JUDGMENT

In accordance with the court's Opinion entered in this action on August 23, 2001, in accordance with the court's Supplemental Order Regarding Maintenance and Cure entered in this action, and in accordance with the court's Findings of Fact and Conclusions of Law entered in action no. 1:98 cv 366,

IT IS ORDERED AND ADJUDGED that plaintiff Michael B. Huss shall take nothing on his claims against the defendant.

Dated this 14th day of November, 2001.

Wendell A. Miles, Senior Judge

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL B. HUSS,

Plaintiff,

THE KING COMPANY, INC.,

No. 1:00‑cv‑43

Defendant.

SUPPLEMENTAL ORDER REGARDING MAINTENANCE AND CURE

This is an action filed by plaintiff Michael Huss, who sought recovery of maintenance and cure payments from his former employer, defendant The King Co., Inc. ("King"), based on injuries which plaintiff alleged he sustained on May 3, 1995 and July 25, 1997. The action was tried, together with action No. 1:98 cv 366, before the court sitting without a jury beginning on July 23, 2001.

Earlier in the case, the plaintiff had moved for summary judgment on maintenance and cure. King never responded to the motion, and a partial summary judgment was entered in plaintiff's favor on the issue of liability for maintenance and cure-‑but not its amount. However, after evidence was presented to the court during trial which had not been presented by plaintiff during summary judgment proceedings, the court found that (1) plaintiff reached maximum medical cure sometime between September and December, 1997, and (2) King properly discontinued maintenance and cure payments as of January, 1998. The court also ruled that King would be entitled to credit, toward any judgment which might be entered in the other lawsuit, for

any sums paid representing maintenance for periods after January, 1998.

Although the court did not invite the parties to revisit the issues of maintenance and cure, plaintiff devoted nearly one‑half of his post‑trial brief to a discussion of these issues. In particular, plaintiff fixes on what the court has found to be an untrue allegation of an aggravation and/or re‑injury in July, 1997. In his discussion, plaintiff relies heavily on certain alleged statements made by King employees, which he argues "should be considered on the issue of any disingenuous behavior on the part of Plaintiff’s counsel." Plaintiff's Supplemental Trial Brief, at 2. Plaintiff concedes that these alleged statements are not before the court as evidence in the case. Id. Even if these statements were made, however, merely because King may have asked its employees about an alleged second injury or re‑injury does not permit the plaintiff to allege the second injury or re‑injury as fact. To date, plaintiff continues to fault King for his own decision to file a pleading alleging a July, 1997 injury, even though plaintiff has, in sworn testimony, denied that such an injury or re‑injury ever occurred.

Moreover, as the court has previously indicated, the evidence indicates that the report of a second injury or re‑injury originated with plaintiff himself in a medical history which he provided to his physician, Dr. Castillo, in September, 1997. That the plaintiff provided false information during a medical history is of concern to the court in assessing plaintiff’s credibility. However, the court has not pursued the issue of sanctions under Fed.R.Civ.P. 11 based on the false allegation of a July, 1997 injury because plaintiff wisely elected to withdraw that allegation during the trial. The court has not addressed the issue of sanctions under 28 U.S.C. § 1927 because such sanctions have not been sought by King.

Plaintiff has continued to argue that he has not yet reached maximum medical cure. In

particular, he contends that his treating physicians have not conceded that further treatment will result in no betterment of his condition. However, the court finds that this is precisely what the evidence shows. As early as November, 1997, Dr. Castillo, who performed plaintiff's surgery, expressed the opinion that pain may be something plaintiff will have to live with. Plaintiff's other treating physician, Dr. Winston, is himself a pain specialist to whom plaintiff was referred for treatment of his pain, not for curative purposes.

