Conger v. K & D Fisheries LLC et al

Filing 22

ORDER granting in part and denying in part Plaintiff's 10 Motion to Reinstate Maintenance and Cure, signed by Judge Ricardo S Martinez. (SWT)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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HANNA V. CONGER,

Case No. C17-1270 RSM

Plaintiff,
v.

ORDER GRANTING IN PART
PLAINTIFF’S MOTION TO REINSTATE
MAINTENANCE AND CURE

K&D FISHERIES LLC, et al.,

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Defendants.

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I.

INTRODUCTION

This matter comes before the Court on Plaintiff’s Motion to Reinstate Maintenance and

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Cure. Dkt. #10. Plaintiff argues that she is entitled to maintenance and cure until a medical

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professional has determined that she has reached maximum cure, which has not yet occurred.

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Id. Defendants oppose the motion, arguing that the record evidences Plaintiff has reached

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maximum cure, and therefore they are no longer required to pay maintenance and cure. Dkt.

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#15. For the reasons discussed herein, the Court now GRANTS IN PART Plaintiff’s motion.

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II.

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BACKGROUND

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Ms. Conger was injured aboard the F/V KESIA DAWN in September of 2014, when a

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full tote of fish dropped on her left foot. Dkt. #1 at ¶ 7. Plaintiff apparently did not seek any

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medical attention while in service of the vessel. Dkt. #15-1 at ¶ 10, Ex. E. In an email from
Plaintiff’s counsel to Defense counsel, the following was relayed regarding Ms. Conger’s
treatment:
ORDER– 1

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. . . . She left the boat but did not immediately seek treatment. She was
given no accident report to sign, neither maintenance nor unearned wages.
Conger finally sought treatment, with her personal health insurance, at a
doc-in-the-box in Bellevue on 11/12/14. She was referred to Orthopedics
but apparently chose treatment from Father Time instead of following up
with Ortho.
The pain seemed to decrease at first but later flared up due to “significant
scarring.” She went for an evaluation at Va. Mason on 4/14/17 and was
referred to physical therapy. . . .
Dkt. #15-1, Ex. B.
In May of 2017, Defendants were requested to pay $45/day maintenance and cure. Id.
Defendants agreed to pay the requested rate, and sent Plaintiff a check for payments from the
date she saw a doctor on April 14, 2017, to June 9, 2017, and agreed to make continued
payments during Plaintiff’s recovery. Dkt. #15-1, Ex. C.
Plaintiff last saw Dr. Shaw at Virginia Mason Medical Center on July 26, 2017, for a
“Sports medicine podiatry follow-up.” Dkt. #10, Ex. 1. Dr. Shaw noted that:
[Hanna’s] done 6 weeks of formal PT and met all goals, and admits she’s
been a little sporadic in her home PT since. Nonetheless pain is slowly
improving, now only 2/10 at worst. She is able to run 4 days weekly and
hike with occasional intermittent discomfort.
...
Assessment:
Left foot s/p contusion, slowly improving.
Plan:
-Exam, diagnosis and continued treatment options discussed at length
with patient. I strongly recommended continuing diligent home PT with
foot stretching, intrinsic strengthening and massage. This will likely
maximize her improvement. We did discuss MRI but she is concerned
about cost and I also don’t have any clear pathology to assess. She’ll
continue home exercises.
-Patient understands treatment plan. All questions answered to patient’s
satisfaction.
-Follow-up as needed.
Dkt. #10, Ex. 1.
ORDER– 2

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After reviewing the report from Dr. Shaw, Defendants informed Plaintiff that they
would stop paying maintenance and cure as of July 26, 2017, based on the fact that Plaintiff
was running four days a week and hiking with occasional discomfort, that Dr. Shaw was not
recommending further PT or an MRI, and that Plaintiff had no follow-up appointment
scheduled. Dkt. #10, Ex. 2. The instant action followed.
III.

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DISCUSSION

Under principles of general maritime law, seamen are entitled to maintenance and cure
from their employer for injuries incurred in the service of the ship[.]” Aguilera v. Alaska Juris
F/V, O.N. 569276, 535 F.3d 1007, 1009 (9th Cir. 2008) (alteration in original) (citation and
internal quotation marks omitted). This form of compensation does not depend in any way on
the fault or negligence of the shipowner, but rather is designed as a contractual agreement
between employer and employee to provide a seaman with support and medical expenses as a
result of his injury or illness aboard the vessel. See Aguilar v. Standard Oil Co. of N.J., 318
U.S. 724, 730-31, 63 S. Ct. 930, 87 L. Ed. 1107 (1943). “Maintenance . . . is designed to
provide a seaman with food and lodging when he becomes sick or injured in the ship’s service;
and it extends during the period when he is incapacitated to do a seaman’s work and continues
until he reaches maximum medical recovery.” Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.
Ct. 997, 8 L. Ed.2d 88 (1962). Cure is generally understood to require the provision of medical
treatment and similarly extends until maximum medical recovery has been reached as a result
of “continued and necessary medical treatment.” Luksich v. Misetich, 140 F.2d 812, 814 (9th
Cir. 1944); see Crooks v. United States, 459 F.2d 631, 632-33 (9th Cir. 1972). In the motion
before it, the Court must determine whether Plaintiff has reached maximum cure.

