In the case of McKorpen v. Central Gulf Steamship Corporation, 544 F.3d 396 (5th Cir. 1968) the Fifth Circuit of the United States Court of Appeals established what has now commonly been referred to as the McKorpen Defense. The McKorpen Defense applies to a seaman’s right to cure if he gets injured.
What is Cure and How Does It Differ From Land Based Workers’ Compensation Insurance?
If a seaman gets hurt they are not covered by workers’ compensation insurance. However, under American maritime jurisprudence and Admiralty Law, they are entitled to cure. The definition of cure is that it requires a ship owner to provide medical care, free of charge, to a seaman injured in the service of the ship, until the seaman has reached “maximum medical cure.” The concept of “maximum medical cure” is more extensive than the concept “maximum medical improvement.” The obligation to “cure” a seaman includes the obligation to provide him with medications and medical devices which improve his ability to function, even if they don’t “improve” his actual condition. They may include long term treatments that permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications. The duty of the maritime employer to pay cure is regardless of fault. In other words, if the seaman is 100% at fault for his injuries, he is still owed cure. Well…..that sounds like workers compensation….right? Not really and here are some differences: (1) if you were working at Kroger and you got hurt in the “course and scope of employment” you would receive medical care. If you did not receive medical care, you could sue the workers’ compensation carrier for bad faith (or beach of duty of good faith as it is called in some jurisdictions) and, if successful, recover, not only the unpaid medical but also mental anguish, injury to your credit damages and, in some states, punitive/exemplary damages. This is not true for a maritime employer failing to pay your cure in that you only have the right to sue for the amount of medical care they should have paid and you might recover attorneys’ fees. Thus, there is no legal “hammer” to hold over the maritime employer to do the right thing like there is in a land based injury; and (2) if the hypothetical Kroger worker hurt his back he would get medical care even if he had back injuries in the past and did not tell Kroger that in his job application. This is not true in the maritime world due to the McKorpen Defense for an injured mariner.
Case Law Analysis
McCorpen’s facts were fairly harmless. During Mr. McCorpen’s 20 years as a merchant mariner, he had never had lost any work from illnesses. However, he had a 15 year history of diabetes. He had been working as a crew member on the SS Green Lake and had underwent and passed a physical exam to sign on as a chief cook. At the physical exam, he was required to fill out a ‘Physical Examination Report & Record’. On the Report, he was asked questions and responded in the following manner:
(1) Question: Injuries:
Answer:back strain 1961
Also, Mr. McCorpen affixed his signature to a statement reading, ‘I have never been injured, sick, or otherwise disabled except as stated above.’ At no time did he reveal to the examining doctor, or his staff, that he was a diabetic. He was approved for employment and sailed with the SS Green Lake from Galveston, Texas to New Jersey and then to the Persian Gulf. Near Iran, the heat in the galley where McCorpen worked, became extreme and he began seeing double. He was treated twice by a doctor in India and at the end of the voyage was treated at a public health facility in Galveston. The trial judge found that he was hospitalized for diabetes control with a diagnosis of diabetes mellitus and ‘chronic anemia, etiology undetermined.’ The McCorpen court first discussed the federal maritime law regarding the type of obligation an employer has to a seaman under federal maritime law to pay cure:
Maintenance and cure is a contractual form of compensation given by general maritime law to a seaman who falls ill while in the service of his vessel. The ship owner’s obligation is deep-rooted in maritime law and is an incident or implied term of a contract for maritime employment. Maintenance may be awarded by courts even where the seaman has suffered from an illness pre-existing his employment, but there is a general principle that it will be denied where he knowingly or fraudulently conceals his illness from the ship owner. See Evans v. Blidberg Rothchild Co., 4th Cir.1967, 382 F.2d 637; Burkert v. Weyerhaeuser Steamship Co., 9th Cir.1965, 350 F.2d 826; Annot., 3 A.L.R.3d 1082 (1965). (Emphasis Supplied). McCorpen at 548.