"[W]here 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 v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979). In addition, it has long been recognized that "[t]he award of a lump sum in anticipation of the continuing need of maintenance and cure for life or an indefinite period, is without support in [the law]." Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 530 (1938). It is notable that to date, plaintiff has failed to identify any date, either general or specific, by which he projects his purported entitlement to cure will cease. As the court has observed in its Findings of Fact and Conclusions of Law entered in action no. 1:98 cv 366, plaintiff's proofs regarding anticipated future medical expenses have been deficient. The court cannot, under the guise of awarding cure, require King to pay any future medical expenses which plaintiff might wish to send the company's way where, despite years of litigation, plaintiff has failed to document any reasonably projected future needs.

Plaintiff continues to argue that King should be required to pay future cure because plaintiff's doctors at one point considered performing a second surgery but King, according to plaintiff, failed to "approve" payment for it in advance of its being performed. Perhaps the

concept of pre‑approval of medical expenses is one recognized in insurance law, but plaintiff cites no authority indicating that pre‑approval is a concept recognized in the law of maintenance and cure. The court has discovered a case, Sullivan v. Tropical Tuna, Inc., 963 F. Supp. 42, 45 (D. Mass. 1997), which held that "a shipowner's duty to pay maintenance and cure encompasses a duty to guarantee payment prior to treatment for all reasonable medical expenses." However, in that case, the shipowner's insurer delayed one month before authorizing an initial surgery for the plaintiff's injured finger. See also DiBenedetto v. Williams, 880 F. Supp. 80, 88 (D.R.I. 1995) (because it was reasonably necessary for plaintiff to have joint and carpel tunnel surgery in order to reach maximum medical improvement, defendants were liable for reasonable and necessary medical and hospital costs for the surgery). In contrast, here plaintiff had already undergone one surgery which, based on early objective indications, appeared to have produced a good result, and the prospect that he would benefit from a second surgery was controversial. As the court has previously found, plaintiff's own doctors were not optimistic that a second surgery would afford plaintiff relief from his alleged pain. In addition, even the court in Tropical Tuna recognized the existence of another case in which another federal court had indicated that it was "unable to find a single precedent requiring that the maritime employer must guarantee to pay for tests prior to such tests being done." 963 F. Supp. at 45 n. l (citing Dominguez v. Marine Transp. Mgt. Co., 1992 A.M.C. 2862, 2863 (E.D. La. 1992)). Furthermore, the law holds that while a seaman has a right to be treated by the physician of his choice, he cannot be reimbursed for overly expensive or unnecessary medical services. In re Cooper/T. Smith Stevedoring Co, Inc., 942 F. Supp. 267, 269 (E.D. La. 1996). The court is unable to find at this time that a surgical intervention would be reasonable and necessary to improve plaintiff's physical condition.

Because plaintiff has obtained Medicare coverage but has still not undergone a second surgery (and he has presented no evidence that he sought to have Medicare cover a planned second surgery), there is little doubt that plaintiff himself does not see a sufficient medical advantage in undergoing a second surgical procedure on his spine. In addition, plaintiff has never submitted any evidence indicating what portion of any anticipated surgical costs would be covered by Medicare if he was to submit to a second surgical procedure. The availability of Medicare treatment may fulfill a defendant's obligation to provide cure. See Moran Towing & Transp. Co. v. Lombas, 58 F.3d 24, 26 (2d Cir. 1995) (holding that district court correctly rejected employee's assertion that employer could not have fulfilled its cure obligation through the availability of Medicare treatment because the employer had not made any payment on employee's behalf to Medicare).

Plaintiff also argues that his right to maintenance is not affected by his voluntary termination of his employment. The cases which plaintiff cites in support of this argument are not, however, persuasive. In LeBlanc v. B.G.T. Corp., 992 F.2d 394, 400 (1st Cir. 1993), the court recognized that the right to maintenance and cure was not coterminous with employment, but rather continues for a "reasonable period" so that the employee may wind up his affairs. Here, King voluntarily made maintenance payments to plaintiff for a reasonable period of recuperation following his surgery. It was during this period that plaintiff reached maximum medical cure, which is the cutoff point for maintenance and cure. Wood v. Diamond M Drilling Co., 691 F.2d 1165, 1170 (5th Cir. 1982). In addition, plaintiff did not quit his employment with King because he was medically unable to work; rather, as the court has found in its Findings of Fact and Conclusions of Law entered in action no. 1:98 cv 366, plaintiff never intended to return

to his employment after September, 1997, preferring instead to take his chances on a lawsuit against the company.

