The Definition of Maintenance and Cure
Maintenance is defined as the amount of money it costs to maintain yourself on land as your company does at sea. Cure in maritime law is defined as reasonable medical expenses that are related to your injury which occurred while you were in the service of the vessel.
Maritime law states that you are entitled to receive maintenance and cure benefits for any injury which you suffered “in the service of the vessel” regardless of how the injury occurred. This includes maritime injuries that may have occurred through your own fault or injuries which simply arose while you were working without any particular cause or accident. You are entitled to maintenance and cure until you have reached “maximum medical improvement.”
Frequently Asked Questions
Maintenance benefits are a daily payment made to you by your employer sufficient for you to pay your expenses on land for the items which were provided to you while you were offshore.
Generally speaking, maintenance includes:
You are entitled to receive medical treatment until you reach the point at which your condition can no longer improve. Unfortunately the definition of “cure” does not include treatment simply to relieve your pain. Under the definition of “cure,”, the treatment being provided by your physician must result in a betterment of your condition otherwise your maritime employer will not be required to pay for such treatment under the law of maintenance and cure. However, please note that other medical expenses including treatment for pain are recoverable under your Jones Act claim.
You are entitled to maintenance and cure even if you cannot identify a specific accident or event which caused #requestyour injury, as long as your injury began while you were “in the service of the vessel”.
How to Submit a Maintenance & Cure Request
You can also download and print the Maintenance Request worksheet to fill out on your own.
You can submit your own documentation, just be sure to include a breakdown of your monthly bills by category: electricity, rent/mortgage, insurance, cell phone, food, etc. Then, we recommend that you include a copy of last month’s actual bill for each item, if available. Some items such as food are simply estimated. Items such as electricity, rent/mortgages, and car insurance can be supported with an actual past bill.
Technically, there is no formal claim document or form that needs to be submitted to your employer in order to receive maintenance and cure. Rather, maintenance and cure is automatically triggered when a worker has an injury or illness in the service of the vessel. Your employer should automatically be sending you maintenance checks and paying for your medical expenses.
If that’s not the case, you can simply make a verbal or written request to your employer or its representative. We recommend you do such in writing since there will then be proof that the request was made on your company or its insurer.
Who is eligible for Maintenance and Cure?
Individuals who meet the definition of a ‘seaman’ and suffer an injury or illness while in the service of the vessel are entitled to maintenance and cure under general maritime law. A ‘seaman’ is an individual who is assigned approximately 30% or more of his time working aboard a vessel. The law defines vessels fairly broadly to include anything from a standard tugboat or offshore supply boats, all the way to a work barge stationed alongside a bridge. Oil rigs drilling for oil are also included as vessels. As long as the injured employee qualifies as a seaman under the law and suffers an injury or illness in the service of the vessel, he is entitled to maintenance as well as cure.
1st Assistant Engineer Master 2nd Assistant Engineer Mates 3rd Assistant Engineer Motorboat Operators Able Seamen Oiler (Marine Oilers) Barge Engineer Operators Boatswain Ordinary Seamen Captains Pilots of Water Vessels Chief Engineer Pumpman/Machinist Deckhands Pumpmen Designated Duty Engineer QMED Electrician/Refrigerating Roughneck Engineers Sailors Fireman/Watertender Ship Engineers First Class Pilot Tankerman Junior Engineer Tool Pusher Lifeboatman Wipers
*If you don’t see your position listed above, that does not necessarily mean you’re not eligible for Maintenance and Cure. It is best to consult a Jones Act attorney if you are unsure if you are covered.
No. Maintenance and cure are completely separate from any type of negligence claim that may be allowed against your company for causing your injury.
Yes. Even employees who suffer their injuries while technically off of the vessel, such as while traveling in a company car, or even working dockside off of the vessel, are still entitled to maintenance and cure as long as they were in the course of their employment. As long as it was during working hours, he will be covered.
Yes, even non-physical injuries are covered under maintenance and cure. An example of this would be an individual who suffers PTSD during a traumatic event while aboard a vessel, or even a seaman who has severe anxiety attacks while aboard the vessel and has to be removed from the vessel. In both situations these employees would be entitled to receive maintenance as well as their medical care relating to their mental and emotional injuries.