It is important that the reader of this paper understand the duty to pay cure is a contractual duty. Hence, regardless of whether the seaman caused his injury or illness, the “contractual nature’ of the relationship between the employer and the employee is the reason for payment. Recognizing that the duty to pay is contractual, the McCorpen court began to dissect when this contractual duty was negated.
In cases involving a pre-existing illness or other disability, the courts have made a distinction between nondisclosure and concealment. Where the ship owner does not require a pre-employment medical examination or interview, the rule is that a seaman must disclose a past illness or injury only when in his own opinion the ship owner would consider it a matter of importance. If the ship owner is unable to persuade the court or jury that the seaman could reasonably be expected to have considered his medical history a matter of importance, he will be liable for maintenance. He will be liable if it is found that there existed reasonable grounds for the seaman’s good-faith belief that he was fit for duty. (Citations Omitted). On the other hand, where the ship owner requires a seaman to submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure. (Citations Omitted). Of course, the defense that a seaman knowingly concealed material medical information will not prevail unless there is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage. (Citation Omitted). McCorpen at 548-9.
Then the McCorpen court addressed some past exceptions to the denial of maintenance such as (1) where the seaman was “so ignorant” that it could not be said that they “knowingly” concealed medical facts or (2) where the seaman barely understood English and could not be held responsible for a misrepresentation or failure to disclose simply because they did not understand the questions.
Post-McCorpen Decisions and Differences in the Federal Circuits
Since McCorpen, there have been numerous cases involving different fact situations resulting in different outcomes. There are a total of eleven federal circuits in the United States Federal Court System. As a geographical matter, the circuits that deal with maritime/admiralty issues the most often are the Second Circuit (New York, Connecticut and Vermont), the Third Circuit (New Jersey, Delaware and Pennsylvania), Fifth Circuit (Texas, Louisiana and Mississippi), the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada and Oregon) and the Eleventh Circuit (Florida, Georgia and Alabama). This is not to say that the other remaining Circuits do not address and render decisions regarding the Jones Act, Admiralty/Maritime law as they, in fact, do; it’s just that these Circuits are not as prominent in Admiralty Law and the decisions are not as numerous in the area of Admiralty/Maritime Law.
It was, in fact, an Eighth Circuit opinion that summarized the law McCorpen throughout the circuits. In Wactor v. Spartan Transportation Corporation, 27 F. 3rd 347 (8th Cir. 1972), the Eight Circuit adopted the McCorpen decision within the Eighth Circuit and pointed out that the Fourth Circuit, Seventh Circuit and Ninth Circuits have also adopted McCorpen in their Circuits. Wactor at 352.
To date, the only circuit not to adopt the harshness of McCorpen is the Second Circuit. In Sammon v. Central Gulf S.S. Corp., 442 F.2d 1028, 1971 A.M.C. 1113 (2d Cir.), cert. denied, 404 U.S. 881, 92 S. Ct. 202, 30 L. Ed. 2d 162 (1971), it was held that a denial of cure can only occur if it is fraudulent and stated that “it is fraudulent only if the seaman knows or reasonably should know that the concealed condition is relevant.”
The current law as developed over the years since McCorpen, except in the Second Circuit as discussed in Sammon, is that an injured seaman can be deprived cure if:
(1) the seaman intentionally misrepresented or concealed medical facts;
(2) that the undisclosed facts were material to the maritime employer’s decision to hire the seaman; and
(3) that a connection exists between the withheld information and the injury complained of in the litigation.
Can a McCorpen Finding Also Affect a Jones Act Claim?
