back pain and he continuously received treatment for his neck and back pain cannot this litigation such a vote when a spot a limitation liability proceeding on december third twenty fifteen which both mckinley impiously claims for their personal injuries and during a meeting between council for central boat council for enterprise and a claims adjuster for central enterprise marine agreed to reimburse central boat for maintenance care paid by or on behalf of mckinley and price at the around the time the killings treating orthopedists causally related the killings back in decision to the elision and recommended that mckinley undergo back surgery council for enterprise marine then inform council for central both felt that the right thing to do was to ensure this employee receive proper medical treatment based on accommodation of the treating physician in addition to the simple fact that such a boat cares about its people such a boat factored into his decision that the surgery was not necessary for this incident was for preexisting conditions is not a factual finding that we have to review only for clear  it's a factual finding yes we are not appealing that decision what we will be appealing is your hindsight's twenty twentieth's and we're saying at the time that we guarantee paying for the discount and ultimately paid a total one hundred twenty five thousand dollars for the surgery parties vote even though it's ultimately decided that the same is conditions based system where you phrase the question that way and you surely have spoken if you should from your client point of view they do seem to me from the negligent court in the maritime incident they kate their interests are not irrelevant and they are to some extent at your mercy when you are paying the medical costs that may not be related to the incident for which they are responsible so their interests are not into giving and it does seem to me there was no disapproval your then the actual surgery was there not that these that this back surgery may not have been necessitated by the incident yes so in the late fall of twenty sixteen there was a medical records some other records that came up to show that he may have had a p some fairly stiff penalties for failure to do so or you have a variety of organ meant contractual unstoppable looking just at the law of maintenance and cure what spoke in terms of what triggered the need for meetings and sure ok in this situation what triggered that claim for me and secure was the illusion caused by enterprise marine and you know so it's so again it comes down to decision is between these two parties the innocent thus loner and the dirt road toward peace or who has to be or that the risk basically agreed it's really an equitable organ which may be sufficient but isn't that just an you have put you know situations where the employee is also fault and so the third party tortfeasor only has a certain portion of the plate that they end up having to reimburse one hundred percent in the case the party that was going out his home industries was only twenty percent at fault but had in the mean bursting fifty percent of the liability that share with another tortfeasor and home was argument was well that's not fair and the a fault they still are not you know with the majority of having to reimburse with the b anyone it would have to be a reasonable expense because the problem is if it's true that they just since they committed the tort they're responsible for everything what would stop even think oh go to the best doctor i know maybe you need a new you know the surgery on the last one out you know just get the do the best you know all the surgery that the top top prices and we have to be a reasonable expense how would you limit that concern that you would have no there be no reason for you to be vigilant it's all going to be passed on to someone else well in this particular case your honor what's very dovetails with you may talk about the reasons why we made the decision we made and  one of the reasons we had is that we had an agreement in place of the new price to they were voluntarily reimbursing us and as part of that agreement there was a procedure in place for auditing of the medical bills and once they were audited they were then sent in a price range in general that there should be reasonable i don't think it was ever any evidence that this particular cost was unreasonable we had it with the p d surgeon that recommended it was audited medical audited by things adjuster  so i just think that that's an element in all damages cases that it was a recent let's dance so i don't think the rule that i'm asking to make a conscious and also there was reasonably related to this incident  raising a defense that we're not responsible because that's not related to what we're dealing with here whatever it is surgery that you won't you have the right to raise it in the concern that this case arises rages is that in  pursuing that because there is a maybe because or somebody else really ultimately holding the tab you sort of change the whole dynamics of of what that is supposed to protect you mccourt and defense and that you're shifting it to somebody else and by your failure to raise it when the issue itself was was before you well you know that's owner certainly has you know a right to investigate a claim and they have a right to raise in the corp in defense there morning your honor randolph waits on behalf of enterprise marine services i think that the questions posed give me the impression that the court has a pretty good handle on what happened this was a lengthy litigation this trial judge as you all know you have to make some hard factual credibility cause a seasoned trial judge will know did that this is a completely fact found credibility call made by him regarding this case just south with you pointed out something very important months before the trial when they decided to guarantee the medical charge they were aware that mr mckinley was a fraud surgery that you're asking to be done in two thousand and seventeen you're a fraud for not telling your doctor about that and that's what the court found this knowing that he's a fraud wanted to do what probably most jones act employers do these days thanks to the atlanta sound in case they wanted to avoid the payment potential payment of punitive damages with insurance company money that's what they did and so they did that months in advance of the trial we entered into a stipulation of a negotiated value and then we went and tried the case hard fought by both sides with four k aligning with the pla saying it's one hundred percent all in a process