Seaman Forfeits Maintenance and Cure: Inexcusable Failure to Attend Physical Therapy
Boatner v. C&G Welding, Inc., 2020 WL 4432286, 2020 U.S. Dist. LEXIS 135997, (E.D. La. July 31, 2020, Feldman, J.)
The seaman sustained a shoulder injury and underwent arthroscopic surgery to repair the damage. The treating physician stated that he would require six months of physical therapy (“PT”) before he could return to his heavy-duty occupation. The physician also stated that it was absolutely critical for the patient to attend PT for an uninterrupted period of 6 to 8 weeks. Two months after the post-surgery visit, the doctor noted that the condition of the shoulder had not improved. In fact, it had deteriorated. He then ordered additional physical therapy. The seaman did not contest that he missed 75% of all his PT sessions.
Boatner claimed he lost his ride and was unable to get to the sessions because he had no other form of transportation. However, the judge noted that he never informed his employer that he had transportation problems and only first revealed this at his deposition. The trial judge found that participation in the PT was “absolutely critical” for his recovery. His repeated failure constituted an “unreasonable refusal to accept medical care.”[1] The seaman’s excuses for failing to attend were unreasonable. The court also rejected the argument that the sessions were not significant enough.
Accordingly, Judge Feldman granted the Motion for Summary Judgment holding that the seaman forfeited his right to maintenance and cure.
[1] Oswalt v. Williamson Towing Co., 488 F.2d 51, 53 (5th Cir. 1974).
