Caulfield v. Ac & D Marine, Inc.

633 F.2d 1129 (5th Cir. 1981)

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Nature of the Case

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Facts

P was employed by D as a pilot and relief captain aboard the M/V MAERINE D. On December 21, 1978, P suffered injuries when he fell over an anchor. P received emergency medical care at a nearby hospital. The following day P was treated by Dr. Anthony La Nasa. D does not customarily refer injured employees to public health facilities. It permits an injured employee to seek care from any private physician. If the employee expresses no preference for a particular doctor, the company selects a physician to treat the injured employee. Dr. La Nasa regularly treats employees of D who do not have personal physicians. On January 4, 1979, Dr. La Nasa released P for light duty with instructions to return if he experienced further pain or disability. P continued to experience pain but did not return to Dr. La Nasa. In late January 1979, P instituted this suit against Ds asserting claims under the Jones Act, 46 U.S.C. § 688, general maritime law, and seeking to recover maintenance and cure. Thereafter, P's attorney contacted Traveler's (D) to discuss maintenance and cure payments. Traveler's (D) informed P's attorney by letter that the company did 'not expect … P to be treated at the United States Public Health Service Hospital' and that Traveler's (D) 'would be glad to pay for any medical care which is necessary' as a result of the accident. In April 1979, P was examined by Dr. Henry La Rocca, an orthopedic surgeon. Dr. La Rocca recommended that P be hospitalized for further tests to determine the cause of his continued pain. Traveler's (D) informed P that it objected to his continuing under the care of Dr. La Rocca and tendered the services of Dr. Harold Stokes, another orthopedic surgeon. Dr. Stokes examined P and found no objective clinical manifestations of damage to P's back. P followed the recommendation of Dr. La Rocca and entered the hospital where a venogram and a bladder pressure test indicated abnormalities in the vertebrae in P's lower back. Dr. La Rocca performed surgery on P on May 30, 1979. Finding a weakened disc between two vertebrae, Dr. La Rocca fused the vertebrae to brace the incompetent disc. The fusion results in immobility between the fused joints. The issues of maintenance and cure were severed from the other claims and referred to a magistrate. The parties disputed the questions of whether P forfeited his right to cure by seeking treatment from a private physician of his own choice and the per diem rate at which maintenance should be paid. The magistrate ruled for P. The district court entered judgment for P ordering Ds to reimburse P for his medical expenses and to pay maintenance at the rate of $ 15 per day from the date of the accident until such time as P was fit for duty or had reached the point of maximum care. Ds appealed.