Unfortunately, at least in the Fifth Circuit, it does appear that a Jones Act claim can be affected by a McCorpen finding by the trial judge or jury. In a fairly recent case styled Johnson v. Cenac Towing, 544 F.3d 296 (5th Cir. September 24, 2008), the Fifth Circuit addressed the following:
Leroy Johnson sustained injuries while working as a seaman for Cenac Towing, Inc. He sued Cenac in federal court for negligence under the Jones Act, unseaworthiness, and maintenance and cure benefits. Following a bench trial, the district court denied maintenance and cure because Johnson willfully concealed his preexisting physical problems from Cenac, but the court awarded him damages under the Jones Act and Cenac appealed. Johnson’s answers on his job applications and questionnaires were not truthful. Before he applied to work for Cenac, he had been twice injured while working for other offshore companies. In 1994, Johnson injured his neck and back in an on-the-job accident, which left him disabled for at least ten months. He underwent neck surgery almost a year later as a result of the accident. In 2001, Johnson injured his back again in an on-the-job accident and was disabled for about thirteen months. He received steroid injections to treat his back injury and experienced other ongoing urological problems as a result of the accident. After each accident, Johnson obtained compensation benefits, sued his employer, and collected damages. He intentionally concealed all of these prior accidents, injuries, and claims from Cenac during the hiring process. The doctor who administered Johnson’s two physical examinations on behalf of Cenac stated that had he known of Johnson’s prior work-related accidents, he would not have approved him for employment because of the “possibility of further endangering himself in any kind of way … in this case his neck and his back and to try to protect others around him.”
On December 14, 2005, Johnson injured his back again while working as a tankerman aboard a Cenac vessel that was towing barges near Mobile, Alabama. Johnson and co-worker Louis Celestine were carrying a 175-pound cross-over hose aboard one of the barges when Celestine tripped and dropped his part of the load. Suddenly bearing a heavier weight, Johnson exclaimed that he had hurt his back. He immediately reported the accident and his injury to the crew.
For several months, Johnson was treated for low back pain and urological problems. The district court found that these injuries resulted from an aggravation of Johnson’s pre-existing back condition stemming from his 2001 accident. Johnson incurred $38,095.80 in medical expenses. Some of the expenses inexplicably were paid by the Blue Cross Blue Shield group health insurance plan that Cenac offers to cover only employees’ non-work-related injuries. Cenac pays one hundred percent of its employees’ insurance premiums for the plan.
The Cenac case is a prime example of the old adage that ‘bad facts make bad law’. It is quite obvious that from reading the facts set forth above that Mr. Johnson was less (very far less) than honest in disclosing his prior medical problems. It is well accepted that the Fifth Circuit is very conservative when it comes to protecting the rights of injured seaman; and, with the facts of the Cenac case presented to them, it gave them the perfect opportunity to extend the legal boundaries of their McCorpen Defense outside the legal confines of maintenance and cure to invade into the time honored and court protected rights of seaman under the Jones Act; and that is exactly what happened. Cenac being “The Perfect storm” for the Fifth Circuit, most of its full opinion is worth reading. The pertinent parts of the Courts’ analysis are set forth below:
Although the McCorpen rule is not applicable to a Jones Act negligence claim, contributory negligence is an affirmative defense that diminishes recovery in proportion to the seaman’s fault. 45 U.S.C. § 53; see Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 127 S.Ct. 799, 802, 166 L.Ed.2d 638 (2007). To establish that a seaman is contributorily negligent, an employer must prove negligence and causation. See Sorrell, 127 S.Ct. at 807; see also Gautreaux, 107 F.3d at 338.
A seaman is negligent if he fails to act with ordinary prudence under the circumstances. See Gautreaux, 107 F.3d at 339. “The circumstances of a seaman’s employment include not only his reliance on his employer to provide a safe work environment but also his own experience, training, or education. The reasonable person standard, therefore, [in] a Jones Act negligence action becomes one of the reasonable seaman in like circumstances.” Id. (emphasis in original). The standard of causation in Jones Act cases is not demanding.(Footnote Omitted) See, e.g., Gautreaux, 107 F.3d at 335 (“[T]he Supreme Court [has] used the term ‘slightest’ to describe the reduced standard of causation between the employer’s negligence and the employee’s injury in FELA § 51 cases.”). To establish causation, an employer must show that a seaman’s negligence “played any part, even the slightest, in producing the injury.” Chisholm v. Sabine Towing & Transp. Co., Inc., 679 F.2d 60, 62 (5th Cir.1982) (citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)). See also Sorrell, 127 S.Ct. at 802 (holding that the same causation standard applies to employer negligence and employee contributory negligence in FELA cases). Even under the Jones Act, however, a party must establish more than mere “but for” causation. See Gavagan v. United States, 955 F.2d 1016, 1019-20 (5th Cir.1992) (“The negligence must be a ‘legal cause’ of the injury.”).