Yes. Even pre-existing conditions which are made worse by your service in the vessel are covered under maintenance and cure. In such situations there is not specific accident or event that causes the injury, but the employee is still entitled to maintenance and cure. The employee essentially begins to experience pain or discomfort, while he was on the vessel, even though much of the damage may have been caused while he was off the vessel. These cases can be tougher to prove, because there generally has to be some clear proof that the pre-existing condition was somehow made worse or came about while in the service of the vessel, as opposed to an individual who simply joins the vessel injured and then claims that the injury began to manifest while he was on the vessel. These types of maintenance and cure claims are typically fought hard by the companies. But if the injury actually did manifest while you were onboard the vessel, regardless of how much pre-existed prior to your work on the vessel, it should still be covered under maintenance and cure.
Maintenance applies even when an individual is not injured by a specific, traumatic event aboard a vessel. This includes situations such as a heart attack, kidney stones, an infected gallbladder or appendix or other non-traumatic illnesses. In these types of situations, the employee would be entitled to maintenance, as well as all medical costs.
The amount of maintenance that you receive should depend upon your monthly expenses. However, most companies pay a flat standard maintenance rate to all their injured employees. Generally, we see employers pay anywhere from $15/day to $40/day in maintenance. We believe this payment of a standard rate to all employees is wrong and contrary to the law. On behalf of our clients, we will often try to have their maintenance rates increased by sending proof of their actual expenses.
No. Maintenance payments are not taxable. However, other types of payment (such as “advances”) can be taxable as they can be considered wages. This is why you should always insist that you receive only maintenance checks, rather than a combination of advances and maintenance. In short, if you receive as much money as possible in the form of a maintenance check, you will not likely have to pay taxes on that money.
No. The amount of maintenance to which you’re entitled relates solely to the amount of bills that you have on land to pay for the same items that you received while you were on your vessel. Whether or not you take out a loan for additional money, or to make ends meet, the loan will have no effect on the amount that your employer should be paying you in maintenance.
Yes. We encourage our clients to immediately apply for any short-term or long-term disability which may be available to them through their employer. If you qualify for short-term or long-term disability, you should still continue to receive maintenance payments from your employer, but your short-term or long-term disability will simply be reduced by the amount of maintenance payments you are receiving each week.
While you technically can apply for Social Security Disability Income, we generally tell our clients that they should avoid doing so. The reason for that is because it can affect any injury settlement you receive. Essentially, you’d be forced to include a “Medicare Set Aside account” (which is usually funded from your settlement money). This would reduce the total settlement you’d receive.
When someone files for unemployment, they are essentially saying that they are able to work but do not have a job at the moment. This means that they are physically able to perform the work that they were doing before they became injured. So if you’re physically able to work, then you’re no longer entitled to maintenance and cure, which is meant to help you while you’re recovering from your injuries. You are only entitled to maintenance and cure until you’ve reached ‘maximum improvement’ or ‘maximum cure’ from an injury or illness. In other words, it could be inconsistent for a seaman to claim that they are still injured, and in need of medical care, yet at the same time be applying for unemployment, indicating that they are able to work.
Maintenance is meant to cover your living expenses. So, if you are living rent-free and have other expenses taken care of by someone else, then you would not be entitled to maintenance.
Maintenance is tax-free money that you do not have to pay back to your company. Advances, however, are similar to loans and are meant to be paid back when you receive any kind of injury settlement. Most companies recognize that an injured employee cannot live off of $15-$40/day and so will offer advances as a way to supplement that low maintenance rate. Instead of giving you your full maintenance, they give you a portion of it and throw in advances that they intend to recoup at a later point.
According to maritime law, all questions or ambiguities with regard to maintenance and cure must be settled in favor of the injured seaman. It is imperative that you receive the maintenance rate appropriate for your specific case so that you are able to pay your expenses while you are unable to work. Don’t settle for what the company thinks they can get away with paying you; insist on what you actually need.
You have the right to choose your own doctor…and the company has to pay for it.
The injured worker has the right to choose his or her own physician, and the company is obligated to pay for all medical expenses that result from the injury you incurred while working. Your maritime employer should pay for your medical expenses from your choice of treating physician.
Our attorneys have found that often, maritime employers will require an injured worker to go to a company doctor for initial treatment and a medical report. Then, if the company doctor states that the injured worker does not need further treatment, the maritime employer will use this as an excuse to refuse further medical treatment.
It is very important that you see your own physician immediately following your injury so that you can avoid this common trap.
You are entitled to future medical expenses which may be necessary due to your maritime injury.
Many injured workers will try to resolve their maritime injury case themselves and simply have their employer pay some amount of money for future medical expenses.
It is impossible to guess or estimate the cost of your future medical expenses unless you have been to qualified independent physicians who have performed significant medical testing to determine your condition as well as your prognosis for the future.
