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Robert Eric Lee v. Metson Marine Services

October 30, 2012

ROBERT ERIC LEE, PLAINTIFF,
v.
METSON MARINE SERVICES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Barry M. Kurren United States Magistrate Judge

FINDINGS AND RECOMMENDATION THAT DEFENDANT UNITED STATES OF AMERICA'S MOTION TO TERMINATE MAINTENANCE AND CURE BE DENIED

Before the Court is Defendant United States of America's Motion to Terminate Maintenance and Cure (Doc. 69). The Court heard this Motion on August 28, 2012. After careful consideration of the Motion, the supporting and opposing memoranda, and the arguments of counsel, the Court finds and recommends that Defendant's Motion be DENIED.

BACKGROUND

Plaintiff Robert E. Lee has a history of back injuries and back pain. Some of those injuries occurred while he was employed as a seaman. Prior to June 2010, Plaintiff underwent back surgery, but he continued to experience back pain.

Dr. Allen W. Jackson conducted an independent medical examination on Plaintiff and completed his report on June 29, 2010. (Defendant Ex. B.) He noted that Plaintiff was experiencing pain in his back and left lower extremity. (Id.) Dr. Jackson also noted that nearly a year had passed since Plaintiff underwent back surgery and opined that "Plaintiff is approaching [maximum medical improvement*fn1 ] at this point in time." (Id. at 8.)

Plaintiff later visited Dr. Wu Zhuge, an orthopedic surgeon, on April 13, 2011. (Defendant Ex. C.) Plaintiff complained of "chronic debilitating left leg pain." (Id. at 3.) Dr. Zhuge recommended various treatments, including an electromyography test ("EMG") if the other recommended treatments did not result in pain relief. (Id. at 3.) Plaintiff subsequently underwent an EMG, and Dr. Zhuge reviewed the results. (Defendant Ex. D.) After meeting with Plaintiff and reviewing the EMG results, Dr. Zhuge informed Plaintiff that "surgery to remove the scar around the nerve roots is doable, but the result is very unpredictable." (Id. at 2.) Indeed, surgery might "make his back condition worse." (Defendant Ex. E.) Instead of recommending surgery, Dr. Zhuge recommended that Plaintiff undergo a "spinal cord stimulator trial," which "help[s] those patients who have failed previous back surgery." (Defendant Exs. D, E.)

On November 23, 2011, Plaintiff visited Dr. Kelvin D. Franke, who also recommended a "spinal cord stimulator evaluation." (Defendant Ex. F.) Plaintiff visited Dr. Nazanin Jafarian a few weeks later. (Defendant Ex. G.) Dr. Jafarian recommended "a multi-modal approach" for Plaintiff's treatment, including weight management, medication adjustment, spinal cord stimulation, and physical therapy, which could "improve cervical and upper extremity muscular strength and range of motion." (Id. at 3.)

Dr. Jackson, who had examined Plaintiff in 2010, prepared another report on March 23, 2012 after reviewing more recent medical records. (Defendant Ex. H.) In June 2010, Dr. Jackson had opined that Plaintiff was "approaching MMI" at that time. (Defendant Ex. B.) However, in his March 2012 report, Dr. Jackson stated: "It is my opinion that [Plaintiff] is at maximal medical improvement." (Defendant Ex. H at 5.) He also opined that "spinal cord stimulation is not curative but is palliative if successful for controlling chronic radicular pain." (Id.)

Finally, on May 8, 2012, Plaintiff was examined by Dr. Richard S. Goka. (Plaintiff Ex. A.) Dr. Goka disagreed with Dr. Jackson's June 2010 and March 2012 opinions regarding MMI:

It is my opinion [Plaintiff] did not reach maximum medical improvement in June 2010 nor has he reached MMI yet. He had not reached a plateau in his treatment nor was it unlikely that any further treatment would not improve his function. All treatment options have not been exhausted. (Id. at 11.) Dr. Goka suggested the following treatments for Plaintiff, which he believed would "improve his ability to function": spinal cord stimulator, pharmacological trials, intrathecal medication, and a functional restoration pain program. (Id. at 8, 10 ("[I]n my opinion the above treatment options will improve his functionality and will reasonably control his pain without major side effects.")) Dr. Goka stated that the "treatments outlined above are necessary to maximize [Plaintiff's] function in activities of daily living and possible return to some gainful employment." (Id. at 12.)

DISCUSSION

In the present Motion, Defendant seeks to terminate maintenance and cure payments to Plaintiff.

"A seaman injured in the service of the ship is entitled to maintenance and cure until he reaches the point of maximum medical cure," also called maximum medical improvement or MMI. Light v. Jack's Diving Locker, CV. NO. 05-00706 BMK, 2007 WL 4321715, at *1 (D. Haw. Dec. 11, 2007) (citing Farrell

v. United States, 331 U.S. 511, 518 (1949)). Payments for maintenance and cure are "designed to ensure the recovery of [seamen] upon injury or sickness sustained in the service of the ship." Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979). "Maintenance and cure are due without regard to the negligence of the employer or the unseaworthiness of the ship." Id. "Maintenance is a per diem living allowance, paid so long as the seaman is outside the hospital and has not reached the point of 'maximum cure.'" Id. "Cure involves the ...


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