United States: Summary Judgment On Maintenance And Cure Denied After Plaintiff Found At MMI And Question Of Entitle

Case:   Moe v. Aqueos Corp.
            U.S. District Court for the Western District of Louisiana
            2015 U.S. Dist. LEXIS 158925 (W.D. La. Nov. 24, 2015)

Michael D. Moe, was employed by the defendant, Aqueos Corporation, as a diver on May 24, 2013, when he was allegedly injured during the course and scope of his work. He alleged that Aqueos was negligent and that its vessel was unseaworthy. Moe claimed he went down in a diving bell into murky water with little to no visibility. When he exited the bell on instruction from the dive supervisor, his helmet allegedly struck a steel stabilizing wing that was affixed to the bottom of the dive vessel, which caused immediate pain and left him stunned. He was retrieved and taken to shore for emergency medical treatment.

Mr. Moe treated with Dr. Patrick Juneau, III, who performed an anterior cervical discectomy with instrumented fusion at C5-6 and C6-7 on November 18, 2013. On August 7, 2014, Dr. Juneau found Mr. Moe to have reached maximum medical improvement ("MMI"). Aqueos paid maintenance and cure from the date of the accident through September 30, 2014. Mr. Moe was terminated by Aqueos on October 1, 2014 (because Dr. Juneau limited him to light duty work). He then went to work at a retail establishment as a stocker for the Christmas season and thereafter took a position as an electrician's helper.

Mr. Moe's pre-operative symptoms completely resolved following surgery, and he did not see Dr. Juneau between August 14, 2014 and May 8, 2015. He returned to Dr. Juneau in May 2015, however, complaining of neck pain and pain radiating down his left arm. Dr. Juneau has recommended further surgery but Aqueos did not authorize the surgery and has refused to resume maintenance and cure payments.

In his first supplemental and amending complaint for damages, Moe alleged that, after Dr. Juneau found that he had reached MMI, he developed new symptoms that Dr. Juneau related to the original injury. Moe sought renewed maintenance and cure payments, as well as punitive damages for failure to resume paying maintenance and cure. Aqueos argued that because Dr. Juneau declared Moe to have reached MMI, it had no obligation to resume paying maintenance or cure. Aqueos sought to have Moe's claim for the resumption of such benefits and his claim for punitive damages dismissed on summary judgment.

To resolve the issue, the Magistrate Judge reviewed the treating physician's deposition testimony and affidavit, both of which indicated the pain experienced by Plaintiff after he had been declared at MMI was likely caused by a slight change in the angle of the caudal screw placed in the prior cervical surgery. Dr. Juneau opined some force must have caused the screw to move, but could not pinpoint such force, indicating it could have been a result of Plaintiff's work as an electrician's helper or could have resulted from the activities of daily living. Dr. Juneau further found that Plaintiff's pain after MMI related back to the original accident because the screw would not be there but for the diving accident, but he also said it is related to something that occurred between August 2014 and May 2015 although he saw no evidence of new trauma.

Dr. Juneau also executed an Affidavit, which was used by Plaintiff in opposition to Aqueos's Motion, wherein Dr. Juneau attested as follows:

The imaging studies and clinical examinations which I conducted in 2015 demonstrated to me that the screw has began to move again and therefore the surgical solution which I thought was adequate for Mr. Moe, the placement of the plate and screws, has now become unstable. Accordingly, my basis for concluding on August 7, 2014 that Mr. Moe was at maximum medical improvement no longer exists from a medical standpoint, and, in my opinion, it is necessary to perform the surgery which I recommended. . . . . I believe that the performance of this surgery will improve Mr. Moe's underlying condition and his function, and will eventually result in him reaching maximum medical improvement again, provided we can stabilize his cervical spine.

Based on this testimony, and Dr. Juneau's deposition, the Court, noting any doubts or ambiguities concerning Aqueos's maintenance and cure obligation must be resolved in favor of the seaman, denied Aqueos's summary judgment motion. Moreover, although the Court recognized the evidence in the record did not demonstrate that Aqueos unreasonably, arbitrarily, capriciously, or callously refused to pay maintenance and cure after Dr. Juneau declared that the plaintiff reached MMI and that there was no evidence that its decision not to resume paying maintenance and cure was based on bad faith, the Court likewise refused to dismiss the claim for punitive damages, pretermitting further discussion and preserving the issue for trial.

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