The district court held that Johnson was not contributorily negligent for willfully concealing his previous injuries during Cenac’s employment application process. The court cited Brown v. Parker Drilling Offshore Corp., supra, as the Fifth Circuit’s confirmation “that the existence of the McCorpen defense does not automatically taint a Jones Act claim.” The court then rejected Cenac’s “argument that if not for Johnson’s misrepresentations, this accident would not have happened.” It found that the “condition of Johnson’s back and neck did not contribute to causing the accident,” and the fact that Johnson sustained on-the-job injuries three years before his December 2005 accident did not make him contributorily negligent.
In a bench tried admiralty case, a district court’s findings concerning negligence and causation are findings of fact reviewable by this court only for clear error. See Gavagan, 955 F.2d at 1019. We entertain a strong presumption that the court’s findings must be sustained even though this court might have weighed the evidence differently. This said, the court’s decision on contributory negligence, which is fully paraphrased above, is hard to square with its recitation of facts elsewhere in the opinion. The district court found that Johnson’s low-back pain caused by the 2005 accident was “an aggravation of a pre-existing back condition stemming from his 2001 maritime accident.” Both injuries, as the court noted, affected his L5-S1 intervertebral disc. Going further, in its discussion of the McCorpen defense, the court found a clear connection, a “causal link,” between Johnson’s pre-employment misrepresentations to Cenac and his current injury.
It is likely true, as the court found, that Johnson’s weakened back did not cause Celestine to drop the 175-pound hose they were both carrying. But it also seems likely that Johnson would never have been employed by Cenac had he revealed the previous injuries, and, having misrepresented himself onto the payroll, he set himself up for the sort of aggravating injury found by the district court. Both this court and the Supreme Court have previously considered the contributory negligence ramifications of pre-employment deception. In Still, the Supreme Court reversed and remanded for trial after rejecting the proposition that a concealed pre-employment physical defect bars FELA relief as a matter of law. Still, 368 U.S. at 46, 82 S.Ct. at 154-55. Nevertheless, the Court noted the relevance, in appropriate circumstances, of such a pre-existing condition to ascertaining whether the injury complained of was caused by the railroad’s negligence “in whole or in part” by tending to show either that the worker was not injured by the railroad at all, if injured, the railroad was not responsible for the full extent of the injury, or that damages should be diminished by the jury for contributory negligence. Still, 368 U.S. at 46 n. 14, 82 S.Ct. at 154 n. 14. Similarly, in Savoie v. Otto Candies, Inc., 692 F.2d 363, 372 (5th Cir.1982), this court upheld a finding of contributory negligence on the part of a seaman who knowingly exposes himself to conditions of employment while aware of an illness or disability which makes those conditions unsafe to him, or where a seaman has the possibility of securing relief from unsafe conditions by informing his superiors of them, but continues to work without doing so. See also Gavagan v. United States, 955 F.2d 1016 (5th Cir.1992) (upholding one hundred percent contributory negligence of seaman who concealed from his prospective maritime employer the limited use of his hand due to surgery and proceeded to re-injure it while trying to open a valve on a tanker).
