Seaman Rousse injured his back while performing his duties as a deckhand on a United Tugs vessel in 2014. His injuries caused him to have two lumbar spine surgeries. United Tugs paid his maintenance and cure, covering his medical expenses. However, three years later, in 2017, United was alerted that Rousse had significant back injuries before he started working on the vessel. He failed to disclose his prior medical treatments during the hiring process. As a result, United sought restitution of the paid compensation. The district court ruled in favor of United, holding that Rousse had forfeited his entitlement to receive maintenance and cure because he concealed that he had suffered back injuries before employment. Rousse appealed.
A duty for maintenance and cure means that the vessel owner must “provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis & Clark Marine Inc., 531 U.S. 438, 441 (2001). However, this duty is not absolute. When a seaman intentionally conceals or fails to disclose past illness when required by an employer, the employer’s obligation to pay maintenance and cure is eliminated. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d (5th Cir. 1968). This exception rule is called the McCorpen defense. The U.S. Supreme Court has neither adopted nor rejected the McCorpen defense, resulting in a split among the federal circuit regarding what non-disclosures could bar the employee from receiving benefits. The Louisiana Fourth Circuit found McCorpen persuasive and decided to follow McCorpen in this maritime lawsuit.
To establish a McCorpen defense, the shipowner or the employer must prove three elements: (1) the seaman intentionally misrepresented or concealed facts; (2) the omitted facts were material to the employer’s hiring decision; and (3) a causal connection between the prior injury or ailment and the present injury in the complaint. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 548 (5th Cir.1968). Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 174 (5th Cir. 2005).
The appeals court examined if Rousse intentionally concealed his pre-existing conditions to determine if the district court decision was correct. In Brown, the U.S. Fifth Circuit held that subjective intent is unnecessary for this element, meaning it doesn’t matter if the worker intends to withhold the information. As long as he has been asked to reveal it, but he failed to do so, this element is satisfied.
Second, the appeals court examines the element of materiality. What employers ask in the medical questionnaire must rationally relate to the worker’s ability to perform his duties. Had Rousse disclosed his prior injuries, United would have required him to undergo further testing and evaluation to decide whether to hire him on the deckhand. The materiality element was met in Rousse’s case.
Last, the appeals court turned to the casual connection element. Even though Rousse’s old and new injuries to the lower back are not similar, they were to the same body part. His pre-existing back symptoms made him more susceptible to future similar injuries. Had he been truthful to the medical inquiry, the employer would give him more suitable job assignments, which would not lead to another injury. The causal connection issue was found by the appellate court here as well. The Lousiana Fourth Circuit dismissed Rousse’s claims.
United Tugs did not advise its worker about what a failure to disclose the medical conditions would mean for their ongoing employment. Rousse did not reveal his susceptibility to further injuries until it was too late. Feeling that you have no current illness and downplaying your medical history to gain an edge in the job applications may eventually backfire on you. Suppose you think the circumstances of your workplace injury might enable you to file a workers’ compensation claim or take other legal action. In that case, discussing your situation (and your options) with a lawyer might make sense.
Additional Sources: Jordy Rousse Versus United Tugs, Inc.
Written by Berniard Law Firm Blog Writer: Yuwei Zhang
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