Is the McCorpen Defense Preserved For Subsequent Employers?

Under the doctrine commonly referred to as the McCorpen defense, a seaman can be denied his rights to maintenance and cure. In order to establish the McCorpen defense, an employer must show that: (1) the claimant intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material to the employer’s decision to hire the claimant; and (3) a connection exists between the withheld information and the injury complained of in the lawsuit.

If a company does not subject the seaman to a medical questionnaire or medical examination when he is hired, it will generally not be successful if it asserts the McCorpen defense. However, The United States Fifth Circuit Court of Appeals identified an exception.

In Meche v. Doucet, a successor company bought a vessel division from a predecessor company in an asset sale, and hired all of the predecessor company’s employees. Sometime after the asset sale, one of the newly acquired seaman was allegedly injured while working for the successor company. He filed a claim for maintenance and cure against the successor company. The successor company discovered that the seaman had a preexisting medical condition with a connection to the injury complained of in the lawsuit, and that he intentionally concealed this condition from the predecessor company when he applied for his job.

The successor company argued that it was entitled to the McCorpen defense because it acquired all of the assets and liabilities of the predecessor company, examined protocols and medical examinations of the predecessor company, and retained all of the predecessor company’s employees without subjecting them to updated medical examination. The seaman argued that the intervening asset sale should render the McCorpen defense inapplicable because the successor company did not itself conduct a pre-employment medical examination.

The Court ruled that the successor company fulfilled the requirements under McCorpen and denied maintenance and cure. The Court stated that an intervening asset sale does not automatically relieve a seaman from the consequences of his or her prior intentional concealment of material medical information. However, the Court did not extend the ruling to a seaman who leaves his or her employer for an entirely unrelated company.

The seamen has a pending request to the U.S. Supreme Court to review the ruling of the U.S. Fifth Circuit.

Meche v. Doucet

Employer’s Lax Investigation into Crew Member’s Maintenance and Cure Claim Ends up Costing Big

If a seaman becomes ill or is injured while in the service of the vessel, then the shipowner owes the seaman maintenance and cure ­– a contractual form of compensation similar to workers’ comp. The employer’s duty encompasses situations where a seaman has a pre-existing medical condition that becomes manifest while working for the vessel. Importantly, courts are in agreement that any doubts as to a shipowner’s responsibility for maintenance and cure are resolved in favor of the seaman.

The Eastern District of Louisiana’s decision in Jefferson v. Baywater Drilling, LLC reaffirms the notion that courts sitting in admiralty will continue to scrutinize an employer’s denial of maintenance and cure benefits.  In this case, the plaintiff, having been on the defendant’s oil rig for about 11 hours, began experiencing a painful skin condition that produced blisters on his feet. It was later determined that he was suffering from a rare skin disorder where the top layer of skin rapidly dies and begins to shed. Once he alerted his supervisor about his condition, it took an additional five hours for Baywater to transfer Jefferson to shore.

Once Baywater’s claims adjuster arrived at the hospital, he began asking Jefferson non-medical questions, but was eventually asked to leave by one of the nurses who felt the adjuster was harassing Jefferson. The adjuster was unable to get a medical authorization from Jefferson.  Baywater also interviewed witnesses and reviewed reports of the incident. As a result of this investigation, Baywater decided not to pay any maintenance and cure based on its conclusion that Jefferson’s condition had actually manifested prior to his arrival on the rig.

The court considered Baywater’s investigation “impermissibly lax” based in large part on its failure to review any medical opinion or administer any test that supported its theory that Jefferson’s illness had manifested prior to arriving on the rig. In effect, the court found that Baywater made a “medical determination without medical evidence.”  For this reason, the court held that Baywater was arbitrary and capricious in denying maintenance and cure to Jefferson, subjecting Baywater to compensatory and punitive damages, as well as attorney’s fees and pre-judgment interest from the date Jefferson had to leave the rig.

Jefferson v. Baywater Drilling, LLC

Jones Act Claim Dismissed on Summary Judgment

Plaintiff worked as a relief captain for Defendant. He maintained that he was injured as a result of an accident aboard Defendant’s vessel, or that Defendant was negligent or provided an unseaworthy vessel. Defendants moved for summary judgment on the grounds that Plaintiff could not establish the necessary elements of his case.

