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February 16, 2022 Feature

Maintenance and Cure: The Use of and Pitfalls of the Intentional Concealment McCorpen Defense

By Douglas W. Truxillo
mnbb / iStock/Getty Images Plus via Getty Images

mnbb / iStock/Getty Images Plus via Getty Images

A seaman who becomes ill or injured while in the service of the vessel is entitled to receive from his employer the payment of “maintenance and cure” during the duration of his medical treatment.

In maritime employment cases, a seaman who becomes ill or injured while in the service of the vessel is entitled to receive from his employer the payment of “maintenance and cure” during the duration of his medical treatment until the seaman reaches maximum “cure” (maximum medical improvement), regardless of any residual disability from the injury. Maintenance and cure is similar to a worker’s compensation scheme in that the obligation to pay is not based on anyone’s fault or negligence in causing the injury or illness and is considered “quasi-contractual” as part of the terms of a seaman’s employment on the vessel. However, it is not intended to provide “compensation” for any residual long-term disability that the seaman may have from the illness or injury. The seaman’s employer is obligated to make a daily payment for room and board (considered the maintenance rate) to the injured seaman during the period of his medical treatment for the injury, as well as pay for all medical costs related to his treatment up to the date that the seaman reaches the point that further medical treatment will no longer improve or “cure” his condition. The obligation to pay any maintenance and cure ends when medical treatment can no longer improve the condition.

It is also important to note that maintenance and cure are independent of tort law or any tort claim the seaman may have against his employer. The fact that the seaman’s own negligence may have caused or contributed to his injury does not diminish the amount he receives as maintenance, nor does it reduce the full payment of the medical expenses connected with the seaman’s treatment to the point of maximum cure. Furthermore, a maritime employer who arbitrarily or capriciously fails to pay a seaman maintenance and cure can also be liable for compensatory damages caused by the lack of providing medical treatment as well as punitive damages and attorney’s fees for the seaman who brings a claim for recovery of the unpaid maintenance and cure.

One of the few defenses to maintenance and cure obligations is under the case of McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir.1968), cert. denied, 393 U.S. 894, 89 S.Ct. 223, 21 L.Ed.2d 175 (1968), where the Court held that a seaman is barred from receiving maintenance and cure if he “knowingly fail[s] to disclose a pre-existing physical disability during his pre-employment physical examination” or if the seaman intentionally or willfully conceals from his employer a pre-existing medical condition and that condition is related or connected to his present illness or injury. The concealment or misrepresentation must be material to the employer’s decision to hire or continue to employ the seaman.

However, there are some pitfalls in asserting a McCorpen defense. First is the potential for punitive damages for failure to pay if it turns out to be unproven. Another pitfall is that the McCorpen defense does not preclude the seaman from pursuing his employer in tort under the Jones Act or general maritime law if his illness or injury was due to an unseaworthy condition of the vessel or the negligence of the employer or crewmate. These tort damages can include awards for loss of wages, pain, and suffering as well as for all medical treatment expenses incurred even beyond maximum cure. However, these tort damages, including recovery of medical costs, can be reduced by the percentage of the seaman’s comparative negligence. In contrast, the seaman’s comparative negligence cannot reduce the medical expenses paid under the maintenance and cure obligation. Beware that concealment of a prior medical condition rendering the seaman unfit precludes payment of maintenance and cure, but concealment may only serve as contributory negligence to reduce his recovery for medical expenses in tort.

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By Douglas W. Truxillo

Douglas W. Truxillo is a maritime attorney with the Onebane Law Firm in Lafayette, Louisiana, with over 40 years of litigation experience defending maritime employers in Jones Act seaman claims in the shipping, diving, and offshore industries. Presently, Douglas is serving as the Chair-Elect for the ABA Admiralty & Maritime Law Committee for 2021-2022