From these cases, it appears that contributory negligence may be found where a seaman has concealed material information about a pre-existing injury or physical condition from his employer; exposes his body to a risk of re-injury or aggravation of the condition; and then suffers re-injury or aggravation injury. In this case, we are unsure whether the court fully analyzed the potential for contributory negligence, because of the tension between its findings of (a) no causal connection between Johnson’s employment misrepresentations and the accident, and (b) the “causal link” between the misrepresentations and Johnson’s injury…… We do not instruct how the court should ultimately rule on whether Cenac has proved Johnson’s causative contributory negligence in deliberately exposing himself to heavy labor with a weakened back, but we must remand for the court to reevaluate its findings on this issue. (Emphasis Supplied). Cenac at 303-5.
So, we are now faced, at least in the Fifth Circuit, with the reality that if you are not truthful with your prior injuries and/or illnesses on a maritime job application and you get hurt, you may be denied (1) maintenance and cure and (2) be held negligent since, basically the argument goes, you should not have put yourself in that working condition. This result would leave an injured seaman without any remedy whatsoever and completely at the mercy of the insurance company for the maritime employer or the maritime employer directly.
A Rock and a Hard Place
The seaman’s dilemma: If the seaman has had an injury before in his life does he tell the truth on the job application and risk not getting the job or does he not disclose it and risk not receiving cure if he gets hurt on the job or, even worse, being held 100% comparatively negligent thereby defeating even a Jones Act claim?
Since McCorpen almost all maritime employers have been ‘chomping at the bit’ to get out of paying cure on the basis that the seaman failed to disclose some medical fact or, on the other hand, misrepresented themselves medically in a job application or pre-job medical physical. You can bet the house that, after Cenac, they will also be trying to use it to defeat even a Jones Act claim.
To me, the answer is clear that you should always be honest. The question is…..what is the question? If they ask have you ever had back surgery and you have, then you should say so. If they ask have you ever had back pain, this is a little different. Of course, everyone has had back or neck pain sometime in their life. However, if you saw a doctor because of it, you may want to disclose this aspect.There are many different job applications and some do not ask the relevant questions and some do.
One of the cases, Gordon & Elias, L.L.P. handled involved a mariner that got the job through a staffing company. Due to being “hired” in this fashion, the seaman actually by-passed the normal hiring process of the offshore jack-up barge company. The staffing company did not have any questions regarding past medical issues. The questions were solely framed to his licensure and past maritime experience. In fact, the seaman had a prior laminectomy at the L5/S1 level. The per-job physical doctor made no reference to the prior surgery. The seaman, while on the job, actually fell of the rig 68 feet into the Gulf of Mexico and lived. He injured his back in the fall and hired us to represent him. The employer, in the discovery phase of the litigation, asked about prior medical and he truthfully responded. At that moment, the jack-up barge company, ceased paying for any medical care. We successfully argued (1) he was not asked on any job application about prior medical and (2) the scar from the surgery on the seaman’s back was readily visible and the pre-employment doctor either (a) should have known about and felt he was ‘fit for duty’ or (b) should have seen it and did not and therefore was remiss in his physical examination and that ‘shoddy work’ should not be held against the seaman.
Also, it may be wise, when job hunting, to make a Curriculum Vitae (CV a/k/a resume) and place in it any past medical issues. Make sure the CV is made a part of your permanent employment file and, this way, if you do get hurt, your counsel could easily argue that the employer “had notice” of the past problem and defeat any McCorpen like issues. Finally, I have advised some seaman that they should ask their doctor to prescribe a Functional Capacity Evaluation (FCE) test. It is a test that was designed mainly by Liberty Mutual Insurance Company in the 1980s and tests the limitations, if any, that exist in a person. It tests lifting capabilities and limitations, walking, squatting, crawling, stair-stepping, standing, crouching, bending and many other facets. It even has a built-in test to determine if the person is faking. It basically was designed to be utilized in litigation for the defense as a way to detect over-exaggeration of symptoms and/or malingering. Certainly, armed with an FCE that clears you being ‘fit-for-duty’, it would be quite hard for a doctor or company to reject you as ‘not fit-for duty’.
We Wish You Calm Seas
Written and Copyrighted by Steve Gordon and R. Todd Elias