reimbursed by the defendant as part of the maintenance and cure payments which defendant concededly and voluntarily made. There is a similar absence of evidence tending to show that the expense of the foot braces which plaintiff was compelled to wear as a result of the injuries which he sustained in the service of the vessel was not included in the voluntary payments by the defendant to the plaintiff or for his account.
After he had completed his testimony on plaintiff's principal claim for indemnity, Dr. Boyle was recalled by the plaintiff in support of the claim for maintenance and cure. He testified that he had been paid for all of his services to the plaintiff to March 2, 1955 and that all subsequent services which he had rendered and was continuing to render were being furnished without charge to the plaintiff. The doctor explained that all treatments given to the plaintiff since he was discharged on August 11, 1955 were for the purpose of reducing disabling pain and that the extent of future treatments of similar character and for a similar purpose was not susceptible of definite prediction.
Dr. Raymond P. Reilly, who examined plaintiff on two occasions (December 20, 1954 and March 17, 1955) expressed the opinion that continued physiotherapy might be helpful in the treatment of circulatory obstruction, and that such treatment might be necessary for a period of a few years in the future in order to achieve a possible improvement.
Based upon his neuropsychiatric examination made of the plaintiff on May 4, 1957, Dr. Rubin A. Gerber expressed the opinion that he found the plaintiff in what the doctor characterized as a 'post-concussional state' superimposed upon the admittedly permanent defects of the orthopedic injuries which the plaintiff had sustained. He expressed the opinion that the plaintiff would require considerable further treatment but was unable to determine the nature, frequency or duration of such treatment without first having what he described as the benefit of 'medical, neurological, neuropsychiatric and neurosurgical work-ups.' In addition to treatment for the orthopedic disability this doctor expressed the view that the plaintiff would require future psychiatric treatments; estimating all future treatments to extend for a period of approximately two years and to involve 'at Workmens Compensation rates' a probable cost of from $ 1,000 to $ 2,500 for the orthopedic treatments and $ 300 for the psychiatric treatments.
Disregarding the testimony of defendant's expert, Dr. George H. Hyslop, who was of the opinion that further treatment was contra-indicated, I find the evidence insufficient to support findings of fact (1) that defendant has not discharged its obligation to plaintiff to provide the means of cure of the injuries sustained by plaintiff in the occurrence complained of in this action; or (2) that further treatment will be likely to effect a diminution of the permanent disability from which plaintiff suffered on August 11, 1955 in consequence of his injury; or (3) that, if further treatment would probably be effective to work an improvement in plaintiff's condition, such treatment would be of any particular kind in any particular field or be of such probable frequency and extend over such an aggregate period of time and involve such probable cost as would justify an award at this time in any specific amount to provide for such future treatment. In sum, therefore, I find no evidence which might support a determination that the defendant has not fully discharged its obligation to the plaintiff to furnish maintenance and cure on account of the injuries which the plaintiff sustained on February 5, 1954 in the service of the defendant's vessel.
There is another factor which would preclude any future award to the plaintiff for maintenance and cure. I refer to the plaintiff's failure to avail himself of the facilities of the New Jersey Rehabilitation Commission for his restoration to the status of an employable. As was pointed out in the Calmar case, supra, and reiterated in Wilson v. United States, 2 Cir., 1956, 229 F.2d 277, a seaman injured in the service of his vessel is required to mitigate his damages by availing himself of all existing facilities for his rehabilitation. In Johnson v. United States, 1947, 333 U.S. 46, 68 S. Ct. 391, 92 L. Ed. 468, the seaman's refusal to avail himself of the gratuitous facilities of various Government hospitals recommended by the doctors of the United States Public Health Service who treated him, led to the affirmance of the decision of the Ninth Circuit Court of Appeals that the seaman had forfeited his right to maintenance and cure.
The factual situation with which the Court was confronted on defendant's motion to dismiss the second count of the complaint is strongly suggestive of that presented to the Second Circuit Court of Appeals in 1954 in Desmond v. United States, 217 F.2d 948, 949, and the language of Judge Frank in that case seems peculiarly apposite here:
'And when meaningful hopes for recovery end, the shipowner's liability ends. [Citing the Calmar case.] No different answer is suggested by testimony of the libelant's medical witness that further treatments are indicated. The treatments to which he refers are for a period subsequent to the date of trial and not for the period for which maintenance and cure have been allowed. But even assuming that these treatments would have been appropriate during the period in question, it does not follow that the respondent would be liable for their cost. For the physician indicated that the purpose of the treatments were not primarily to cure the patient, but to 'carry him along,' to relieve him, and to 'make him more comfortable'.'
In 1955 Chief Judge Clark of the same Circuit, in Buch v. United States, 220 F.2d 165, 166, reversed the District Court's award of maintenance and cure to an injured seaman by reason of 'a lack of definite evidence to support the award' because libellant's expert had expressed doubt whether his suggested future rehabilitation program would effect any improvement in the patient's condition and because the patient had shown no inclination to the date of the trial to undertake the program.
There has been no evidence in this case as to future maintenance and cure which would fulfill the requirements of certainty and immediacy set forth in the Calmar case, supra.
Since the trial of the case, the Court has come to believe that the plaintiff was entitled to a jury trial with respect to his claim for maintenance and cure as well as his claim under the Jones Act. See Rey v. Colonial Navigation Co., 2 Cir., 1941, 116 F.2d 580; Moyle v. National Petroleum Transport Corp., 2 Cir., 1945, 150 F.2d 840. However, since there is no jury question presented by the evidence, to have retained the jury would not have affected the outcome. Since the evidence does not support a recovery for the plaintiff, the defendant's motion for judgment should prevail.
An order may be submitted in accordance with the opinions herein expressed.
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