While unloading cargo from the M/V CARIBOU to the Horn Mountain Spar in the Gulf of Mexico as deckhand, the plaintiff allegedly suffered injuries to his knee, left shoulder, cervical spine and lumbar spine. Lawsuits were filed.
The deckhand’s employer filed a motion for partial summary judgment asking the court to dismiss the deckhand’s maintenance and cure claim because (1) discovery revealed the deckhand suffered multiple injuries prior to beginning his employment including two motor vehicle accidents where he hurt his back and shoulder; and (2) the deckhand failed to report these conditions on his pre-employment physical.
A Jones Act/vessel owner has an obligation to provide maintenance and cure for any seaman employee if they suffer injuries while in the service of the vessel. The Jones Act/vessel owner's obligation to provide compensation does not depend on any determination of fault, but rather is treated as an implied term of any contract for maritime employment. However, maintenance and cure will not be owed if the seaman “knowingly or fraudulently concealed” his/her condition from the vessel owner at the time he/she was employed. This is referred to as the McCorpen defense. See McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968).
To successfully assert McCorpen and avoid paying maintenance and cure, a Jones Act/vessel owner must show:
the seaman intentionally misrepresented or concealed his/her medical facts;
the non-disclosed facts were material to the employer’s decision to hire the seaman; and
a connection exists between the withheld information and the injury complained of in the lawsuit.
In an effort to avoid losing maintenance and cure based on his failure to disclose, the deckhand argued that the concealed medical facts were not material to the employer’s decision to hire him, and, even if they were material, he would have been hired regardless. The employer responded by arguing that if it had known of the deckhand’s preexisting medical condition there would have been an additional evaluation to determine whether the deckhand could safely perform the essential functions of the job.
The deckhand responded by pointing out that he did undergo such an examination at the employer's clinic and the clinic found that he could safely perform the work. So, the deckhand maintained that the employer already had the very information it claimed it would have sought. Thus, the deckhand argued that his alleged concealment was not material to the employer’s hiring decision. The deckhand also pointed out that two months after his employment began, he suffered a lumbar strain at work and the employer sent him again to its clinic for examination and evaluation. The deckhand was evaluated and subsequently released to full duty with no limitation. So, the deckhand argued that the employer had knowledge that he had at least some prior issue with his lumbar spine, and the employer continued to employ him and assigned him to the M/V CARIBOU.
In response, the Jones Act employer pointed to testimony from its Vice President of HR/QHSE where the VP stated that he would never have offered the deckhand employment or even asked the company’s medical clinic for their opinion because he didn’t “want to take a risk of a chance of him being able to safely perform the work.”
The court ruled in favor of the Jones Act employer and dismissed the deckhand’s maintenance and cure claim. To support its decision, the court cited the VP’s unequivocal testimony that “[h]ad I known about [his preexisting conditions], I would have never hired him.” Based on this testimony, the court determined that there was no genuine issue of fact as to the materiality of the deckhand’s pre-existing medical condition on the employer’s decision to hire him.
The case citation for this decision is In the Matter of Adriatic Marine, LLC, Civil Action No. 20-1488 (EDLA August 1, 2022). A publicly available copy of the decision is accessible through this link:
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