Plaintiff alleged that he was injured while chipping with a needle gun at the instruction of the vessel’s captain. Upon learning that he could not have been injured on the date he alleged because he was not working aboard Defendant’s vessel on that date, he claimed new potential dates of injury. Still, the vessel logs did not show that Plaintiff did any chipping work. Additionally, although Plaintiff testified that the vessel’s captain ordered him to do the work and a tankerman saw him performing the work, the vessel’s captain said he did not order the work and would not have ordered the work for various reasons, and the tankerman said he never saw Plaintiff doing the work in question. No injury was ever reported by Plaintiff to Defendant until the instant suit, and no injury was reported to any medical provider.

In reviewing the facts in a light most favorable to the non-moving party, the Court found that Plaintiff did not create any genuine issues of material fact regarding his claims of negligence, unseaworthiness or maintenance and cure. Based upon Plaintiff’s inconsistent testimony regarding the date of the accident, the lack of corroboration by witnesses, and Plaintiff’s failure to report any injury, the Court held that Plaintiff could not prove that he had any accident or suffered any injury while working aboard Defendant’s vessel. The Court therefore granted Defendant’s Motion for Summary Judgment.

Glaze v. Higman Barge Lines, Inc., 2014 WL 5393355 (E.D. La. 2014).

Maintenance and Cure Not Owed in Case Defended By MBLB

Recently, Will Bland, Beth Bernstein, and paralegal Meredith Foster of Mouledoux, Bland, Legrand & Brackett, LLC, successfully invoked the McCorpen defense for their client, St. June, LLC, resulting in Judge Barbier granting St. June’s motion for summary judgment and dismissing plaintiff’s claims for maintenance and cure with prejudice.  See Eldon P. Foret, Jr. v. St. June, LLC, No. 13-5111 (E.D. LA. 2014).

On January 11, 2011, Eldon Foret sustained injuries to his neck and back while employed as the captain of the M/V ST. JUNE.  Foret filed suit against St. June, LLC on July 18, 2013, asserting claims under the Jones Act, maintenance and cure, as well as punitive damages.  St. June filed a counterclaim on May 14, 2014, seeking reimbursement for all money paid to Foret regarding maintenance and cure and associated legal fees.

St. June’s counterclaim relied on the McCorpen defense.  Specifically, it alleged that Foret had failed to disclose the existence and extent of injuries to his neck and lower back, and that the failure to disclose these facts was material to St. June’s decision to hire Foret.

St. June filed its motion for Summary Judgment before Judge Carl Barbier of the Eastern District on August 26, 2014.

To succeed on the McCorpen defense, an employer must show: (1) The seaman intentionally misrepresented or concealed medical facts; (2) The non-disclosed facts were material to the employer’s decision to hire the seaman; and (3) A causal link exists between the pre-existing injury and the injury incurred during employment.

Whether or not the seaman intentionally misrepresented facts depends on whether or not the employer requests a pre-employment examination.  If the employer requests an examination, the seaman must disclose those medical facts that are plainly desired.  On the other hand, if the employer does not request an examination, the seaman must disclose medical facts that, in the seaman’s own opinion, would be considered important by the ship-owner.

In determining what facts a seaman should consider important to his employer, courts consider the seaman’s employment history.  For instance, an extensive work history over a long period of time familiarizes seamen with what employers expect to uncover regarding their employees’ medical history.  In this case, Foret had worked on shrimp boats for 42 years and acknowledged that several boating companies as well as every oilfield company he had ever worked for had inquired into medical problems with his neck and back.  Further, Foret failed to disclose an injury he sustained to his neck and back on July 2012, or that he was taking pain medication during his employment with St. June.

Regarding materiality, the Fifth Circuit has routinely held that back injuries are precisely the type of information employers consider material in deciding to hire a seaman.  See Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005)see also Jauch v. Nautical Servs., Inc., 470 F.3d 207 (5th Cir. 2006).

Finally, courts have regularly found causal links between pre-existing and post-employment injuries where these injuries arise in the same area of the body.  Brown v. Parker Drilling Offshore, Corp., 410 F.3d 166 (5th Cir. 2005).  Here, the record showed that multiple doctors had treated Foret’s lumbar-spine region years before his employment with St. June.  Thus, the court found a causal link between the pre and post-employment injuries based on their extreme similarities.