The Supreme Court has held that the remedies of maintenance and cure are designed to be broad and inclusive.(2) There are few recognized affirmative defenses or bars that allow the employer to escape the duty of maintenance and cure. Furthermore, the Court held that the employer had the affirmative duty to promptly investigate any claim for maintenance, cure and unearned wages and, to resolve any doubts as to entitlement in favor of the seaman, and to promptly pay amounts due.(3)
When maintenance and cure is improperly paid, seaman must bring claims in court as lawsuits and may be advanced as either part of a Jones Act injury claim, or as an individual cause of action. It is imperative that seaman are well informed and recognize their rights to maintenance and cure to prevent companies from trying to starve them out. Even in the event of circumstances that do not give rise to Jones Act liability, the maintenance and cure claim may still be pursued to secure these benefits for the seaman.
Maintenance and Cure are a separate cause of action in addition to any claim for negligence or unseaworthiness. In other words, if your employer refuses to pay maintenance or cure you can sue them just for maintenance or just for cure. Federal judges take a very dim view of employers who refuse or delay maintenance payments or who refuse to pay for medical expenses. Usually, a letter from a reputable law firm that handles Jones Act law results in employers starting up maintenance and agreeing to pay medical expenses.
Maintenance is a maritime word that means the weekly checks that an employer must pay Jones Act workers when their regular pay is stopped due to an injury or disease. The law provides that it is the legal duty of every Jones Act employer to provide a daily "subsistence" rate to workers to cover the reasonable expenses of room and board while ashore, until such time that the seaman is found fit for duty or placed at maximum medical improvement, or MMI, by his physician. Every seaman who is injured or becomes ill while in the service to a vessel is entitled to receive maintenance benefits regardless of fault on the part of his employer or any other party.
Maintenance benefits were once deemed appropriate at a level of $15-$30 per day. Many companies insist on continuing to pay this amount even today. The courts however have moved toward a trend of ruling that maintenance benefits must be sufficient to cover the actual cost of the basic necessities for survival, including but not limited to rent, utilities, transportation cost, and food. In some instances the living expenses are reduced for other family members and the employer is only ordered to pay the seaman's portion of these expenses regardless of the availability of other income.
The actual text of the Jones Act Statute does not make it clear as to how much "subsistence". However there are many court decisions that shed light on how much a worker should receive when he is unable to work. Weekly benefits under the Longshore Harborworker's Act and Workers or Workman's Compensation laws are much higher than under the Jones Act. However, the settlements under the Jones Act are significantly higher than under any other on the job injury law.
The question then is "How can you survive on the small maintenance checks while awaiting a potential large settlement?" The answer to most Jones Act workers is to turn to a Jones Act/Maritime law firm for financial assistance. Most states allow lawyers to assist their clients.
Some employers will pay more than required by the maintenance rules but there are strings attached. The amount of maintenance is relatively small compared to the amount that the employer may have to pay for a settlement. Therefore, employers may offer more weekly pay in exchange for the worker giving up his settlement or taking a drastic reduction in the amount of his settlement. I have personally talked Jones Act workers who took as little as $25,000 when any decent Jones Act law firm could have gotten them over one million dollars. We couldn't do anything for them because they had signed all the releases, cashed the check and spent the money. You should NEVER negotiate your own settlement because you couldn't possibly evaluate the amount of your settlement without a qualified lawyer.
In addition to the maintenance benefits, each seaman is entitled to receive cure benefits, which provide for payment of reasonable medical expenses during this time of recovery. The key to cure benefits is that the medical treatment received must be "curative" in nature for the expenses to be covered. Remember that you are entitled to top medical care, you don't have to go to their doctor and you get to make the critical decisions, not your company or the company doctor.
Once you reach a point where all continuing treatment is directed at making you more comfortable and your condition is no longer changing or improving, then you can be determined to be at Maximum Medical Improvement and maintenance and cure benefits cease.(1) Hopefully, your lawyer has already filed suit and has been negotiating your settlement.
No matter where you live, the lawyers and attorneys at the Ogletree Abbott Law Firm can help you get the help you need. If you would like, a lawyer or an attorney can contact you to answer your questions. There is no obligation and the initial phone call is always free of charge. Call toll free 1-800-Jones Act (1-800-566-3722), or send us an email. Call today and let us help you obtain your maintenance and cure benefits.
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