Our office has handled numerous cases in which independent physicians have identified future medical costs which would have never been identified by company doctors. Basic, but sophisticated, medical testing is necessary to properly handle your maritime injury claim and our lawyers are familiar with these tests.
There are a few situations in which you could possibly be denied maintenance and cure. However, with the right attorney, you can fight many of these denials.
Reasons you might be denied maintenance and cure (and how to fight it)
How to Fight it: Many times companies will misclassify you to avoid paying Maintenance and Cure. A Jones Act attorney can prove your status and force the company to pay.
How to Fight it: If you’re still in pain and have been seeing the company’s chosen doctor, you should get a second opinion. Make sure to get all of the medical tests you need to show that you’ve actually healed as much as you can.
How to Fight it: Companies will often use the McCorpen defense to deny seaman maintenance and cure. You would probably need an attorney experienced fighting the McCorpen defense in order to get around this defense.
Where does my right to maintenance and cure come from?
Maintenance is a right given to seamen that comes from general maritime law. It is not a statutory right. This means that the laws of maintenance have come about over time through court decisions of judges. There is no written law in any book that an injured seaman can look to in order to determine what his rights are under maintenance or cure. Instead, hundreds of cases decided by numerous judges over the years have essentially defined what your rights are to maintenance or cure as an injured seaman. The downside of this origin is that often the cases on the books are not entirely clear, or different judges have interpreted your rights slightly differently. When a law is written out in a statute (or is ‘statutory’ in nature) it is often easier to read the exact rules of the law. Maintenance and cure is ‘case’ law, meaning it is set out in the numerous cases which discuss it.
Is maintenance and cure the same thing as the Jones Act?
No, maintenance and cure is not the same thing as the Jones Act, nor does it come from the Jones Act. We are often asked to describe maintenance and cure versus the Jones Act. The Jones Act is a federal statute that specifically says that an injured maritime worker can collect all damages caused by his employer’s negligence. The Jones Act allows you as an injured seaman to collect pain and suffering, medical expenses, complete full lost wages and income, as well as fringe benefits. Maintenance, on the other hand, is derived from general maritime law and is defined as the amount of money that an injured seaman needs to keep himself in the same living accommodations as he had through his employment during the time that he is injured and receiving curative treatment. This means that your employer is supposed to pay for items such as electricity, housing, food, and other necessities that were provided to you while you worked for your employer. The amount of maintenance is supposed to reflect the amount of actual bills that you have month to month in order to pay for your living expenses, while you are recovering from your injury.
Are there are consequences to my employer for failing to pay maintenance and cure?
YES! Fortunately, the law has changed in recent years to clearly state that employers can be held liable for punitive damages, as well as attorney fees if they fail to properly pay maintenance and or cure. In 2009 the United States Supreme Court finally passed a ruling that made it clear that an employer faces punitive damages if it wrongfully denies or terminates maintenance or cure. This has resulted in many employers beginning to pay for much-needed surgeries which years ago may have been denied by the employer. Additionally, some employers are willing to negotiate a higher rate of maintenance for the employee now, out of fear that a punitive damage claim will lie against them later at trial if they are unreasonable in paying a fair rate of maintenance.
In reality, almost every injured seaman requires both his maintenance, as well as these advances, to actually pay his minimal bills each month. On behalf of our clients, we always demand that the company increase our clients’ maintenance. However, most companies refuse to do so. But we can then reserve this as an issue at trial to show that the company was indifferent to our clients’ needs each month. Companies claim that they do not legally owe the ‘advance’ to the injured seaman. They often directly tell you that they will stop paying you these advances if you hire an attorney. We have several reactions to this. First, we disagree strongly that the ‘advances’ are not owed to you. If you need a certain amount to pay your bills each month, it doesn’t matter what your company tries to call this money, the law of maintenance says they owe you that entire amount as maintenance. Next, we will demand that the company continue to pay our clients the full amount of advances and maintenance even after we are hired. Some companies agree for fear of being penalized later [link to punitive paragraph below]. Finally, in Louisiana we are allowed to provide our clients with living expense money each month if they need money to pay bills. As I often tell clients, we want to make sure you don’t make any decision about your claim out of desperation for a few dollars to pay each month’s bills when your claim is really about your entire future and your financial and physical health.
If your company does not pay maintenance and cure, you as an injured maritime worker have the right to take your claim to court and argue that your company was both unreasonable and arbitrary in their refusal to pay your maintenance and cure.
