From the evidence at trial, it is clear that Bouchard conducted a good faith investigation into McMillan's original claim for, and subsequent requests to reinstate, maintenance and cure. Following McMillan's injury, Bouchard located a neurosurgeon in Florida, where McMillan resided, and arranged for an examination (Tr. 51). Based on Dr. Lora's initial report Bouchard began paying McMillan's maintenance and cure (Tr. 55). Bouchard also paid for McMillan to have an MRI, and physical therapy, both of which were recommended by Dr. Lora (Tr. 56). It was only after having received the results of the MRI, Dr. Lora's report following a second examination, and discussing the issue with him, that Bouchard terminated McMillan's maintenance and cure (Tr. 58-60). Maintenance and cure was terminated based on the results of the MRI and Dr. Lora's opinion that McMillan had reached maximum medical cure (Tr. 60-62).
McMillan notes that although Dr. Lora's second report states that he had reached maximum medical cure, the report also contains a finding that he could "return to work as soon as Dr. Gilman or any other orthopedist decides for him to" (Tr. 58). This, McMillan argues, indicated that he actually had not reached maximum medical cure, and required that Bouchard send him to an orthopedic surgeon to determine if he had in fact reached that level of improvement. McMillan argues further that Bouchard's failure to send him to an orthopedic surgeon, or to continue payments for maintenance and cure, was callous and recalcitrant. These arguments are unpersuasive.
The issues of whether a seaman has reached maximum medical cure, and whether he or she is fit for duty are separate and distinct. A seaman may have reached maximum medical cure, but still not be fit for duty, or vice versa. See, e.g., Koslusky v. United States, 208 F.2d 957, 959 (2d Cir. 1953); Diniero v. United States, 185 F. Supp. 818, 820 (S.D.N.Y. 1960). Dr. Lora's suggestion that McMillan see an orthopedist was to determine whether he was fit for duty, not whether he had reached maximum medical cure. See Lora Dep. at 35. Second, Dr. Lora's opinion that McMillan had reached maximum medical cure was based on a physical examination and the results of the MRI. The recommendation to send McMillan to an orthopedic surgeon was based on his complaints of coccyx pain, which Dr. Lora felt was because of a prior back injury which McMillan had mentioned during the first examination (Tr. 111). See also Lora Dep. at 35. Dr. Lora felt that this back pain was unrelated to the injury suffered on the tug, and the pain mentioned during the first examination (Tr. 65-68). Accordingly, as Dr. Lora opined that McMillan had reached maximum medical cure and that his continued complaints were because of a prior unrelated injury, Bouchard could believe in good faith that it had no duty to pay for McMillan to see an orthopedic surgeon or continue payments for maintenance and cure, and I so find.
In addition to having terminated McMillan's maintenance and cure, Bouchard refused to reinstate such payments following McMillan's repeated requests through counsel. McMillan claims that this conduct was callous and recalcitrant as Bouchard was put on notice that he was in need of additional medical care. McMillan also argues that as Austen had no medical training and did not call the various health care providers which prepared the medical reports, Bouchard did not properly reinvestigate his claim for maintenance and cure (Tr. 72-82). Further, as stated earlier, McMillan argues that his failure to disclose his prior injuries and Valium use was made in good faith, and in any event was not relevant to his employment with Bouchard, this failure could not be used as a good faith basis to refuse to reinstate his maintenance and cure. Based on the evidence and the law, these arguments cannot be sustained.
When a seaman reasserts a claim for maintenance and cure after such payments have already been terminated, it becomes the employer's obligation to reinstate such payments. See Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990); Brown v. OMI Corp., 1994 U.S. Dist. LEXIS 18239, 1994 WL 714445, at *2 (S.D.N.Y. 1994). If the employer refuses to reinstate maintenance and cure, it bears the burden of establishing that it had a legitimate reason for so refusing. Sammon, supra, 442 F.2d at 1029. Consequently, the employer must undertake at least a minimal reinvestigation into the facts of the case, and determine whether the payments should be reinstated. See Brown, supra, 1994 U.S. Dist. LEXIS 18239, 1994 WL 714445, at *2c. However, in such a situation, "there is no authority for the proposition that the employer must seek a medical, as opposed to factual, basis upon which the claim for maintenance and cure can be denied in good faith." Id.
