Our Houston offshore injury lawyers help many injured Jones Act workers who are entitled to maintenance and cure instead of workers’ compensation.
When new clients contact us, they are often rightfully upset that they have been injured and cannot work, and they want to know why they’re only getting $30-50/day from the employer responsible for their injuries.
They ask things like:
- “How much maintenance and cure do I get?”
- “Is my employer paying me enough maintenance and cure?”
- “How is maintenance and cure calculated?”
- “Why is my maintenance and cure less than workers’ comp?”
These are all good questions.
Amount Of Maintenance & Cure: The Short Answer
In the Fifth Circuit as of 2015, maintenance and cure is typically $30-50/day.
In certain circumstances, a seaman may be able to contest that amount as discussed below.
Cure is the amount of reasonable medical care necessarily incurred.
$30-50/day isn’t much. But the good news is that, unlike working people covered by workers compensation, Jones Act seamen have the right to sue their employers for the full damage caused by their injuries.
Maintenance & Cure
Under the Jones Act and general maritime law, a seaman injured while working in service of his ship, regardless of any negligence on his own part, is entitled to recover from his employer or the ship owner maintenance and cure benefits from the date of his injury up until the time of maximum medical cure.
Maintenance and cure includes recovery by a seaman, whose injury or illness occurred, manifested or was aggravated while he was in the ship’s service, for the seaman’s food and lodging of the kind and quality he would have received were he aboard his ship while he is unable to perform a seaman’s work and for medical treatment.
Seamen are not entitled to maintenance while they are hospitalized or in jail.
Who Determines Maintenance Amount?
Most employers pay a set amount of maintenance. An injured offshore worker or maritime worker can file a court claim to seek an increase in his or her rate of maintenance.
What Is Included In The Amount Of Maintenance?
Maintenance has two components: the reasonable cost of food and lodging for a seaman living alone, and the actual expenses for food and lodging that the seaman has incurred.
An injured offshore worker who has not paid his own expenses cannot recover maintenance and cure. But when the seaman has made “an expressed intention” to pay for lodging and food, even if the obligation is not legally enforceable, the seaman may recover maintenance.
“Maintenance” is a per diem living allowance paid when a seaman is outside the hospital and has not yet reached maximum possible cure. The rate at which maintenance is paid tends to become standardized to reflect the costs of food and lodging in a particular area.
The seaman’s burden to establish the value of maintenance is “feather light,” and his own testimony regarding the reasonable cost of room and board in his community is sufficient to sustain an award.
Lodging expenses such as a mortgage payment are not necessarily reduced because the injured offshore worker lives with his family.
As of 2015, Courts in the Eastern District of Louisiana have approved maintenance rates ranging from $30 to $40 per day.
Can My Employer Refuse To Pay Maintenance Because I Have Disability Insurance?
Typically not, unless the benefits plan specifies that payments are made in lieu of maintenance.
How To Calculate Maintenance Under The Jones Act
In the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, there is a three-part test for determining the amount of a maintenance award:
- Estimate the plaintiff’s actual costs of food and lodging, and the reasonable cost of food and lodging for a single seaman in the plaintiff’s locality.
- Compare those costs to each other. If actual expenses exceed reasonable expenses, award reasonable expenses.
- If reasonable expenses exceed actual expenses, inquire whether actual expenses are inadequate to provide seaman with reasonable food and lodging. If he seaman’s actual expenses are not sufficient to afford him food and lodging that are reasonably adequate, the court should award maintenance sufficient to provide reasonable food and lodging, even if the award exceeds the seaman’s actual costs.
Amount Of Cure
The word ‘cure’is used in its original meaning of care, and means proper care of the injured seaman, and not a positive cure, which may be impossible.” It “involves the payment of therapeutic, medical, and hospital expenses not otherwise furnished to the seaman.”
Can I See My Own Doctor Under The Jones Act?
The Fifth Circuit has held that if a seaman merely seeks his own private physician rather than another chosen by the employer, he forfeits only that amount of compensation, if any, that would have been saved if he had received the necessary care from the employer’s doctor.
Further, the employer has the burden to establish an exceptional circumstance – such as the doctor chosen by the employee provided unnecessary treatment or had unreasonably high fees – to pay less than the actual medical costs charged by the injured offshore worker’s private doctor.
Deadline To Claim Maintenance & Cure
A claim for maintenance and cure is timely if it is filed within three years of when the cause of action accrued, which is either at the time of discovery if the injury is purely latent or at the time of the traumatic event.
Our Texas Offshore Injury Lawyers Help Jones Act Seamen
The Texas offshore injury lawyers at Morrow & Sheppard are privileged to represent injured offshore workers and maritime seamen throughout the United States.
Mims v. Deepwater Corrosion Serv., Inc., 2015 WL 1185817 (S.D. Tex.—Houston Division Mar. 16, 2015) (standard for maintenance and cure).
Jefferson v. Baywater Drilling, LLC, 2015 WL 365526, 2015 A.M.C. 571 (E.D. La. Jan. 27, 2015) (featherweight burden for proving maintenance amount, 3-part Fifth Circuit test, and taking judicial notice that $40/day is a reasonable maintenance award, and that “no reasonable seaman could live on $23.33/day).
Hall v. Noble Drilling, 242 F.3d 582 (5th Cir. 2001) (affirming maintenance award of $31.50 to injured offshore worker who was injured while aboard jack-up rig, held that maintenance is not reduced because others – i.e. family members—live in injured worker’s home).
Dolling v. Amanda Hess Corp., 83 F.Supp.2d 843, 845 (S.D.Tex.2000) (3-year deadline to seek maintenance and cure).
Morel v. Sabine Towing & Transp. Co., 669 F.2d 345, 347 (5th Cir. 1982) (“We agree with our colleagues of the Third Circuit that ‘accumulated leave time is a method of deferred wage payment’ and constitutes earned wages, separate and distinct from maintenance”).
Caulfield v. AC&D Marine, Inc., 633 F.2d 1129, 1982 AMC 1033 (5th Cir. 1981) (right to see private doctor, not company doctor).
Pelotto v. L&N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979) (nature and amount of cure).
Haughton v. Blackships, Inc., 462 F.2d 788, 791, 1972 AMC 1923 (5th Cir. 1972) (no credit for private disability plan unless specified that plan is in lieu of maintenance)
The BOUKER No. 2, 241 F. 831, 835 (2d Cir. 1917) (nature and amount of cure).