Maintenance & Cure Claims
Under general maritime law an employer has an obligation to provide its injured employee with “maintenance and cure”.
What is Maintenance?
Maintenance is money that your employer is obligated to pay you if you’re injured while working offshore. The amount that your employer pays you is dependent on how much it costs for you to live on land.
In other words, maintenance typically includes
- costs for your lodging
- monthly bills while you are injured
Most companies pay a fixed rate of $15.00 to $30.00 per day as maintenance. There is absolutely no basis in the law for the payment of this amount. Most companies arbitrarily select this amount and argue that it has been paid for many years to injured seamen. You are entitled to receive however much it costs to maintain your yourself while you are injured.
What is Cure?
Cure is considered medical expenses that are reasonable and related to your injury. Your employer should be paying for your medical expenses, regardless if you are using a company doctor or your own personal doctor.
You are allowed to select your own choice of treating physician and your company MUST pay for any medical treatment which is reasonable and related to your injury.
The following are examples of medical costs that may be covered under cure benefits:
- tests (X-rays, MRI, CT scan);
- hospital services;
- prescription medication;
- physician services;
- travel expenses;
- emergency services; and
- home healthcare.
The following are 3 things you should know about medical treatment pertaining to maintenance and cure benefits:
- maintenance and cure ends when you reach maximum cure (in other words, treatment is no longer necessary or will not improve your condition);
- you may still be considered permanently disabled even if you reach maximum cure; and
- punitive damages may be available if your employer intentionally refuses to pay for reasonable maintenance and cure.
What Maintenance and Cure Doesn’t Cover
While maintenance and cure provides funds to help a worker pay for medical costs and cover room and board and other daily expenses while injured, these benefits do not cover everything. Jones Act coverage is intended for certain types of medical care and the necessities of life.
Jones Act workers’ compensation does not pay for:
- Medical costs after reaching “maximum medical improvement.” This means a doctor has deemed the worker will no longer continue to improve from treatment, even if unable to return to work.
- Medical treatments that are not curative in nature. These refer to treatments not designed to help the worker heal or get better, like elective procedures.
- Treatments for injuries that did not occur at the workplace.
- Treatments for injuries or conditions that occurred before the worker was employed.
- Some workers are unfamiliar with their rights if they have been injured or may be confused by what is covered.
- Those who are injured as a result of employer negligence may be entitled to file a lawsuit to recover damages beyond what is provided in maintenance and cure.
How Can You Make Sure You Get Enough Maintenance and Cure?
We recommend that you download the “Maintenance & Cure Worksheet”. In this worksheet, we give a recap on maintenance and cure, as well as provide an Expense Form. You can fill out this Expense Form and send to your company. Make sure you copy the letter before sending. This ensures that both you and your company have a physical copy of how much it costs for you to make your bills and continue surviving during your injury. This will be important if your company refuses to pay the full amount and you are forced to find legal representation.
What if Your Employer Refuses to Give You Enough Money?
If your employer fails to pay maintenance and cure, you can then have a judge or jury decide whether or not your employer should pay.
To do this, you will need the help of a maritime attorney to file a maintenance and cure claim that successfully argues that your employer was (1) unreasonable in failing to pay maintenance and cure and (2) arbitrary in refusing to pay maintenance and cure. If you intend to file a maintenance and cure claim, we recommend that you document all of your living and medical expenses and maintain records of everything.
If your employer is found to be unreasonable in failing to pay maintenance and cure to you, you may be awarded attorney fees associated with having to file suit in order to receive maintenance and cure. Additionally, if your employer is found not only to be unreasonable but also arbitrary in failing to pay maintenance and cure, you may be awarded damages for any worsening of your condition due to your employer’s failure to pay your maintenance and cure.
The law states that all ambiguities or doubts in regard to a maintenance and cure claim should be resolved in favor of the seaman. This doctrine gives you an idea of how strong your rights are to maintenance and cure benefits.
Can You Still Receive Maintenance and Cure if You Go Back to Work?
Did you know you can actually get maintenance and cure benefits even if you’ve returned to work? The test under Maintenance and Cure Law is not whether or not you’re able to do any type of work at all.
