Seaman’s Right to Maintenance and Cure Is Not Subject to Employer’s Demand for Independent Medical Exam

In March of 2011, in Tuyen Thanh Mai v. American Seafoods Company, LLC, the Washington State Court of Appeals upheld the ruling that American Seafoods Company (ASC) did not have the right to deny seaman Tuyen Thanh Mai maintenance and cure when she did not agree to ASC’s demand for an independent medical examination (IME) prior to her knee replacement surgery. The Court also held that Mai is entitled not only to the maintenance and cure that ASC had withheld from her, but also to compensatory damages and attorney fees, sending a strong message to employers that maintenance and cure are fundamental rights not to be denied a seaman.

Mai was employed on the F/T NORTHERN HAWK in 2005 when her left knee was hit by a 40-pound box of frozen seafood which fell off a misaligned conveyor belt. She had a history of knee trouble, and this new injury exacerbated her condition. In late 2006, her doctor prescribed an eventual total knee replacement. ASC demanded an IME, which Mai declined to attend, given her well-documented medical history. ASC stopped her maintenance and cure payments, their reasoning being that Mai had been delaying surgery, that knee replacement was expensive and required another opinion, and that ASC was going to use the IME opinion as preparation for possible litigation.

Under maritime common law, a seaman who is injured or is taken ill in the course of employment on a vessel has the legal right to a daily allowance and to medical treatment for that injury or illness from the vessel owner. This is known as maintenance and cure, cure being the medical treatment. Maintenance is essentially “room and board.” ASC had questioned whether the injury was directly caused by the falling box, but direct cause is not an issue when it comes to maintenance and cure, and it does not matter if the condition was preexisting. What matters is that the seaman was employed on the vessel and that the injury or illness took place in the course of his or her employment on that vessel. The seaman must merely be able to substantiate medical costs, board, and lodging. Mai met all these criteria.

Bloom v. Weeks Marine, Inc., 227 F. Supp. 2d 1273, 1275 (M.D. Fla. 2002), states that the vessel owner may “monitor the seaman’s medical condition to determine when cure has occurred,” but that the owner does not have the right to demand an IME. The case of Mai underscores that an employer may not demand an IME for maintenance and cure, and that they may not base maintenance and cure payments pending that IME.

ASC had been paying maintenance and cure for approximately two years prior to demanding the IME and ceasing payments, ASC had never called into question Mai’s doctor’s credentials, intrinsically acknowledging the legitimacy of Mai’s claim. Mai’s doctors had never reported maximum cure for Mai’s condition. The Court concluded that ASC’s cessation of maintenance and cure was driven by a desire to prepare for possible litigation, not by Mai’s medical needs, and was thus found unreasonable and willful. Therefore, Mai was awarded compensatory damages and her attorney fees in addition to her back maintenance and cure. This is supported by Morales v. Grijak, Inc., 829 F2d 1355, 1358 (5th Cir. 1987), where it’s held that if the vessel owner’s denial of maintenance and cure to a legitimate claim are found to be unreasonable, then the owner will owe compensatory damages as well as the maintenance and cure. As in Bloom, Morales does not support an employer’s demand for an IME.

The court decision in this case reinforces the traditional right of seamen to receive medical care following work related injury. In recent years, with the blizzard of negative attacks on the rights of injured workers, some courts have strayed from the historically solid principles that protect seamen. But, with rulings like Mai and Bloom, perhaps courts will begin to correct the balance firmly back into the seaman’s favor.