The opinion of the court was delivered by: GOURLEY
This is an action in admiralty for maintenance and cure.
The libellant, Robert E. Haywood, in Civil Action No. 7657,
also filed claim for damages based on the doctrine of negligence and unseaworthiness. The jury resolved the issues in favor of the defendant.
Maintenance and cure is claimed from the date of the injury, October 1, 1946, to the time of trial but has been limited by stipulation of the parties to April 30, 1952. The rate of maintenance was also stipulated at $ 4 per day.
There is no issue as to the employment of the libellant by the respondent on the Steamer 'Sailor,' a vessel operated in navigation on the Ohio River, and that libellant was injured in the service of the vessel. Libellant's injuries have been described by the various physicians who testified at the trial of the case in the civil action. By stipulation the record of the trial before the jury was incorporated as part of the record in the action for maintenance and cure.
The main injury received was to the left shoulder and surrounding area. Libellant has received treatment for the injuries sustained by various doctors and has been confined to the United States Marine Hospitals in Pittsburgh and Baltimore, and the South Side Hospital in Pittsburgh, and out-patient treatment at the United States Public Health Station in Pittsburgh. These treatments included manipulation under anesthesia, X-ray treatments, massage, heat therapy and novocain injections.
The work schedule of Haywood on the vessel, which was also the general practice and custom on the rivers within this district, required the seaman to work ten days after which he was relieved of any employment for five days, after which he would return to his work for ten consecutive days, then be off five days, etc.
It is not in dispute that between the date of the accident, October 1, 1946, and April 30, 1952, the date to which the issues herein are to be adjudicated, the seaman was away from his work 247 days which were normal work days, and for which he is entitled to be compensated for maintenance and cure at the rate of $ 4 per day.
The primary issue to be resolved relates to the right of the seaman to recover for the whole or any part of an additional period of 651 days, during which time libellant did not work for respondent but which fell within the periods of five days that he was off work after the ten day work cycle.
During this five day off period which comprises 651 days, even if the libellant had not been injured, he would have had no employment available from the respondent during said 651 days or any part thereof. The time was his own; he could either work for some other employer, if he so desired, or use the time at his leisure for any purpose he wished.
The seaman asserts a right to recover for maintenance and cure during the period of 651 days, which is the total of the five day off-work cycle, on the thesis that said period of time was devoted to self-administered treatment, care and attention to relieve the condition of the injured left shoulder.
During the work cycle period of ten days similar treatment was given by the seaman to his shoulder aboard ship. However, the seaman performed the duties of his work after his return subsequent to the injury.
It is elementary in the law of admiralty that the elements of both maintenance and cure are inseparable and both must run concurrently, for one is contingent upon the existence of the other. Thus, if the expectation and possibility of cure has ceased, the right to maintenance and cure no longer continues. The liability for maintenance and cure does not extend beyond the time when the maximum cure possible has been effected. Farrell v. United States, 336 U.S. 511, 69 S. Ct. 707, 93 L. Ed. 850; Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L. Ed. 993; Moen v. Endresen, D.C., 103 F.Supp. 541.
It is not in dispute and the medical testimony unequivocally establishes that the administration of heat or lamp treatment to the injured area was in no way curative. The condition experienced by the seaman is lingering and may continue for the balance of his life. Exploratory surgery was suggested by the personal physician of libellant as a means of possibly eliminating the condition, and the medical testimony is in dispute as to whether such surgery would better or aggravate the condition. Be that as it may, libellant has not and has expressed the desire to not submit to such surgery.
At the most, the heat therapy has only a temporary alleviating or ameliorating effect, and it will not cure, eliminate or improve the condition which will be permanent.
If libellant had visited a hospital or any physician for treatment in an effort to effect a cure during any of the 651 day period, he would be entitled to maintenance and cure for any such days. Cognizant of the fact that an employee is free to use his off-days in any manner that he might see fit, including gainful employment or otherwise.
However, libellant has presented no evidence to establish any medical visitations during this period, or that the treatments given were a basis or an ...