Ramirez v. Winter Blues Inc et al

Ramirez v. Winter Blues
No. 3:20-cv-00002-SLG-DMS
R&R re Mtn to Terminate Maintenance 	1
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
MARCO RAMIREZ,
Plaintiff,
vs.
WINTER BLUES, INC., in personam;
THE F/V WINTER BLUES, OFFICIAL
NO. 612146, HER ENGINES,
MACHINERY, APPURTENANCES AND
CARGO, in rem,
Defendant.
No. 3:20-cv-00002-SLG-DMS
REPORT AND
RECOMMENDATION1 TO DENY
DEFENDANT’S MOTION TO
TERMINATE MAINTENANCE
[Dkt. 39]
I. 	INTRODUCTION
Defendant Winter Blues, Inc. requests an order terminating its obligation to pay
maintenance to Plaintiff Marco Ramirez stemming from an alleged knee injury Ramirez suffered
while in the service of fishing vessel Winter Blues (Dkt. 39). The defendant asserts that Ramirez
has reached maximum medical improvement, and therefore is no longer entitled to maintenance
payments from the defendant (Dkt. 39 at 1). To support its motion, the defendant submitted a
report from Dr. Scot A. Youngblood regarding his independent medical examination of Ramirez
on January 15, 2021 (Def. Ex. 2).
Ramirez responds in opposition, asserting that maximum medical improvement has not
been reached (Dkt. 41). To support that assertion, Ramirez submitted a letter from his treating
1 This report and recommendation is being issued as a final report and recommendation. Pursuant to Fed. R. Crim. P.
59(b)(3), any objections will be considered by the District Court Judge who will accept, reject, or modify the
recommendation, or resubmit the matter to the Magistrate Judge for additional consideration and recommendations.
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physician, Dr. Brent Adcox, dated March 10, 2021 (Pl. Ex. 1), as well as Dr. Adcox’s referral
order for Ramirez to see a specialist to further evaluate and treat Ramirez’s knee pain (Pl. Ex. 2).
II. 	STATEMENT OF FACTS
A. Ramirez’s Injury and Maintenance Payments
On or around July 10, 2019, Ramirez allegedly suffered a knee injury while in the service
of fishing vessel Winter Blues and was unable to return to work (Dkt. 19-1 at 1). Ramirez filed a
claim for seaman’s benefits with Bristol Bay Reserve (Dkt. 21 at 1). Bristol Bay Reserve
appraised his daily maintenance payment at $53 (Dkt. 21-4). Ramirez brought this action to
resolve a dispute in the daily maintenance payment amount to which he was entitled (Dkt. 1 at
3). On September 11, 2020, the District Court adopted the Magistrate Judge’s Report and
Recommendation, granting partial summary judgement on the per diem rate of maintenance
(Dkt. 29 at 1). Ramirez’s daily maintenance amount was set at $59.41 by the Court (Dkt. 29 at
2).
B. Independent Medical Examination of Ramirez by Dr. Youngblood
The Court ordered Ramirez to submit to an independent medical examination (IME)
pursuant to Federal Rule of Civil Procedure 35 in Anchorage, Alaska no later than February 15,
2021 (Dkt. 38). The IME was conducted on January 15, 2021 by Dr. Youngblood (Def. Ex. 2).
Dr. Youngblood’s diagnoses were as follows:
1. 	Right knee sprain, without evidence of fracture, dislocation, internal
derangement, related to the industrial injury of July 10, 2019, long ago
resolved and medically stable.
2. 	Right knee anterior medical contusion, with bone bruising noted on the MRI
of February 6, 2020, clearly postdating and not related to the industrial injury
of July 10, 2019, resolved and medically stable.
3. 	Subject complaints in excess of objective findings.
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(Def. Ex. 2 at 13). Dr. Youngblood reported that Ramirez had reached maximum medical
improvement for the knee injury resulting from the vessel incident on July 10, 2019,
stating further that “[o]ne would have expected that the initial right knee sprain would
have resolved some six weeks after the injury, on August 24, 2019” (Def. Ex. 2 at 13). He
reported that “no additional treatment is indicated, recommended, reasonable, or
necessary” for the injury (Def. Ex. 2 at 14).
C. Diagnoses from Ramirez’s Treating Physician Dr. Adcox
Since at least August 19, 2019, Ramirez has received evaluation and treatment of his
knee injury by Dr. Adcox (Def. Ex. 2 at 3). A MRI of Ramirez’s right knee was conducted on
June 24, 2020 and on June 25, 2020, Dr. Adcox noted there was “no evidence of meniscus tear
[or] ligamentous injury to the MCL, LCL, ACL or PCL,” however there was swelling, and it was
tender (Def. Ex. 1 at 2). Dr. Adcox noted that Ramirez “would be best served by not fishing this
season,” adding that “if he takes this year off, allows the knee to rest, he has the potential to
continue his career as a crab fisherman next summer”2 (Def. Ex. 1 at 2).