Here, there is no indication that Bouchard did not conduct at least a minimal investigation into McMillan's request to reinstate his maintenance and cure. When initially contacted by McMillan concerning the possible reimbursement of his chiropractic treatments, Austen offered him the opportunity to submit Dr. Pitts' reports and bills and said "he would try and take care of them" (Tr. 215). McMillan submitted the reports and they were reviewed (Tr. 71). In addition, even after McMillan was represented by counsel, Bouchard reviewed all reports submitted by counsel, including those of Dr. Jones (Tr. 66-90). It was during the period of time in which McMillan requested that his maintenance and cure be reinstated that Austen became aware of McMillan's prior back injuries and Valium use (Tr. 111). Even though the new medical reports submitted by McMillan and his counsel stated that McMillan was not fit for duty and in need of continued treatment, Bouchard chose not to reinstate McMillan's maintenance and cure.
The decision not to reinstate McMillan's maintenance and cure was based in part on the newly discovered factual evidence -- the prior back injuries and Valium use -- as well as on Dr. Lora's original opinion that McMillan had reached maximum medical cure on May 18, 1992 (Tr. 111-13). According to Austen, many of the newly submitted reports were based on subjective findings and were inconsistent with the prior objective neurological and radiological findings. Further, a finding that the decision not to reinstate maintenance and cure was made in good faith follows from Bouchard's knowledge of McMillan's statement that "one way or another I am getting off the boat" -- a statement which raised the possibility that McMillan's claim for maintenance and cure was fraudulent even before the injury occurred. McMillan claims that Bouchard's basis for refusing to reinstate maintenance and cure -- the nondisclosure of his Valium use and prior back injuries -- was "a sham" and "a defense concocted for this litigation." Pl.'s Post-trial Mem. at 5-6. What this argument ignores is the fact that Bouchard had a legitimate and good faith basis to deny McMillan's request to reinstate maintenance and cure as early as May 18, 1992 -- Dr. Lora's original opinion that McMillan had reached maximum medical cure. See Sammon, supra, 442 F.2d at 1029. Given this fact, and also that Dr. Lora's May 18, 1992 opinion on maximum medical cure did not change until his deposition, which occurred some 29 months later, there is no indication of bad faith by Bouchard in denying McMillan's continued requests to reinstate his maintenance and cure.
From the evidence presented at trial, and the circumstances surrounding the case, it is clear that Bouchard made a sufficient investigation into McMillan's original claim for maintenance and cure and his subsequent requests to reinstate such payments. Whether based on Dr. Lora's opinion that McMillan had reached maximum medical cure -- even if that opinion ultimately proved incorrect -- or the possibility that (1) his continued complaints were due to an undisclosed prior back injury, (2) McMillan's undisclosed Valium use, or (3) McMillan may have concocted the injury as a pretext for "getting off the boat", Bouchard could reasonably have believed that it had no obligation to continue maintenance and cure, or reinstate such payments upon McMillan's requests. A shipowner acting in good faith need not seek a medical, as opposed to factual, basis upon which a claim for maintenance and cure may be denied. See Brown v. OMI Corp., 1994 U.S. Dist. LEXIS 1223, No. 92 CIV. 5371, 1994 WL 39026, at *3 (S.D.N.Y. Feb. 9, 1994). Even though I find that its decision to deny maintenance and cure was erroneous, under all the circumstances that decision had a good faith basis and certainly Bouchard's conduct was not callous or recalcitrant. Accordingly, McMillan's claim for punitive damages is denied.
Based on the foregoing, McMillan is entitled to maintenance in the amount of $ 40 per day from May 19, 1992, through November 17, 1993. In addition, McMillan is entitled to the actual medical expenses he incurred during that period. Further, McMillan's claim for punitive damages and attorneys' fees is denied as Bouchard's termination of, and refusal to reinstate, his maintenance and cure was neither callous nor recalcitrant.
The parties are hereby ordered to submit proposed judgments upon proper notice to the opposition within thirty days of receipt of this memorandum and order.
Dated: Brooklyn, New York
May 3, 1995
David G. Trager
United States District Judge