fault and you need this back surgery and you needed that back surgery mr price the court listening to it all knew what had happened price got his surgery right away he was a total fraud and the court found him to be a total fraud he had had back problems for years leading up to his employment he concealed it from the macor ping judge he concealed it from his employer in the process and we enterprise paid those early on but as discovery and you all know the discovery takes time as discovery flows in any advance of trial months before he agrees to pay the hundred fourteen thousand dollars for the surgery we tip put him on notice listen we maybe should not be even paying full price he's a fraud he had a bunch of prior problems and we're not going to pay for this future surgery that because he's a fraud joe and that's exactly what judge will know found these two gentlemen making claims frauds that rick conditions for both of them not related to this minor bump this opportunity to work the system and try to get money and that's what happened so this case is real simple it's fact down the judge made the decision based on the facts there's no law that supports in the in their their attempt to work the system we ended up informing the other side we're not paying any more you shouldn't pay either these guys are for us and that's what judge will hope conclude and i think you both who panel seems to have the the theme of this case which is this was a minor little event the only thing that brings here today is the fully support the main instant cure obligations that they have and end up improperly denying it very serious liability so in that sort of world that that exists when it not yet said he talk about discovery and how long it took for all of this to be developed at the time they needed to be making their decisions was earlier in the process in the trial in front of judge lamell so once those decisions are made and with you or your client openly holding the we embarrassment obligation where does the risk of all this properly fall and my concern is is is this not a lot of guidance in the law on this as to where this ultimately should fall although then there are some general rules or some such as your client if he was responsible the flipside is they have an obligation to pay for all of this unless it's clearly not necessary and that was so hard to say at the time they were making the payments you have any law force other than what you were talking about about how exactly what gives some clarity to how this sort of work out i think the mccourt in law gives some clarity to it because you know in the defense that should have been raised by four k when we brought this to their knowledge months in advance of that the tryout macugen says a that eight employer jones act employer who determines that the employee has withheld material medical information can act reasonably and not pay for that material information without if it's not if the if the condition is the same condition as found in the judge vance and  show causal relationship of the condition and that the medical charges as you as the court raised a reasonable you kate high the most expensive doctor in the world to do it and call it reasonable you kate  can't have a condition that's totally unrelated to the event and make it reasonable so i think it's just an expansion i'm a corporal who would give the coup what's needed in this situation what is critical for the decision made by judge lamell is he made an equitable decision we had paid for all of price his surgery his mate and it's all owing to not some cure because it was all was am i going to do i give the money back to him i don't think that's fair do i give the money back to enterprise not but do i give do i give forte who goes into this with full knowledge that mr mckinley is a wire cheater and a fraud and decides to guarantee a medical charge do i give him the money no these are too sophisticated businesses that deal with these issues all the time they know they should act reasonably it was reasonable that i don't give back the money to enterprise that was paid in the price case and it's reasonable that i don't hear of the four k appellant interest this hundred  fourteen thousand dollars because they went into this eyes wide open they knew exactly what was coming they knew if if mr mckinley prevails they did the safe thing they paid one hundred fourteen which was probably a negotiated lower value and they have voided the putins they did the safe thing but the judge at the district level knew that and what he decided to do is something equitable which the court that's a lot of maritime law allows him to do it was a fair and equitable decision to decide the case just as he did what we hear today is mr mccann we didn't appeal mr price to that zero didn't appeal enterprise who had to pay for mr prices had to pay one hundred fourteen thousand dollars and if the court i have additional time i think i've covered the topic so i need to cover unless one of your honors has a specific  before we did not know any such thing at the time again we had a recommendation from his treating physician whose the pain is entitle to great weight that this was a causally related of injury sanat and as we all know you know we had in one hand the treating physician recommendation on the other hand and i in the recommendation and the treating physicians recommendation is usually given greater weight and that you know another point so when we were making the decision to whether or not to go into the surgery we had every reason to believe that we would possibly still get reimbursed so it wasn't an unreasonable decision it wasn't something that we did in a in a vacuum of information and they sent all the information we had at the time it was a very reasonable decision to make factually and then when you include the jurisprudence which says we have this automatic obligation to do it including guaranteeing the surgery february sixth twenty sixteen this was three months before in a prize money agreed to reimburse us in in those initials closures we included c d the head records from shopping medical center which detailed mr price as part back history so again they had knowledge that this one fellow had you know pigs and issues they reimburse us for that bad surgery so it came time for us to make decision about the kinley again we are very reasonable thinking that we would get reimbursed for that particular circumstances and given that the protection of the rights of the seamen is a paramount importance to add up to acquiring it jones action ploy or to have conducted an investigation into the siemens claims