On March 10, 2021, Dr. Adcox sent a letter to plaintiff’s counsel stating, “I anticipate
that Mr. Ramirez’s knee injury will improve with continued antiinflammatories and physical
therapy” (Pl. Ex. 1). On March 8, 2021, Dr. Adcox provided Ramirez with a referral order to see
a specialist for further evaluation and treatment of his knee pain (Pl. Ex. 2). Plaintiff’s counsel
provided a declaration to the Court, stating that Ramirez “recently obtained a second medical
opinion in Kenai, AK. As of this declaration, I have not yet received the records from that
appointment” (Pl. Ex. 3).
2 It is unclear from the information before the Court whether the treating physician meant Ramirez needed only to sit
out the 2020 summer fishing season or wait a full twelve months before returning to work.
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III. APPLICABLE LAW
Seamen injured in the course of their employment are entitled maintenance and cure
benefits. Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 527-28 (1938). “Maintenance and cure is
designed to provide a seaman with food and lodging when he becomes sick or injured in the
ship’s service; and it extends during the period when he is incapacitated to do a seaman’s work
and continues until he reaches maximum medical recovery.” Vaughan v. Atkinson, 369 U.S. 527,
531 (1962).
Courts have disagreed as to whether a summary judgment standard or “unequivocal
evidence” standard applies to pretrial motions to terminate maintenance; the Ninth Circuit
recently recognized this discrepancy among lower courts but declined to decide which standard
is correct. Barnes v. Sea Hawaii Rafting, LLC, 889 F.3d 517, 538 n.17 (9th Cir 2018).
In the District of Alaska, courts have applied an unequivocal evidence standard. See
Conger v. K & D Fisheries et al., No. 3:17-cv-00231-SLG, Dkt. 46 at 3 (D. Ak. May 22, 2018)
(the court applied an unequivocal evidence standard to resolve a pretrial motion to terminate
maintenance, stating “[b]ecause an intervening case from the Ninth Circuit, Barnes v. Sea
Hawaii Rafting, LLC, expressly declined to direct otherwise, the Court again applies the
equivocation standard to the instant case”).
Therefore, in order to succeed on a pretrial motion to terminate maintenance, the movant
must demonstrate there is unequivocal evidence that maximum medical improvement has been
reached. Id. The decision to terminate payments for maintenance and cure “must be
unequivocal” and should “consider all available medical evaluations whether the claimant is fit
for duty.” Sefcik v. Ocean Pride Alaska, Inc., 844 F. Supp. 1372, 1373 (D. Alaska 1993) (citing
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Johnson v. Marlin Drilling Co., 893 F.2d 77, 79 (5th Cir. 1990)). “When there are ambiguities or
doubts as to a seaman’s right to receive maintenance and cure, they are resolved in favor of the
seaman.” Gorum v. Ensco Offshore Co., No. CIV.A. 02-2030, 2002 WL 31528460, at *6 (E.D.
La. Nov. 14, 2002), aff'd as amended, 80 F. App’x 353 (5th Cir. 2003) (citing Vaughan, 369 U.S.
at 532). “Where conflicting medical opinions exist, a shipowner will likely not meet the
unequivocal evidence standard.” Davis v. Brunsman, No. 3:19-CV-01221-AC, 2021 WL 291451,
at *9 (D. Or. Jan. 28, 2021).
IV. 	DISCUSSION
Although the defendant supplies the Court with a comprehensive report from Mr.
Youngblood indicating that maximum medical cure had been reached, Ramirez’s treating
physician, Dr. Adcox, stated on March 10, 2021 that Ramirez’s injured knee would further
recover with medication and physical therapy, therefore opining that maximum medical
improvement had not been reached. Given the conflicting determinations of Dr. Youngblood and
Dr. Adcox, the defendant fails to meet the unequivocal evidence standard for pretrial termination
of maintenance. See Conger, No 3:17-cv-00231-SLG, Dkt. 46 at 5; Gorum, 2002 WL 31528460,
at *6.
The Court notes that the defendant can move for an expedited trial on the maintenance
claim pursuant to Federal Rule of Civil Procedure 42(b), at which time each party could present
evidence as to whether Ramirez has reached maximum medical cure. See Conger, No 3:17-cv-
00231-SLG, Dkt. 46 at 5 (citing Barnes, 889 F.3d at 539 (recognizing that a district court may
“sever the issue of maintenance and hold an expedited trial on that claim under Federal Rule of
Civil Procedure 42(b)”); Dean v. Fishing Co. of Alaska, 177 Wash. 2d 399, 415 (2013) (“[I]f the
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Ramirez v. Winter Blues
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shipowner wishes to terminate paying maintenance and cure, the shipowner could move for an
expedited trial under CR 42(b). At an expedited trial, the shipowner would have the burden to
prove, by a preponderance of the evidence, that the seaman has reached maximum cure”)).
V. CONCLUSION
For the foregoing reasons, the Court recommends that the District Court DENY the
Motion to Terminate Maintenance at docket 39 and direct the defendant to continue maintenance
payments until the issue is resolved at trial or by further order of the Court.
DATED this 18th day of March, 2021 at Anchorage, Alaska.
/s/Deborah M. Smith
CHIEF U.S. MAGISTRATE JUDGE
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