Yes. Since maintenance and cure falls under general maritime law, there is a three year period during which you can file a claim for maintenance. Even if your company delays paying you or fails to pay you for several months after your injury, the claim is still owed. You can demand payment for such money up to three years from the time it was first due. Some companies will wrongfully wait several weeks in order to determine if they can coax you back to work and avoid a lost time accident. We always recommend that the injured seaman demand immediate payment of maintenance and cure starting the first week that he is off of work following his injury.
While an attorney is not strictly necessary for a maintenance or cure claim, attorneys often play a very important role in making sure that you receive the highest possible rate of maintenance while you are injured and, more importantly, making sure that you receive proper immediate medical treatment from doctors that can be trusted rather than company chosen physicians. Because your right to maintenance directly relates to whether or not you need any further medical treatment , it is critical that you receive medical treatment from doctors who are looking out for your best interest and recommending and performing tests to determine the nature and extent of your injury. You will not receive maintenance if your medical treatment is undeveloped or unsubstantiated. One of the fastest ways we see companies wrongfully stop payment of maintenance is if they obtain a report form a company chosen physical who states that you do not need any further medical treatment. Once this opinion is obtained, no matter how wrong it may be, it allows your company to use it against you to terminate your maintenance and cure. A good maritime lawyer can often protect you from this if he is helping with your claim.
Many of our clients receive ‘advance’ checks, as well as ‘maintenance’ checks while they are injured. One of the questions they have asked us over the years is whether or not the company will demand that they immediately repay these advances when they hire us as their attorneys. The short answer is no. Companies never demand that the employee immediately pay back advances even after the employee has hired an attorney. The only situation in which the advances that you receive from your company will be taken out of any money that you are entitled to is if you actually try your case in court and receive a formal judgment for your case. And that situation, the company will argue that your judgment should be reduced by the ‘advances’ that they paid to you since, your company will argue, these advances were not required by law. Our clients have never had to pay any advances back out of the settlements we have done for hundreds of injured maritime workers over the last 25 years.
A declaratory judgment action is a document filed in court asking that something be ‘declared’ or determined by the court. In some situations, employers will file a declaratory action asking a court to rule that they no longer have to pay maintenance or cure payments to an injured seaman. However, in most situations employers never file such actions before they terminate benefits. The law does not require that they file such declaratory actions or that they seek court approval to terminate your benefits. The only requirement for an employer to terminate your maintenance and cure benefits is that a doctor or medical provider state that you have reached maximum cure. This means it can be any doctor, even one chosen by your company. Also, other doctors may disagree, and you may still be in pain and injured, but if you cannot be ‘cured’ or your condition made better, then you may be at maximum cure. We find that about one third of companies will simply send you a letter advising that they are terminating your maintenance because some doctor has put you at maximum cure. They often refer to that doctor and his opinion in their letter to you. In that situation your maintenance benefits stop suddenly. Many of our soon to be clients reach out to us at that point for answers and help with their claim. Alternatively, about one third of companies will send a letter advising that they have an opinion that you have reached maximum cure and that, in a few weeks or so, they will ‘have’ to stop paying you maintenance. These may seem like understanding employers, but what comes next is the real trick to their approach. During the few weeks after they tell you they will stop paying your maintenance and when you get your last maintenance check, they start to negotiate low ball offers with you to resolve your claim. You then know that your checks will stop soon and out of desperation you need to take any settlement they may offer you. Many other soon to be clients call us at this stage worried and scared. Finally, we find that about a final one third of employers will file a declaratory action in court before they terminate any maintenance or cure benefits to the employee. These are generally more forward thinking, cautious employers who want to err on the side of the employee and want an official ruling from a court that they cannot be penalized if they terminate maintenance and cure benefits
If the court rules that your company has been unreasonable, it is possible you will be awarded attorney fees you incurred while filing the suit to receive proper maintenance and cure.
If your company is also found to be arbitrary in their refusal to pay, you may collect additional damages for the worsening of your condition due to your company’s refusal to provide you with the maintenance and cure to which you are entitled.
Your claim to maintenance and cure benefits is a separate claim from your liability case against your employer or any responsible third parties for your maritime injury.
If you have been injured on the job and you are not receiving fair maintenance and cure from your employer, contact our office today for a free consultation. If you have any questions about maritime law, and your right to medical expenses, contact our lawyers at The Young Firm (serving New Orleans, Baton Rouge, and the Gulf Coast region).
We have helped many injured maritime workers obtain money for future medical expenses and we can discuss your rights with you. We may even be able to arrange for medical treatment and testing.
The Young Firm fights exclusively for maritime workers, and we are a 100% maritime law firm. You are in good hands with us.