UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-30805

MNM BOATS, INC.,

Plaintiff-Appellee,

VERSUS

NEAL H. JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court For the Eastern District of Louisiana (97-CV-1892-S c/w 97-CV-3588-S) January 22, 2001

Before DUHÉ and PARKER, Circuit Judges, and FOLSOM1, District Judge.

PER CURIAM:2

Appellee MNM Boats, Inc. (“MNM”) filed a declaratory judgment

suit against its employee, Appellant Neal H. Johnson (“Johnson”),

to resolve the question of its obligations to Johnson for payments

of maintenance and cure. MNM provided maintenance and cure to

Johnson after he was injured while working aboard a vessel that MNM

1 District Judge of the Eastern District of Texas, sitting by designation. 2 Pursuant to 5TH Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. operated. Eventually, the company physician, Dr. Rutledge, and

another doctor each determined that Johnson had no impairment and

that he could return to work. Dr. Rutledge later discharged

Johnson because Johnson failed to keep several appointments and

follow the prescribed treatment, and MNM ceased making maintenance

and cure payments. Thereafter, Johnson consulted his own physicians

who made contradictory medical findings. Based on the testimony of

Johnson's doctors, the district court held that Johnson had not

reached maximum medical improvement and was therefore entitled to

past and future maintenance and cure, until such time as his

treating physician determined that additional treatment would

probably not improve his condition. However, the court did not

award Johnson compensatory damages and attorney's fees from MNM for

the termination of and failure to reinstate the maintenance and

cure payments, because it found that the termination was not

unreasonable since there had been a genuine dispute among the

physicians. Johnson now appeals that ruling.

DISCUSSION

The maintenance and cure obligation is designed to provide a

seaman who is injured while in the service of his ship with

reimbursement for his medical and subsistence expenses until he

reaches maximum medical improvement. Vaughn v. Atkinson,

,

,

(1962); Morales v.

Garijak, Inc.,

(5th Cir. 1987), abrogated on

other grounds by Guevara v. Maritime Overseas Corp.,

(5th Cir. 1995). Upon receiving a claim for maintenance and cure,

the employer is entitled to investigate and require corroboration

of the claim before making payments. Morales,

.

If the employer, after investigating the claim, refuses to pay

without a reasonable defense, he becomes liable not only for

maintenance and cure but also for compensatory damages. In

addition, if the employer has exhibited callousness and

indifference to the seaman's plight, he becomes liable for

attorney's fees. Id.; Guevara,

. We have

described the conduct giving rise to a claim for attorney's fees as

“callous and recalcitrant,” “arbitrary and capricious,” and

“willful, callous, and persistent.” Holmes v. J. Ray McDermott &

Co., Inc.,

(5th Cir. 1984), overruled on other

grounds by Guevara,

. When the seaman refuses

treatment, the employer is not obligated to make payments for the

days voluntarily spent without care. Brown v. Aggie & Millie,

Inc.,

(5th Cir. 1973).

We must review the district court's finding that an employer

has not acted unreasonably or arbitrarily in terminating

maintenance and cure only for clear error. Breese v. AWI, Inc.,

(5th Cir. 1987). We find no clear error here.

As the finder of fact, the trial court was entitled to weigh the

evidence and the credibility of the physicians to determine whether

MNM had a genuine reason to terminate the maintenance and cure

payments. In its order and reasons for awarding maintenance and

3 cure, the trial court noted that although there was some question

about whether Johnson could afford to pay for transportation to his

missed appointments with Dr. Rutledge, Johnson clearly did not

follow Dr. Rutledge's recommendations on exercise. The court also

noted that after Johnson's own physician, Dr. Dyas, recommended he

undergo surgery, Dr. Rutledge reexamined Johnson and confirmed that

he still found no evidence of debilitating injury and that he

believed that surgery would in fact worsen Johnson's condition.

Later, the second doctor consulted by MNM reviewed Dr. Dyas's

findings and agreed that surgery was not indicated. Nevertheless,

as the trial judge observed in refusing to amend the judgment,

MNM's claims representative continued to pursue Johnson's claim and

to refer new medical information to MNM's physicians despite their

opinions that there was no medical evidence to support Johnson's

complaints.

Accordingly, we find no clear error in the district court's

finding that MNM did not act unreasonably or egregiously. We have

stated that a failure to pay maintenance and cure is reasonable if

a diligent investigation indicates that the seaman's claim is not

legitimate. Morales,

. The trial court,

therefore, was perfectly entitled to find that MNM's conduct was

reasonable, after taking account of MNM's ongoing investigation of

Johnson's claims, the two physician's opinions that Johnson had no

debilitating injury, and their opinion that surgery was not

advisable. The court was entitled to make this finding even though

4 it ultimately concluded that Johnson had not reached maximum

medical improvement. Further, Johnson has not identified any

conduct on the part of MNM which would rise to the level of a

callous disregard for his plight.

Moreover, we refuse to adopt the rule that necessarily follows

from Johnson's position, which is that any time there is a dispute

among physicians concerning the employee's condition, any

termination of maintenance and cure by the employer is per se

unreasonable or egregious. We acknowledge the rule that doubts

about the employer's obligation to pay maintenance and cure should

be resolved in favor of the seaman. Vaughn,

,

. However, Johnson has cited no case holding that a

dispute among physicians, without more, is an unreasonable or

arbitrary basis for terminating maintenance and cure which triggers

an obligation to pay compensatory damages and attorneys fees, and

we have found none.

Johnson has also appealed the district court's denial of his

motion to enforce payment of the judgment with respect to

maintenance and cure which has accrued since the date of trial.1

However, at oral argument, counsel for both parties confirmed that

MNM has brought Johnson's maintenance and cure payments up to date.

1 Although Johnson's notice of appeal designated the denial of his motion for reconsideration of the motion to enforce the judgment as the order appealed, that timely filed motion brought up the underlying order for review, and the appeal may be properly taken from the underlying order. See Fletcher v. Apfel,

(5th Cir. 2000).

5 Therefore, Johnson's appeal of the district court's ruling on this

matter is moot.

CONCLUSION

Because we have found no clear error in the district court's

decision denying Johnson compensatory damages and attorney's fees,

we AFFIRM. We also AFFIRM the district court's denial of Johnson's

motion to enforce payment of judgment. Johnson's motion to

supplement the record, which was carried with the case, is DENIED.

The medical information offered was not submitted to the district

court and we cannot consider it.

AFFIRMED.

6