personnel manager, contacted plaintiff by phone and asked him to return to work. Plaintiff replied he was ready to go back to work. He made no comments about his physical condition or complaints. Plaintiff did not report back to work, and after subsequent unsuccessful attempts to contact him, his employment status was terminated in November, 1967.
On October 13, 1967, plaintiff retained legal counsel (PX-7). On October 24, 1967, he reported back to Dr. Gibert, and on this, the third visit, he mentioned an injury. However, "he was very indefinite as to the date of his injury and how he hurt his shoulder" (PX-1). (His previous complaint with respect to this accident concerned his chest and stomach, not his shoulder.) He reported again to Dr. Gibert on October 28, 1967, and this time inquired about psychiatric examination. He was told that he could be sent to Detroit for such services (PX-1).
Plaintiff did not return to Gallipolis USPHS Hospital until March 19, 1968. On this occasion he was advised that his Health Service eligibility had expired and that he must obtain written proof that he had received treatment since he last saw Dr. Brown (USPHS) in November, 1967 (DX-D).
On June 11, 1968, plaintiff voluntarily entered Lakin State Hospital as an inpatient. After only a week, however, he eloped (PX-4). Prior to his elopement, a medical examination revealed that physically he was "within normal limits", and it was noted, "patient expresses numerous hypochondrical complaints -- back, heart, etc." (PX-4). A neurological examination was reported "negative". A tentative diagnosis presented on June 17, 1968 was "schizophrenic reaction, paranoid type" (PX-4). An x-ray of the chest taken June 11, 1968 was "normal" (PX-4). On June 13, 1968, plaintiff gave a history of neck, back and chest pain, and also dizzy spells, nerve trouble and headaches (Contact Report, PX-4). He left after a week because they were only giving him "medicine * * * for * * * [his] nerves" and he wanted "to try to get medication and help someplace else" for his other ailments.
Since August 25, 1967, plaintiff has been employed as a deckhand by at least three employers; he was employed on one occasion to help erect Christmas decorations, and on another to cut weeds. However, plaintiff has never been able to hold a steady job. He also has problems in communicating and getting along with people.
Plaintiff's complaints have not in any way subsided. Indeed, from his testimony at trial his complaints were more magnified than in the past. His complaints and symptoms at trial included his neck, his entire back (upper, middle and lower), his chest and shoulder, dizzy spells, headaches, nerve troubles, and trouble with his eyes.
The tentative diagnosis of Dr. Gonzalez of the Lakin State Hospital was "schizophrenic reaction, paranoid type", and this was concurred in by practically all the doctors who testified. The seeds of his mental illness were probably sown in his abnormal childhood, but did not come to noticeable fruition until after he was hurt on November 20, 1962. It is possible that this mental disease is responsible for his continued complaints of pain in his back, neck, chest and shoulder, and dizziness, blurry vision, headaches and nervous condition. Stated another way, his mental disease is possibly responsible for his hypochondriasis.
Maintenance and cure is compensation of a contractual form given by general maritime law to a seaman who becomes sick or is injured while in the service of his vessel. This obligation on the part of the shipowner is deep-rooted in maritime law and is an implied term of the contract for maritime employment. McCorpen v. Central Gulf Steamship Corporation, 396 F.2d 547 (5th Cir. 1968). Although the shipowner's duty to provide maintenance and cure is broad, the seaman still bears the burden of alleging and proving facts bringing him within its scope. Prendis v. Central Gulf Steamship Company, 330 F.2d 893 (4th Cir. 1963). This burden requires a showing that the illness or injury occurred, was aggravated or manifested itself while the seaman was in the service of the ship. Stewart v. Waterman Steamship Corporation, 288 F. Supp. 629 (E.D.La.1968); Norris, The Law of Seamen, Vol. 1, § 556.
The plaintiff contends that he is entitled to maintenance and cure for reinjury of his back allegedly sustained on the defendant's ship and also that "his psychiatric condition was aggravated or precipitated to the point of disability" (plaintiff's "Brief for Plaintiff on Claim for Maintenance and Cure", p. 7). It is our opinion that his contentions are not supported by a fair preponderance of the evidence.
First of all, regarding the alleged physical injuries, the plaintiff did not sustain his burden of proving that he sustained an injury of any kind on August 25, 1967. No one was told of the alleged accident until almost two months later and after he had engaged legal counsel. The crew members, to whom the plaintiff talked and asked for help, who he alleged were witnesses to the accident and who would be expected to corroborate his testimony, did not do so. In this regard, we concur in an observation so well stated by Judge Willson of this court:
"In this regard my experience as a trial judge in trying many FELA and Jones Act cases is that crewmembers will generally support one another when the issue arises as to whether a brother employee was hurt or whether a report was made of an injury received by one of them. I find this is so even in respect to conductors in charge of trains and captains in charge of vessels. They do not hesitate to confirm an injury or at least the report of an injury because it is of no consequence to them one way or another." Walker v. Ohio River Company (Adm. No. 64-5, unreported opinion dated February 2, 1965).