Plaintiff also argues that in September, 1999, he was deemed to be "permanently disabled." Plaintiff's Supplemental Trial Brief, at 9. Presumably, this is a reference to an award of Social Security disability benefits which he obtained. However, as the court observed in its Findings of Fact and Conclusions of law issued in action no. 1:98 cv 366, such awards are subject to different standards, which plaintiffs counsel well knows do not apply here. The concept of maximum medical cure applies in this action, and the court has found that plaintiff reached maximum medical cure by the end of 1997. In addition, King, of course, would not have been a participant in any Social Security proceedings, and requiring it to be bound by what might have transpired in those proceedings would not only be legally improper but also grossly unfair.

Finally, plaintiff seemingly argues that the court erred in concluding that he did not incur lodging expenses after he ceased working for King in August, 1997 because he was residing at home with his wife and family. It is noted that King voluntarily made maintenance payments to plaintiff between September and December, 1997, even though Dr. Castillo's reasonable projection was that plaintiff would be able to return to work in November, 1997, approximately two months after his surgery. Despite Dr. Castillo's reasonable projection, plaintiff himself has never suggested that he might ever be able to return to work; as with cure, plaintiff apparently believes that King's obligation to pay maintenance should continue indefinitely. However, the law does not impose on the company such an indefinite obligation.

The evidence presented at trial shows that even though King had no obligation to pay maintenance after December, 1997, since the court's earlier decision granting plaintiff's motion

for summary judgment on the issue of liability for maintenance and cure King has paid plaintiff maintenance totaling $19,095. This amount exceeds, by approximately $7,000, what King owes plaintiff as a result of the court's Findings of Fact and Conclusions of Law entered in action no. 1:98 cv 366.

Maintenance and cure is an independent claim that is not contingent upon being able to recover for negligence under the Jones Act or a violation of the duty to provide a seaworthy vessel. West v. Midland Ent., Inc., 227 F.3d 613, 616 (6th Cir. 2000). While King should of course receive credit for what it has paid plaintiff in this action against what is owed in the other action, the court is not aware, at this time, of authority indicating that King should be able to recoup, directly from plaintiff, the funds which it has already paid toward maintenance but which exceed the amount of damages awarded in the other action. While the overpayments were not gratuitous, having been made after the plaintiff procured a summary judgment ruling, it is apparent that King may have been able to avoid these payments simply by filing a written opposition to plaintiff's motion for summary judgment pointing out the deficiencies in plaintiff's claims regarding the medical evidence. In the absence of some persuasive argument to the contrary by King, the court is not inclined to order plaintiff to reimburse King for the overpaid maintenance.

The court has considered the possibility that some of the amount which it awarded in action no. 1:98 cv 366 for past medical expenses, in the form of payments for prescription medications, might be treated as cure and therefore not subject to a reduction for plaintiff’s own negligence‑-at least to the extent that some of these expenses were incurred in September, 1997. However, copies of receipts provided by plaintiff indicate that the amounts paid by plaintiff were

a co-pay, presumably meaning that the remainder of the charges for the prescriptions were covered on some contractual basis. Therefore, the court rejects the treatment of these 1997 prescription expenses actually incurred by plaintiff as cure. CONCLUSION

Notwithstanding plaintiff's failure to file a motion under Fed.R.Civ.P. 60, the court has addressed plaintiff's argument that its reversal on the issue of plaintiff's right to maintenance and cure is not supported by the evidence. The court does not find plaintiff's arguments to be persuasive, and declines to alter its conclusion that King is entitled to judgment as a matter of law on plaintiff’s claim for maintenance and cure.

Entered this 14th day of November, 2001.

Wendell A. Miles, Senior Judge