The test under Maintenance and Cure Law is, are you still getting medical treatment that could result in a betterment of your condition or have you not yet reached maximum improvement, maximum cure in regard to your injury? Even if you go back to light-duty, temporary-type work to make some money, that does not necessarily mean that your company has to stop paying you maintenance and cure.
Should You Keep Logs of Your Expenses After an Injury?
Yes, records of lodging and meal expenses after an offshore accident should be kept when an injury prevents a maritime worker from staying on his or her vessel. When during the course of working, a maritime employee gets injured; the employer must provide maintenance and cure benefits. Maintenance is a daily allowance that covers living expenses after an offshore accident when receiving medical care or treatment off the vessel.
Nevertheless, it can be important to keep receipts and records even if maintenance benefits are set, as some cases may call for a lawsuit against the employer if negligence was the cause of the injury. This is why it’s important to keep receipts, or at the very least copies of them, that keep track of expenses after an offshore accident.
Keep in mind that maintenance benefits are to cover room and board, along with food costs. So, if the injured worker is hospitalized, maintenance benefits wouldn’t be necessary because cure benefits takes care of medical expenses.
Cure Benefits Available to Injured Maritime Workers
Cure benefits cover reasonable medical costs and expenses after an offshore accident. But they are only available until the employee reaches maximum medical improvement. This doesn’t necessarily mean the worker has totally recovered, but it does mean the injury has been treated as well as it can be.
How Hard is it to Win a Maintenance & Cure Claim?
Under the landmark decision of Vaughan v. Atkinson, the United States Supreme Court held that all doubts and ambiguities are to be resolved in favor of the seaman in regard to maintenance and cure claim. This means that there is a very light burden of proof for you to win your maintenance and cure claim.
This favorable case law can be very helpful in demanding that your employer pay maintenance and cure as your case progresses. All employers understand that a jury will be told that all doubts and ambiguities are to be resolved in your favor at trial. Although this does still require that you present sufficient proof to win your claim, you have less of a burden to win your maintenance and cure case than does your employer. The law favors awarding maintenance and cure rather than denying it to you.
Maintenance and Cure Resolved In Favor of Seaman
The law states that if any ambiguities or doubts exist concerning an employee’s entitlement to maintenance and cure, they are to be resolved in favor of the injured seaman. For example, in Vaughan v. Atkinson, the plaintiff seaman checked into a hospital for suspected tuberculosis 5 days after returning home from a voyage. After being treated and discharged from the hospital, the plaintiff sought maintenance and cure from his employer and forwarded his medical records to the employer indicating a strong possibility of active tuberculosis. The employer made only minimal inquiries into the validity of the plaintiff’s claim, and did not respond to the plaintiff’s request for maintenance and cure benefits. In addressing the issue of ambiguity over whether the seaman contracted the disease while in the service of the employer’s vessel, the Supreme Court stated that “… the shipowner’s liability for maintenance and cure [is] among the most pervasive of all and [is] not to be defeated by restrictive distinctions nor narrowly confined. When there are ambiguities or doubts, they are resolved in favor of the seaman.” Although there may have been some uncertainty as to whether the plaintiff contracted tuberculosis before returning to port, the court gave deference to the welfare of the seaman and awarded maintenance and cure benefits accordingly.
What is the jury told when they consider my maintenance and cure claim?
What is the jury actually told is the law when they are considering your maintenance and cure rights? What law does the jury apply to your maintenance and cure claims? Well here are the ACTUAL jury instructions that the United States Fifth Circuit Court of Appeal says should be read to the jury regarding maintenance and cure. This federal Fifth Circuit court overseas the states of Louisiana, Mississippi, Texas and others.
IMPORTANT NOTE–In 2009 the law regarding punitive damages for failing to pay a maintenance and cure claim changed. A seaman can now seek punitive damages in addition to the other damages listed in the attached jury charges. The law on maintenance and cure got better for injured maritime workers in 2009.
What Should You Do Next?
1. First, we recommend you download the “Maintenance & Cure Worksheet“.
2. Next, you can visit our Maintenance & Cure Blog to further educate yourself.
3. You can also request a hard copy of our book “Secrets to Maintenance and Cure Law“.
4. Lastly, if you have any questions, you can always feel free to call us: toll free at (866) 666-5129.