What to Do If Your Employer Refuses Maintenance and Cure

Maintenance and Cure: A Quick Refresher

Maintenance and cure is the maritime employer’s no-fault duty to provide basic living support and medical care to an injured or ill seaman while in the service of a vessel. Maintenance is a per-diem allowance for shoreside living expenses. Cure is reasonable and necessary medical treatment. The duty runs until maximum medical improvement — not until full recovery.

Why Denials Happen

Carriers deny or delay maintenance and cure for a variety of reasons:

• status disputes (the carrier argues the worker is not a seaman or not in service of the vessel);
• the McCorpen defense (alleged concealment of pre-existing condition during pre-employment screening);
• alleged willful misconduct or intoxication;
• an MMI determination, often made prematurely or on the basis of an insurer-selected examination;
• claimed coverage gaps; or
• simple cost-saving leverage.

First Steps: What to Do Right Now

1. Get the denial in writing. Ask for a written explanation of why maintenance or cure is being denied or short-paid.
2. Do not stop treating. Continue with your treating physicians. Pay close attention to bills and explanations of benefits.
3. Save everything. Keep copies of every payment stub, every form, every text message, every email.
4. Do not give a recorded statement to the insurance company without your lawyer present.
5. Be careful with social media. Insurers monitor what claimants post.
6. Call a maritime injury lawyer. The earlier the better.

Remedies for Wrongful Denial

The unpaid amounts and additional compensatory damages

If the employer fails to pay maintenance and cure when it is owed, the seaman may recover the unpaid amounts and any additional compensatory damages caused by the failure — for example, the worsening of a medical condition because needed treatment was withheld, or out-of-pocket expenses incurred because maintenance was denied.

Attorney’s fees

Attorney’s fees are generally not recoverable on a Jones Act negligence claim. They may, however, be recoverable in connection with the wrongful denial of maintenance and cure where the refusal was unreasonable or arbitrary.

Punitive damages

Where the employer’s denial of maintenance and cure is willful, arbitrary, or in bad faith, punitive damages may be available. Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), confirmed punitive damages are available for willful failure to pay maintenance and cure. This is the recognized punitive-damages doctrine in maritime injury work, and it can transform a routine case into one with substantial additional exposure.