The opinion of the court was delivered by: Shirley Kram, District Judge
Plaintiff moves for daily maintenance payments by his employer, defendant Queen of Hearts Cruises, Inc., with regard to an injury plaintiff allegedly suffered while at work on a ship. Defendant terminated daily maintenance payments after defendant's doctor examined plaintiff on July 8, 2002 and reported that plaintiff exhibited no sign of ongoing disability or functional impairment of his left knee. Prior to that, plaintiff was receiving daily maintenance payments of $15.00 from his employer.
Maintenance and cure is a remedy that a shipowner must provide to seamen who become ill or injured while in the service of a ship. The Osceola, 189 U.S. 158, 175 (1903). A seaman who is injured or ill while in a ship's service is entitled to "maintenance" payments from the shipowner to cover the cost of his food and lodging. Vaughan v. Atkinson, 369 U.S. 527, 531 (1962). A seaman is also entitled to "cure," i.e., payment of medical expenses incurred in treating his injury or illness. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528 (1938). The shipowner must pay maintenance and cure until the seaman recovers or until his condition is diagnosed as permanent and incurable, i.e., the point known as "maximum cure." Vella v. Ford Motor Co., 421 U.S. 1, 4 (1975).
A seaman has the burden of showing that his injury manifested itself while he was in the service of the vessel, and a presumption of entitlement exists in his favor. See Vella, 421 U.S. at 4. A shipowner may request reasonable medical documentation of the seaman's claim before commencing payment. See McWilliams v. Texaco, Inc., 781 F.2d 5145 (5th Cir. 1986). However, all doubts as to entitlement, defenses, necessity of treatment and attainment of maximum cure are resolved against the shipowner. See Vaughan, 369 U.S. at 532; Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990); Seifried v. Mon River Towing, Inc., 388 F. Supp. 233, 236 (W.D. Pa. 1974).
In the instant case, defendant ceased making maintenance payments to plaintiff after defendant's medical expert examined plaintiff and concluded that he was no longer injured. However, plaintiff asserts that his treating physician has recommended arthroscopic surgery for his knee injury. With such conflicting medical opinions in this case, it cannot be concluded that plaintiff has reached the point of maximum cure and that defendant is relieved of the burden of maintenance payments. Such a determination is to be made by the finder of fact, in this case, the jury. The point of maximum cure is a medical determination, not a legal one, and all doubts are to be resolved in favor of the plaintiff. Breese v. AWI, Inc., 823 F.2d 100, 104 (5th Cir. 1987).
Accordingly, defendant is hereby ordered to resume daily maintenance payments to plaintiff at the rate of $15.00 per day.*fn1 However, with respect to the issue of whether defendant must pay for plaintiff's proposed knee surgery or whether he has reached the point of maximum cure, such issues shall be decided by the jury at trial. Experts for both plaintiff and defendant will be able to present their opinions of plaintiff's medical condition at that time, and the jury will properly decide these issues of fact.