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.

Plaintiff Could Not Maintain Maritime Claims Against a Non-Employer and Non-Boat Owner

 A pro se plaintiff was hired by an independent contractor for BP America, Inc., to work as a boat hand, installing, inspecting and maintaining floating booms in the waters of Orange Beach, Alabama.  The plaintiff received forty hours of hazwoper training before going to work.  Three days later, while checking and deploying floating booms, the plaintiff fell overboard.  He returned to the boat and continued working without seeking medical attention.  Nonetheless, his employment was terminated by the independent contractor for being an “unsafe and problem employee.”  Later, the plaintiff filed a suit for negligence under the Jones Act, maintenance and cure, and unseaworthiness.  He filed against BP.

On appeal, the Eleventh Circuit affirmed the district court’s grant of summary judgment to BP.  Employment is an essential element of a Jones Act and maintenance and cure claim.  The plaintiff bore the burden of probing that BP was his employer.  He could not do so.  Among other things, BP had no control over the plaintiff’s work as he was employed by an independent contractor.

The Eleventh Circuit also rejected the plaintiff’s unseaworthiness claim.  Under general maritime law, a shipowner has an absolute duty to furnish a seaworthy ship.  A seaman who is injured because of an unseaworthy condition on a ship has a right of recovery against the owner of the vessel beyond maintenance and cure.  Here, there was no evidence demonstrating that BP owned the boat that the plaintiff fell from, or that there was an unsafe condition from the boat.  The only “evidence” that the plaintiff submitted was a self-serving and conclusory affidavit.  That was not enough.

Smith v. BP America, Inc., No. 12-12031 (11th Cir. Jul. 5, 2013) (unpublished)

Injured Seaman’s Duty to Mitigate His Damages

The employer of a seaman injured while serving the mission of the vessel is required to pay the seaman maintenance (and generally stated as an amount equal to his food and lodging) and cure (his medical expenses) until he has been declared by his treating physician as having reached maximum medical improvement (MMI).  The obligation to pay maintenance and cure is triggered when the seaman becomes ill or injured in the service of the vessel.  It is owed irrespective of whether he is injured due to negligence of the employer or unseaworthiness of the vessel or if he was injured due to the act of some third party.  Further, because seaman have historically been considered “wards of the court,” their right to receive maintenance and cure is closely guarded and the courts will order it paid in all but the most blatant circumstances, such as when a seaman is injured by his own intentional misconduct.  Frankly, it is rare when an employer is able to successfully defend a lawsuit brought by a seaman to recover maintenance and cure.  If it is a close call, the courts invariably will side with the seaman.

However, several federal judges in the Eastern District of Louisiana have recognized that seamen do have reciprocal obligations they must fulfill or risk losing receipt of the benefit.

In Parker v. Atlantic Sounding (heard before Judge Barbier), the seaman injured his hand when it was caught in a line while working on a dredge on the Mississippi River.  He was taken to a doctor, treated, and released to return to light duty.  Parker did return a couple of days later, and was given the job of sitting in the control room of the dredge and sweeping the galley.  He was paid his full wage.  He stayed for half a day and quit without notice, later claiming that he did not think it was safe for him to work because he was on medication, and that the sweeping conflicted with his doctor’s orders.  Atlantic Sounding petitioned the court for a ruling that Parker had forfeited his right to receive maintenance and cure when he walked off the job unannounced.  The court sided with Atlantic.

In his ruling Judge Barbier noted prior decisions which held that if a seaman is able to work and/or is working in spite of the fact that he may still be under a doctor’s care, then the employer should not be required to pay maintenance.  The rationale is based on the idea that the seaman has the duty to mitigate his damages, coupled with the premise that if the seaman if fit enough to work, then there is no reason to award him maintenance for periods when his sustenance is provided by others.

Parker argued that he was unemployed after he left Atlantic, and was not receiving sustenance from others.  Judge Barbier ruled that Parker had forfeited his right to maintenance because he failed to mitigate his losses by voluntarily quitting his job.  If he thought that he could not do the tasks he was assigned, Parker should have brought this to the attention of his supervisor, who could have found tasks compatible with his abilities.  The judge found that Atlantic did what it could to ensure that Parker could afford food and lodging by offering the same pay as before his injury, and accommodating his medical restrictions.  The court also made it clear that Atlantic’s duty to pay cure was not affected when Parker walked off the job, and it was still owed.

In Green v. Florida Marine Transporters, Inc., Judge Zainey was faced with a similar factual scenario.  There, Green claimed he injured his hand while working as a tankerman.  He filed suit and asked for a jury trial.  Green’s doctor released him to return to light duty work.  Florida gave him an office job and his regular pay while convalescing.  Green quit, and Florida moved the court for a ruling that he had forfeited his right to maintenance and cure.

Judge Zainey did not rule on the merits since this was a case to be tried to a jury, the issue would be more appropriately left to the jury to decide.  However, the judge stated that if the evidence shows Green quit the job “because he didn’t feel like working anymore,” then he forfeited his right to maintenance.  Florida also argued that Green forfeited his right to cure because he abandoned the care being provided by his physical therapist.  Again the judge did not rule, preferring to leave the issue to the jury.  But he stated that if Florida “can establish that Green’s failure to pursue the additional therapy compromised his reaching MMI or that by undergoing the additional therapy Green would have mitigated the problems he continues to have with his finger, then perhaps this will form the basis for forfeiting additional cure.”

