, 2005), Plaintiff submitted
Dr. Schnapp's January 19, 2005 letter which removed any ambiguity
concerning the causal relationship between the January 3, 2004
shipboard accident and the lumbar facet arthropathy and
sacroiliitis (Id. at Ex. K, Letter of Moacir Schnapp, M.D. to
Kirk E. Karamanian dated Jan. 19, 2005).
In response, Defendant argues that the treatment recommended by
Dr. Schnapp is purely palliative, and not curative, so it is
beyond Defendant's cure obligation. Defendant argues that nowhere
does Dr. Schnapp say that his recommended treatment plan will
cure the underlying conditions. Defendant argues that Dr.
Schnapp's January 19, 2005 letter makes it clear that the nerve
blocks, pain medication and physical therapy may, at best, reduce
Plaintiff's pain. Thus, Defendant reasons, the costs associated
with these treatments are excluded from Defendant's cure
After reviewing the record, the Court finds that the medical
treatment is clearly related to the work injury and aimed at
resolving pain at the injury site so that the soft tissue has an
opportunity to relax and heal. This is a well-accepted treatment
modality and is part of cure. Accordingly, the Court finds that
Plaintiff is entitled to cure. However, the Court finds Plaintiff
is not entitled to an award of attorney's fees because the medical is confused with a non-work
related issue and Defendant's failure to pay was not willful.
Compare Vaughan, 369 U.S. at 530-31 (awarding attorney fees
after concluding that the shipowner was "callous" and
recalcitrant in its "willful and persistent" refusal to pay
maintenance and cure which was "plainly owed.")
Similarly, the Court finds that Plaintiff is not entitled to
punitive damages. While the Seventh Circuit has not considered
whether punitive damages are available under general maritime
law, both the Fifth and Ninth Circuits have held that punitive
damages are not available to seamen for their employer's willful
failure to pay maintenance and cure. See Guevara v. Maritime
Overseas Corp., 59 F.3d 1496, 1512 (5th Cir. 1995) (en banc)
(finding that punitive damages should not be available in any
action for maintenance and cure, even in those contract-like
actions that can only be brought under general maritime law);
Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1505 (9th
Cir. 1995) (same); see also Watters v. Harrah's Illinois
Corp., 993 F. Supp. 667 (N.D. Ill. 1998) (Alesia, J.) (same).
The Court finds the reasoning of the Fifth and Ninth Circuits
persuasive on this issue.*fn1 Therefore, even assuming
Defendant's failure to pay cure was willful and wanton which it
is not Plaintiff would not be entitled to punitive damages. III. Conclusion
In conclusion, the Court GRANTS in part Plaintiff's Motion
for Cure, Punitive Damages and/or Attorney Fees (Doc. 14).
Specifically, the Court DIRECTS Defendant to comply with its
cure obligations, and provide Plaintiff with the treatment
outlined by Dr. Schnapp in his January 19, 2005 letter (Doc. 15,
Ex. K, Letter of Moacir Schnapp, M.D. to Kirk E. Karamanian dated
Jan. 19, 2005).
Plaintiff's Motion for Cure, Punitive Damages and/or Attorney
Fees is DENIED in all other respects.