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Thomas v. Board of Review

Decided: March 19, 1964.

VIRGIL T. THOMAS, APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND AMERICAN EXPORT LINES, INC., RESPONDENTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

The question to be resolved on this appeal is whether appellant Thomas, a United States merchant seaman employed on a vessel registered, enrolled and licensed under the maritime laws of the United States, and owned and operated by a New Jersey company, is entitled to temporary disability benefits while an inpatient at a U.S. Public Health Service hospital because of a disability sustained during a voyage.

American Export Lines, Inc., a New Jersey corporation, employed Thomas on October 19, 1962 as a wiper aboard its vessel, the SS Exemplar. The Exemplar is an American vessel duly registered, enrolled and licensed under the maritime laws of the United States. Thomas became ill while at sea and signed off when the Exemplar docked in New York City on February 4, 1963.

As a seaman employed on a vessel of the United States, registered, enrolled and licensed under its maritime laws, Thomas was entitled to medical, surgical and dental treatment and hospitalization without charge in a hospital or other station of the U.S. Public Health Service. 42 U.S.C.A. § 249(a)(1); Code of Federal Regulations, Title 42,

§ 32.6(a)(1). On February 7 he reported to the hospital maintained and operated by the Service on Staten Island. Thomas gave a history of weakness and a heavy dry cough during the preceding two weeks. He had vague complaints about his chest. An X-ray of the chest revealed a fibronodular infiltrate in both upper lobes.

Thomas was treated as an outpatient until February 14; he was then admitted to the hospital as an inpatient, and provided with full medical care and treatment, without cost to him. The hospital records indicate that he was suffering from tuberculosis, moderately advanced. Thomas was discharged from the hospital on May 6, 1963, "not fit for duty," and given a return appointment. Thereafter he continued to receive medical treatment as an outpatient.

In accordance with the maintenance and cure requirements of maritime law, American Export Lines paid Thomas maintenance at the rate of $8 a day while he was receiving outpatient treatment prior to his admission as an inpatient as well as following his discharge from the hospital. He received no cash maintenance payments from his employer during the period he was an inpatient. However, as a member of the National Maritime Union, Thomas received $40 a week from its welfare fund during the period of his disability.

American Export Lines is a covered employer under the New Jersey Unemployment Compensation Law (R.S. 43:21-1 et seq. , as amended) and the Temporary Disability Benefits Law (N.J.S.A. 43:21-25 et seq.). Thomas filed a claim on February 18, 1963 seeking temporary disability benefits under the State Plan of the latter law (N.J.S.A. 43:21-37 to 42). On February 28 the Chief of State Plan Disability Benefits in the Division of Employment Security, Department of Labor and Industry, held Thomas ineligible for disability benefits, giving as his reason that our Supreme Court had recently decided that benefits cannot be paid for any period of disability for which claimant was entitled to receive maintenance and cure. His reference was, of course, to Seatrain Lines, Inc. v. Medina , 39 N.J. 222 (1963).

Thomas appealed to the Appeal Tribunal of the Division. After a hearing it held that the treatment, maintenance and lodging provided for Thomas at public expense through the period of his disability as an inpatient at the U.S. Public Health Service Hospital were benefits received under "similar legislation * * * of the Federal Government," within the meaning of N.J.S.A. 43:21-30. Therefore, under the holding of the Seatrain Lines case, payment of benefits could not be made for that period under the Temporary Disability Benefits Law.

On further appeal the Board of Review affirmed the decision of the Appeal Tribunal on the basis of the record below.

Thomas readily concedes that he could not recover the general maritime law "maintenance and cure" from his employer while an inpatient. This is because the maintenance and cure ordinarily provided by an employer under maritime law has its equivalent in the care and treatment ...


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