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ORDER– 3

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As an initial matter, the parties dispute the proper standard of review for this motion.
Plaintiff argues that to discontinue maintenance and cure, the shipowner must have
unequivocal evidence that the Plaintiff has reached maximum cure, which is not present in this
case. Dkt. #10 at 2. Defendant argues that the evidence demonstrates Plaintiff has reach
maximum cure, but that if there is any question as to that fact, the Court should treat the motion
as one for summary judgment. Dkt. #15 at 2-8.

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Plaintiff asserts that the summary judgment standard should not be applied in situations
like the instant one, citing Dean v. Fishing Co. of Alaska, Inc., 177 Wn.2d 399, 300 P.3d 815,
821-22 (2013). In Dean, the Washington Supreme Court held that the summary judgment
standard applies only to determine a seaman’s initial entitlement to maintenance and cure. Dkt.
#17 at 2. The court reasoned that this initial entitlement “presents legal questions that can
properly be resolved on summary judgment,” but that “it does not necessarily follow that the
summary judgment standard must be applied to a seaman’s motion to reinstate maintenance
and cure.” Dean, 300 P.3d at 822-23. In reaching this conclusion, the Dean court relied on
Gouma v. Trident Seafoods, Inc., 2008 U.S. Dist. LEXIS 108278, 2008 WL 2020442 at *2
(W.D. Wash. Jan. 11, 2008), a case from this District where Judge Pechman made the same
distinction.
The Court finds that Defendants incorrectly characterize Plaintiff's motion as one for

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summary judgment. An injured seaman seeking reinstatement of maintenance and cure
payments which were terminated by his employer cannot be considered in the same procedural
posture as a party seeking summary judgment.1 As other Circuit and District courts have

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1

In Buenbrazo v. Ocean Alaska, LLC, 2007 U.S. Dist. LEXIS 81594, 2007 WL 3165523
(W.D. Wash. Oct. 24 2007), this Court recognized the “obvious tension” between the summary
judgment standard, where the facts are construed in the light most favorable to the non-moving
ORDER– 4

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stated, “[t]he decision to terminate must be unequivocal.” Johnson v. Marlin Drilling Co., 893
F.2d 77, 79 (5th Cir. 1990)]. Maximum cure is reached when it is medically determined that
further improvement in a plaintiff’s health is not reasonably possible. Vella v. Ford Motor
Co., 421 U.S. 1, 5, 95 S. Ct. 1381, 1384, 43 L. Ed. 2d 682 (1975). The employer should
consider all available medical evaluations whether the claimant is fit for duty in deciding to
terminate maintenance and cure payments. Tullos v. Resource Drilling, Inc., 750 F.2d 380
(5th Cir. 1985). A vessel owner must only pay for curative, as opposed to palliative, medical
treatment. Stanovich v. Jurlin, 227 F.2d 245, 246 (9th Cir. 1955).
In this case, Plaintiff has demonstrated that there is ambiguity on the question of
whether she has achieved maximum cure. Although Dr. Shaw left open any follow up
appointments, he also recommended “continuing diligent home PT with foot stretching,
intrinsic strengthening and massage” which would “likely maximize her improvement.” Dkt.
#10, Ex. 1. Defendants have no medical evaluations to the contrary or that state no more
improvement is likely to be made, but do point to the fact that Plaintiff is running four days a
week, hiking with only occasional intermittent discomfort, and that shortly after her last exam
Plaintiff left for a multi-month backpacking trip across Mexico. Dkts. #15 at 5-6 and #15-1,
Ex. I. Thus, the Court finds equivocation in regard to whether Plaintiff has achieved maximum
cure. As a result, Defendants must pay Plaintiff for maintenance and cure from the date of
their suspension of payments until this matter is definitively resolved in this Court.
Plaintiff has also requested attorney’s fees in the amount of $1,350 for bringing this
motion. Dkt. #10 at 3. The Ninth Circuit applies an “arbitrary, recalcitrant or unreasonable”

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party, and the canon of admiralty law providing that all doubts be resolved in favor of the
seaman. 2007 U.S. Dist. LEXIS 81594, 2007 WL 3165523 at *1.
ORDER– 5

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legal standard to requests for attorney’s fees in maintenance and cure actions. Kopczynski v.
The Jacqueline, 742 F.2d 555, 559 (9th Cir. 1984); see also Vaughan v. Atkinson, 369 U.S.
527, 530-31, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962) (allowing attorney’s fees against shipowner
who willfully and persistently failed to investigate claim for maintenance and cure by a
seaman). Under the circumstances of this case, the Court cannot find that Defendants were
arbitrary, recalcitrant or unreasonable in discontinuing maintenance and cure payments.
Accordingly, Plaintiff’s request for attorney’s fees is DENIED.

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IV.

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Having reviewed Plaintiff’s motion, the opposition thereto and reply in support thereof,
along with the supporting Declarations and Exhibits and the remainder of the record, the Court
hereby finds and ORDERS:
1. Plaintiff’s Motion to Reinstate Maintenance and Cure (Dkt. #10) is GRANTED IN

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CONCLUSION

PART AND DENIED IN PART as discussed above.
2.

Defendants SHALL PAY to Plaintiff maintenance and cure from the date of
suspension of payments until this matter is definitively resolved in this Court.

3. Plaintiff’s request for attorney’s fees is DENIED.
DATED this 20th day of October 2017.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER– 6