Legal: Seaman's Failure To Disclose Prior Injuries Forfeits Right To Maintenance & Cure Benefits
Maintenance and Cure is the obligation of a ship owner who employs seamen to care for them in the event that they are injured or become ill during their service to the vessel. This duty can be traced back to medieval maritime law. What is maintenance and cure? Maintenance is the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of his vessel. Cure is the right to necessary medical services. The duty of the Jones Act employer to pay maintenance and cure is triggered when the seaman falls ill or is injured regardless of fault. A claim for maintenance and cure may be asserted by anyone who is a Jones Act seaman. To be eligible the seaman must be acting in the service of his vessel at the time of the illness or injury. "In the service of the vessel" is liberally construed to include the period of time that the seaman is generally answerable to the call of duty. The injury may occur on shore or during recreation, and may even involve some misconduct on the part of the seaman. If the seaman if off duty and not answerable to the call of his employer, recovery will be denied.
Payment of maintenance and cure is to continue until the seaman reaches the point of "maximum cure." The duty covers the payment of a subsistence allowance and reimbursement for medical expenses. It is the duty of the employer to take reasonable steps to insure that the seaman receives proper care and treatment. The U.S. Court of Appeal for the Fifth Circuit has noted that over the last century "maintenance and cure," which originally had the ship owner pay only for room and board comparable to what the seaman had at sea, has grown to cover his actual or at least reasonable expenses incurred while recovering from his injury. A seaman has reached maximum cure if his condition is not expected to improve further with additional treatment, regardless of whether or not he remains disabled and unable to return to work as a seaman. A seaman is obligated to mitigate his medical expenses; however the seaman's employer has the burden of proving that the extent of medical costs for treatment by a seaman has been excessive or unnecessary. At the point of maximum cure, the vessel and her owners are no longer responsible for maintenance or cure.
The employer's duty to pay for maintenance and cure exists without regard to fault. Negligence on the part of the seamen will not prevent his recovery of maintenance and cure. A case out of New York allowed a seaman to recover for injuries sustained when he jumped out of a window of a room occupied by a prostitute. It may also be awarded even though the seaman has suffered from a preexisting condition, such as a heart condition or a prior illness that reoccurs during the seaman's employment. This right may be forfeited if he fails to disclose or misrepresents material facts when asked in an employment application or interview. Material facts would be those that an employer considers to be of key importance in formulating its decision whether or not to hire someone.
The forfeiture of maintenance and cure is an affirmative defense and requires the employer to establish three things. First, the seaman must have intentionally misrepresented or concealed information concerning a prior injury or condition. Second, the information must have been material to the employer's decision to hire the seaman. And, third, there must be a connection between the non-disclosed injury and the condition complained of in the lawsuit at hand. One case has held that where the seaman is required to submit to a pre-hiring medical exam or interviews and he intentionally misrepresents or conceals material medical facts, and it is clear that the employer desired disclosure, the seaman will forfeit his right to maintenance and cure. A key factor to remember is that the concealment or misrepresentation must be material to the employer's decision to hire the seaman and must be connected to the injury sustained.
In a recent Louisiana case, a seaman sustained an injury to his back and shoulder while working as a deckhand aboard a tug which was moving barges in the Mississippi River. The deckhand was taken ashore and treated at a local hospital for his injuries. He subsequently contacted his employer, McKinney Towing, and was sent to a medical clinic for further treatment. The deckhand then filed suit against McKinney Towing seeking, among other damages, maintence and cure.
The deckhand had originally worked for McKinney Towing until 1989 when he left to seek other employment and took a position with C & D Towing working the grain elevator. At the same time he was also employed by Progressive Barge Line as a deckhand. In 1990 the deckhand left C & D Towing and Progressive after pulling a muscle in his right shoulder while lifting wires on a rigging. Next, he went to work for DRD Towing. In 1992, while working for DRD Towing he slipped and fell on his back injuring his wrist, back and neck. As a result of this injury, plaintiff saw Dr. Kenneth Adatto who performed surgery on the broken wrist and treated the ruptured discs in his back. Dr. Adatto continued to treat the plaintiff for his injuries until the end of 1994.
In 1995 plaintiff was rehired by McKinney Towing as a deckhand. After several months the deckhand was injured while working on a tug. After receiving treatment from the hospital, plaintiff again went to see Dr. Adatto for this "new" injury. During the trial of this case, the medical records of the deckhand from the 1992 injury were introduced into evidence and indicated that the deckhand suffered from total permanent spinal disability and needed back surgery. During the trial of the present case, Dr. Adatto testified that in 1993 he had placed restrictions on the type of work that the deckhand could perform.
The deckhand testified that he was out of work from the time of the accident in 1992 until he was rehired by McKinney Towing. During that time plaintiff had received $112,500 in maintenance and cure from DRD Towing. In his employment application he failed to list DRD Towing as a former employer. A representative for McKinney Towing testified that it was standard procedure to get references from former employers and that if the deckhand would have listed the company, they would have contacted it. Furthermore, during the interview of the deckhand, he failed to mention anything about his back injury. The representative for McKinney Towing further testified that they would not have hired the plaintiff for the position of deckhand if the back injury would have been disclosed. The deckhand admitted that he lied to McKinney on the application and to the doctor conducting the pre-employment physical, because he knew that they would not hire him as a deckhand if they knew about his back problems. Ultimately Dr. Adatto testified that the injury plaintiff suffered in 1995 was an aggravation of a preexisting condition caused by the 1992 accident. The court also found that the current injury was related to the injury that the seaman concealed from his employer. Therefore, the seaman's right to maintenance and cure was denied!
There is a general theme among the cases where maintenance and cure have been denied. The courts will look for a history of prior injury or illness, such as ruptured discs, surgeries or persistent medical conditions which would cause the seaman to be unfit for the position for which he is applying. There also needs to be some sort of pre-hiring medical examination or questionnaire during the interview process which solicits information regarding past medical history. The seaman must fraudulently conceal or misrepresent information of the past injury or illness to the employer and/or medical examiner. Generally, the reason for the concealment is irrelevant, as long as the concealment or misrepresentation is material to the employer's decision whether or not to hire the seaman. And finally, the injury for which he is seeking maintenance and cure must be related to the injury or illness that was concealed from the employer. However, if the employer later discovers that the seaman's condition precluded him from performing his duties and still kept him on, then the employer is obligated to pay maintenance and cure. Thoroughness in the application and hiring process is essential to recruiting healthy employees. It is important to ask the right questions and follow up by checking references and contacting former employers.
About the Authors
James Nader is a partner and Joseph A. Poblick is an associate with the law firm of Lobman, Carnahan, Batt, Angelle & Nader in New Orleans, La. Mr. Nader's trial practice over the last eighteen years has included Admiralty and Maritime Law, an area in which he is an adjunct professor at Tulane University. Mr. Poblick's primary practice areas include insurance defense, general civil litigation and medical malpractice. For more information on the firm, please see it's Website at www.lcba-law.com, or contact them at 400 Poydras St., Suite 2300, New Orleans, LA 70130, phone (504) 586-9292.**
**This article is for general information and educational purposes only, and should not be construed as legal advice. The authors are available to discuss any specific questions or concerns regarding any issues related to this article.
