UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30982
Summary Calendar
LARRY S. TURNER
Plaintiff-Appellant/
Cross-Appellee
VERSUS
PENROD DRILLING CORPORATION and
ENSCO OFFSHORE COMPANY
Defendants-Appellees/
Cross-Appellants
Appeal from the United States District Court
For the Western District of Louisiana
(93-CV-1322)
July 22, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Larry Turner, a Jones Act seaman, injured his back while
lifting a 172-pound oxygen bottle over a six-inch splash guard on
the Penrod 68 drilling rig. Turner sued his employer, Penrod
Drilling Corporation, now known as Ensco Offshore Company, for
Jones Act negligence, unseaworthiness, and maintenance and cure.
The district court held that Penrod was not liable under the Jones
1
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
Act or for unseaworthiness because the injury was caused solely by
Turner’s own negligence. The district court also found that Turner
had not yet reached maximum medical cure and is entitled to
maintenance and cure until he reaches maximum medical cure. Turner
appeals the district court’s finding of no negligence on the part
of Penrod; Penrod appeals the finding of a continuing maintenance
and cure obligation. We affirm.
Because Turner challenges only the district court’s findings
of fact, we review for clear error, that is, we will reverse only
if we are left with the definite and firm conviction that a mistake
has been committed and that the district court could not
permissibly find as it did. Brister v. A.W.I., Inc., 946 F.2d 350
(5th Cir. 1991). Under the Jones Act, an employer is liable to its
employees for its negligent acts or omissions that play any part in
producing the seaman’s injury. Id. at 354. A seaman has a slight
duty to protect himself and use reasonable care. Bobb v. Modern
Products, Inc., 648 F.2d 1051 (5th Cir. 1981). The district court
found that Penrod was not even slightly negligent and that Turner’s
negligence was the sole cause of his injuries.
Turner argues that Penrod failed to properly train and
instruct its employees because Penrod did not instruct employees to
obtain assistance when lifting over 50 pounds. We find no clear
error in the district court’s finding that Penrod’s existing
instructions must be applied with common sense and that the absence
of specific instructions does not constitute negligence.
Penrod appeals the district court’s finding that Turner has
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not reached maximum medical improvement. If a seaman suffers
injury or illness while in the service of his ship, he is entitled
to maintenance and cure from his employer. Davis v. Odeco, 18 F.3d
1237 (5th Cir.), cert. denied, 115 S.Ct. 78 (1994). The obligation
of an employer to pay maintenance and cure continues until maximum
cure or maximum medical improvement has been obtained. Tullos v.
Resource Drilling, Inc., 750 F.2d 380 (5th Cir. 1985), overruled in
part on other grounds by Miles v. Apex Marine Corp., 111 S.Ct. 317
(1990). Maximum cure is achieved when it appears that the seaman’s
condition is cured or is recognized as incurable, that is, further
treatment will not result in any betterment of the seaman’s
condition and is simply for pain relief. Pelotto v. L & N Towing
Co., 604 F.2d 396 (5th Cir. 1979). The determination of maximum
cure is an unequivocal medical, as opposed to judicial,
determination. Tullos, 750 F.2d at 388.
None of Turner’s treating physicians have made an unequivocal
medical determination of maximum medical cure. The district court
found that Turner suffers from a herniated disc, Turner’s
depression and anxiety are related to the back injury, and Turner’s
future medical condition remains uncertain. After reviewing the
record, we find no clear error.
AFFIRMED.
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