A McCorpen Defense Has Only Three Elements

In an unpublished decision, the Fifth Circuit affirmed a district court’s denial of maintenance and cure benefits, and punitive damages, against a claimant’s former employer.  The facts demonstrated that the claimant underwent a hip replacement surgery prior to his employment, and that he was on prescription pain medicines when he under went a pre-employment physical.  The claimant never disclosed this injury to his employer.

Maintenance and cure requires a vessel owner to provide compensation and medical care to an injured seaman, “even if the seaman’s injury stems from a pre-existing illness or condition, unless, the seaman knowingly concealed this condition from his employer when he was hired.”  If there was concealment, an employer may lodge a McCorpen defense.  McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968).  Such a defense applies “when an employer subjects a seaman to a medical examination as part of the hiring process and the vessel owner can prove that the seaman: (1) intentionally misrepresented or concealed pertinent medical facts; (2) the non-disclosed facts were material to the company’s decision to hire the claimant; and (3) there was a causal link between the concealed pre-existing injury and the employment injury.”

In his appeal, the claimant seized upon Jauch v. Nautical Servs., Inc., 470 F.3d 207 (5th Cir. 2006) to argue that the Fifth Circuit required an additional McCorpen defense element: “[i]f a vessel owner would have employed the seaman even had the requested disclosure been made, concealment will not bar the seaman’s recovery of maintenance and cure.”  The Fifth Circuit denied this argument, stating that the McCorpen defense has only three elements, and that the quoted language from Jauch merely refers to the second prong of the McCorpen defense.  Finally, the court concluded that the employer successfully established a McCorpen defense because the claimant misrepresented or concealed his hip replacement injury, a fact that was material to the employer’s decision whether to hire the claimant, and that the hip replacement was connected to the workplace injury.

Atlantic Sounding Co., Inc., No. 10-30357, slip op. (5th Cir. Nov. 23, 2010).