Permanent Midnight(1998)
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36. At trial, Dr. Portner testified that after examining Plaintiff on April 8, 1998, he believes Plaintiff is permanently and totally disabled to perform work as an ordinary seaman. Dr. Portner's testimony in this regard was based in large part on Plaintiff's own subjective reports of his condition to Dr. Portner. Plaintiff also testified that his condition had worsened and that he was unable to perform work or other physical activities that he once could. The court finds this testimony is not credible given the reports previously provided by Dr. Portner indicating that Plaintiff had improved and was 85% better just one month before. Therefore, in light of all of the evidence adduced at trial, the court finds that Plaintiff was fit for duty as of January 8, 1998, and is not permanently and totally disabled to perform the work of an ordinary seaman.
Plaintiff's request for found during the period of delay when maintenance was not immediately paid, would allow Plaintiff an award of double recovery for that period. Plaintiff was paid maintenance during that time, albeit not immediately, and an award of found during the same period is not appropriate. See supra note 3. Although there may have been a delay between April 5, 1997 to May 21, 1997, in the payment of maintenance to Plaintiff, Plaintiff is not entitled to an award of found during that period. Additionally, an award of found is improper on these facts, even for the period after which maintenance payments ceased, as Plaintiff was declared fit for duty on January 8, 1998, and is not permanently disabled. Thus, the court declines to award Plaintiff any amount for found.
[3] The Fifth Circuit referred to a law review article clarifying that once a physical disability is declared permanent, there is no longer a claim for maintenance, rather the injured plaintiff's claim for found become viable. Once the plaintiff's claim for maintenance terminates, he may then be entitled to found. There is no double recovery for maintenance and found within the same time period. See Pickle, 791 F.2d at 1242 n. 6 (citing Normann, Has Found Been Lost An Analysis of a Seldom Utilized Concept in the Maritime Law, 30 Loy.L.Rev. 875, 877 (1984)). 59ce067264
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