Case: 11-31142 Document: 00511854460 Page: 1 Date Filed: 05/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2012
No. 11-31142 Lyle W. Cayce
Summary Calendar Clerk
MICHELLE ALARIO,
Plaintiff–Appellant,
v.
OFFSHORE SERVICE VESSELS, L.L.C.; C-ESCORT M/V, in rem,
Defendants–Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-5440
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Michelle Alario alleges that she fell and injured herself while she was
employed by Offshore Service Vessels, L.L.C. (OSV) aboard the C-ESCORT M/V.
She sued for damages on theories of negligence and unseaworthiness and also
sought maintenance and cure. The district court granted summary judgment to
defendants on all claims. Alario appeals the district court’s dismissal of her
claim for maintenance and cure. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-31142
I
Alario alleges that, while employed as a cook by OSV aboard the
C-ESCORT, she fell and hit her arm and shoulder, leading to arm, neck, and
shoulder pain. She received orthopedic treatment for these injuries, including
surgery and physical therapy, but continued to complain of pain. She saw a
neurologist, Dr. Jamie Huddleston, and underwent diagnostic testing, including
an electromyogram and nerve conduction study (EMG/NCS), which appeared
normal. Her orthopedist, Dr. Jonathan Shults, concluded that Alario had
reached maximum medical improvement and “gotten all the improvement she
will from [physical therapy].”
Several months after Dr. Shults’s determination, Alario filed this lawsuit.
She asserted claims for damages based on the negligence of OSV and the
unseaworthiness of the C-ESCORT, and she also sought maintenance and cure.
Alario obtained another EMG/NCS, which indicated it was an “[a]bnormal
study” and reported “moderate median entrapment neuropathy,” possibly
residual from previous carpal-tunnel syndrome, as well as “acute lower cervical
radiculopathy.”
After this study, the district court granted OSV’s motion for summary
judgment on negligence and unseaworthiness but permitted the maintenance
and cure claim to move forward based on “the possibility, perhaps remote, that
[Alario] ha[d] not reached maximum medical improvement,” as suggested by the
second EMG/NCS.
As the case progressed, Dr. Huddleston gave a deposition. She stated that,
as of the last time she saw Alario, she could not provide any further treatment
but that an epidural steroid injection performed by another doctor could perhaps
provide pain management and improve Alario’s “overall functioning.” When
asked if additional treatment would be “palliative in nature,” Dr. Huddleston
responded, “It was not going to change the structural problems in her neck.” Dr.
2
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No. 11-31142
Huddleston also reviewed the second EMG/NCS and indicated that the second
study did not change her opinions.
A second orthopedist provided an independent medical analysis of Alario.
He found no significant abnormalities, and he concluded that any symptoms that
might develop in the future would not be related to the alleged incident. He
recommended treatment with over-the-counter pain medications and a return
to work, which he thought would help Alario’s emotional state.
Following another motion for summary judgment, the district court
concluded that Alario had reached maximum medical improvement and granted
summary judgment on the maintenance and cure claim as well. Alario appeals
that decision, arguing that because Dr. Huddleston said that steroid injections
could possibly improve Alario’s condition, there is a genuine issue of material
fact with respect to whether Alario is entitled to continued maintenance and
cure.
II
We review a district court’s grant of summary judgment de novo, using the
same standards that the district court applied.1 Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”2
Maintenance and cure is the payment of living and medical expenses for
a seaman who becomes sick or injured in a ship’s service.3 It must be paid by the
seaman’s employer until the point of “maximum medical recovery” or “maximum
1
Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 990 (5th Cir. 2001) (citing
State Farm Fire & Cas. Ins. Co. v. Keegan, 209 F.3d 767, 768 (5th Cir. 2000)).
2
FED. R. CIV. P. 56(a).
3
Vaughan v. Atkinson, 369 U.S. 527, 531 (1962); Pelotto v. L&N Towing Co., 604 F.2d
396, 400 (5th Cir. 1979).
3
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No. 11-31142
cure.”4 “[M]aximum cure is achieved when it appears probable that further
treatment will result in no betterment of the seaman’s condition,” a
determination that would be appropriate if the seaman’s injury is incurable or
future treatment would merely relieve pain and suffering but not otherwise
improve the seaman’s physical condition.5 Ambiguities or doubts regarding the
seaman’s right to maintenance and cure should be resolved in favor of the
seaman.6
The two orthopedists who examined Alario concluded, respectively, that
she had reached maximum medical improvement and that she had no continuing
abnormalities. Alario does not contest these determinations. Her only
contention is that Dr. Huddleston’s testimony raises a genuine issue of material
fact with respect to her having reached maximum cure.
Alario points to several statements in Dr. Huddleston’s deposition in
support of this claim, but all of them refer specifically to the potential alleviation
of pain rather than the curing of an underlying condition. Dr. Huddleston
specifically noted that the proposed treatment would not “change the structural
problems in [Alario’s] neck.” Alario has not provided any medical opinion that
further treatment would improve her physical condition or do anything but
relieve pain and suffering. Palliative treatment alone is insufficient to
demonstrate an entitlement to continued maintenance and cure.
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
4
Vaughan, 369 U.S. at 531; Pelotto, 604 F.2d at 400.
5
Pelotto, 604 F.2d at 400.
6
Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990) (quoting Vaughan, 369
U.S. at 532).
4