More recently Judge Zainey denied a seaman maintenance.  In Domjan v. Setton Construction, the employer offered the injured seaman a suitable light duty office job following his surgery.  Domjan declined.  The employer argued that when he declined, he forfeited his right to maintenance.  The case went to trial, and the jury found that the employer offered the appropriate job, and when Domjan rejected it he forfeited his right to maintenance.  Domjan asked the judge to overturn the jury’s decision.  In refusing to do so, Judge Zainey stated that “plaintiff is correct that maintenance is owed until the seaman reaches MMI and does not terminate simply because he becomes medically fit for light duty.  Plaintiff’s maintenance payments were forfeited because the jury made a factual finding that he had been offered a light duty position that he could have taken, but that he declined without medical justification.”  He also noted that the job must be compatible with the seaman’s medical condition, and that the employer cannot absolve itself of its maintenance obligation by forcing the seaman back to work to the detriment of his health.

The lesson for employers to take from these cases is that in the appropriate situation, making light duty job accommodations for the injured employee can be to their benefit.  The employee is engaged in his work, and a positive company environment to which he continues to contribute.  The duty to pay maintenance ceases.  And should the injured employee quit for non-medical reasons, the likelihood is that the duty to pay maintenance will cease.  The offer of a light duty job should be made in writing to the employee, signed and dated by the employer and employee.  If refused, the reasons for refusal should be noted, and the document made part of the employee’s personnel file.

Fifth Circuit: No Right to Restitution for Maintenance and Cure Payments

When Plaintiff was hired, he completed a pre-employment medical questionnaire.  Plaintiff failed to disclose his serious preexisting back problems, affirmatively answering “no” to several inquiries about those problems.  After working for Employer for a few months, Plaintiff allegedly injured his back.  Employer paid maintenance and cure for five years.  After Plaintiff filed suit for additional maintenance and cure, Employer learned through discovery about Plaintiff’s extensive back problems.  Employer won a partial summary judgment on a McCorpen defense, which extinguished liability for maintenance and cure because  Plaintiff’s failure to disclose the prior back problems.

Then, Employer filed a counterclaim against Plaintiff to recover the maintenance and cure payments already made.  The district court issued an opinion awarding Employer restitution for the sums previously paid.

The Fifth Circuit, in a 2-1 opinion, determined that the district court erred by awarding restitution, no matter the egregious facts concerning Plaintiff’s maintenance and cure claim.  In short, restitution is not available even if a seaman obtains maintenance and cure based on fraud.

A maritime employer’s obligation to pay an injured seaman maintenance and cure is an essential part of the employment relationship, whether characterized as contractual or otherwise.  In Still v. Norfolk & Western Railway Co., Justice Black’s opinion for the Court clarified that a worker’s fraud in procuring his employment does not vitiate the employment relationship, allowing him to maintain a suit for damages under the Federal Employers’ Liability Act.  Courts including ours have since recognized that Still’s logic and congressionally rooted paternal policy applies with equal force to seamen.  The McCorpen defense rests, if somewhat uneasily, alongside Still and progeny, permitting an employer to extricate itself from its maintenance obligation by demonstrating that the seaman “intentionally concealed” a material medical condition in obtaining his employment.  Though most courts have accepted McCorpen, Transocean’s novel attempt to invoke the case as an affirmative right of recovery finds virtually no support, and we are not inclined to accede.

The district court’s concern with the egregious facts here is understandable, but the sweeping counterclaim it endorses would mark a significant retreat from our hoary charge to safeguard the well-being of seamen.  Already, even without fraud, an employer may offset any Jones Act damages recovered by the seaman to the extent they duplicate maintenance and cure previously paid.  This, if the employer “show[s] that the damages assessed against it have in fact and in actuality been previously covered.”  Yet we are urged to strike a new balance and allow an employer who establishes a McCorpen defense to automatically recover prior maintenance, without requiring the employer to prove duplication and regardless of the outcome of the primary suit.  In cases where no damages are recovered, or the award is insufficient to offset the seaman’s restitution liability, the employer would gain an affirmative judgment against the seaman.  Although most likely uncollectible, the judgment would stand as a serious impediment to the seaman’s economic recovery, and its threat would have a powerful in terrorem effect in settlement negotiations.

Don’t forget to check out Judge Edith Brown’s dissent, which is well worth the read:

Just because honest seamen are entitled to avoid the hassles of complex workers’ compensation schemes does not mean that seamen who intentionally or willfully conceal prior medical conditions are entitled to the same benefits.  This court recognized as much in McCorpen, and has consistently applied that principle for over fifty years.  This case is therefore distinguishable from Still, in which the Supreme Court held that an employee could recover under the Federal Employers’ Liability Act even if the individual obtained his job by false representations.  . . .  Here, there is no question as to whether Boudreaux is entitled to the benefits of maintenance and cure as a result of his misrepresentations.  He is not and was not, and I would therefore hold that Transocean is entitled to restitution.  There is no reason to reject this general equitable principle in the face of willful and intentional misconduct engaged in on land by a non-maritime employee, simply because, by virtue of that very misconduct, the individual later obtained maritime employment and became unjustly enriched at the expense of his maritime employer.

Boudreaux v. Transocean Deepwater, Inc., — F.3d —- (5th Cir. 2013).