Without question the most frequently asked question posed to Delise and Hall centers on a company’s responsibility to pay the maritime equivalent to workmen’s compensation, also known as maintenance and cure.  The question is always asked by the injured diver or his family at the most critical time in an injured diver’s recovery from an on the job injury.  The diver has sustained an injury and his company or its insurance representative are engaged in discussions centered on getting the diver through his medical care and treatment while at the same time attending to his day to day living expenses.

 While the maritime law is very clear on this subject there exists many myths, misinformation and untruths. Without a fundamental understanding of a diver’s legal rights the diver may find himself in a position which compromises his recovery and future.

A diver’s right to "maintenance and cure" is his most sacred legal right under Admiralty Law. It is a long recognized legal right in the maritime for it obligates the vessel owner or employer to pay the injured diver his living and medical expenses as his attempts to ”weather the storm” of an on-the-job injury.  Without this right the diver would be at the mercy of his employer, relying on his employer’s charity to get him through most troubling times.

Maintenance is defined as “financial resources by which the injured diver can weather the financial storm surrounding an occupational injury offshore.”  It also includes the expenses necessary to repatriate the diver to his or her home, and to provide a monthly fund sufficient to defray the cost of food, lodging and utility expenses during his period of convalescence. In short, the employer must pay for the diver’s living expenses until the diver reaches a point in his medical recovery where treatment in no longer beneficial to his recovery.
 
In addition to the right to recover living expenses during his treatment the diver is entitled to the payment of “cure”. The right to cure entitles the diver prompt and professional medical care and treatment.  If the medical health care provider retained by the company is not acceptable to the worker, the diver has the right to select a doctor of his choosing. Not only does the employer have to pay for the medical treatment it must  further provide the diver’s transportation to and from the diver’s home to the doctor or treatment facility while recuperating.  This is gauged on a dollar per mile basis.

Duration of Maintenance and Cure Benefits
The right to maintenance and cure exists as long as the diver medically requires medical care and treatment, and as long as he has not reached a point which is known as maximum medical improvement.
Maximum medical improvement is defined as the end of the convalescence of the injured diver.  At that point in time wherein the diver expects no further improvement medically, the diver has reached maximum cure and no other benefits are due.  Until the injured diver reaches that point, he is entitled to living expenses and medical benefits.

Consequences of the Company’s Failure to Pay Maintenance and Cure
If the employer fails to provide maintenance and cure, and such failure or withholding is done arbitrarily, capriciously or in a callous disregard of the claim, the injured diver is entitled to the payment of attorney’s fees incurred for the prosecution of legal proceedings to have a court of law order the company to make such payments.  Additionally, the employer is responsible for any damages associated with such action.  If, for example, the employer fails to pay medical payment and as a direct result of such failure the diver’s condition worsens or reaches the point where treatment is no longer possible, the employer must pay damages in excess of the maintenance payments.
 

How much should a diver receive in benefits for Maintenance?
The question often asked is “How much is the injured diver entitled to for maintenance?” Under the law the injured diver’s employer must pay for the diver’s reasonable living expenses during the diver’s period of convalescence. “Living expenses” are defined as the direct expenses for housing (rent or home mortgage), food and utilities.

Customarily, following a diving accident the injured diver is contacted by his employer’s safety officer, human resources representative, insurance adjuster or claims representative.  The diver is told that the rate of maintenance paid by his employer or insurance company is a “set amount”, usually $30 to $35 per day.  The diver is told that this is all he is entitled to and not a penny more. Such representations are contrary to maritime law.  What is of paramount importance for the maritime is that there is not one set amount which the employer is obliged to pay.  The amount due an employee is not based upon some arbitrary dollar figure chosen by the company, its insurer or claims representative. 

The worker is, however, only entitled to ‘hard costs” for living expenses.  For example, the diver is not entitled reimbursement of expenses for room or board if the diver is residing at the home of their parent or relative, rent free.  If the worker pays rent to a relative for living expenses reimbursement is allowed.
On some occasions a company, in an attempt to keep the injured diver happy may offer to pay more than “its normal rate of $30 per day” and supplement the payment with monthly “advances”.  This “sign of good faith” may in fact be given to help the diver or it may be done to keep the diver from contacting an attorney for consultation.  In those instances where the company is suggesting or offering the payment of “advances” it is very important for the company to tell the diver whether there are any conditions tied to the payment of the advances, such as whether the diver is expected to reimburse the advances in the event of a settlement entered at a later date.

It can not be emphasized enough:  the injured diver is entitled to his living expenses while he recuperates.  If the employer is only offering an arbitrary preset figure of $30 per day and the diver’s living expenses are greater than $30 per day any money given is excess is not an advance, a gift or a sign of “good faith”’;  and, it should never be expected to be given back to the company at a later date.
 
Medical Expenses, Choice of Physician and Location of Treatment
No greater legal right exists for the diver than the right to of reasonable medical treatment when an injury occurs in the service of a vessel.  The right to be afforded medical treatment is a sacred right and the Courts look very unkindly toward a maritime employer who fails to provide said medical treatment or who fails to immediately evacuate an injured diver for medical treatment from a vessel to shore where said treatment is required.

The diver has significant input in the choice of his/her medical provider. The worker also has the right to a second opinion.  Additionally, the diver has the right to be treated at a facility close to his/her residence.  For example, a worker residing in Houma, Hattiesburg, Lafayette, or Baton Rouge is not required to accept medical treatment in New Orleans.  Additionally, out-of-state employees are not required to commute to their employer’s state if treatment is available in their home town.

Lastly, if the worker must travel significant distance to a medical provider or medical facility, or must stay at a hotel while receives treatment, the worker is entitled to be reimbursed all reasonable travel and lodging expenses.

What should be remembered is that these rights are the most important rights afforded the diver and the Courts will strongly enforce those rights if prosecuted.
 
Claims for Unearned Wages:
Any diver who for whatever reason falls ill or becomes injured while in the service of the vessel is also entitled to any unearned wages for which he or she would have been entitled through the end of the vessel’s voyage.  It is the general rule under maritime law that unearned wages are due to the end of the mutually agreed end of employment or until the diver becomes fit for duty.

Defenses to claim for Maintenance and Cure
If a worker becomes injured in the service of the vessel the vessel owner owes maintenance and cure unless the worker was injured due to his willful misconduct.  

Willful misconduct includes willful disobeying a lawful order, inebriation (drunkeness), drug abuse and aggressive behavior or fighting.  Maintenance and cure has also been denied for contraction of venereal disease and AIDS/HIV infection. An employer may also deny maintenance and cure to seamen who lied on a annual pre-employment physical or an application for employment about a health condition or previous injury or accident.

Dive Safe,

Bobby