United States District Court Judge Lance Africk recently addressed an interesting timing issue in connection with an employer’s McCorpen defense.  Plaintiff, Danilo Peralta, sustained the underlying injury to his knee while employed as a Jones Act seaman with Epic Diving & Marine Services, LLC (“Epic”).  Approximately two months later, plaintiff brought negligence and unseaworthiness claims against Epic and also alleged entitlement to maintenance and cure payments.

The parties did not dispute that Epic hired plaintiff on June 9, 2008.  Two days after his hiring, plaintiff underwent a medical examination during which he completed a general physical form.  In response to the form’s inquiry whether he ever sustained any knee or leg injuries and whether he had ever undergone any operations, plaintiff responded in the negative.

In response to plaintiff’s claim for maintenance and cure, Epic moved for partial summary judgment based upon McCorpen v. Central Gulf S.S. Co., 396 F.2d 547 (5th Cir. 1968).  Epic argued that it did not owe maintenance and cure because plaintiff failed to disclose a 2001 knee injury that resulted in surgery.  Plaintiff argued that he could not have concealed his medical history to obtain employment with Epic because the medical exam took place two days after he was hired.  Further, because he was not required to submit to a pre-employment physical, his medical history could not have been material to Epic’s hiring decision.  Finally, he argued that because he believed in good faith that he could perform the job duties, he was entitled to maintenance and cure.

To establish its McCorpen defense, Epic had to show (1) that plaintiff intentionally misrepresented or concealed medical facts; (2) that the non-disclosed facts were material to Epic’s decision to hire plaintiff, and (3) that there was a connection between the withheld information and the injury in question in the lawsuit.  The court noted the Fifth Circuit distinction between nondisclosure and concealment, explaining that where a vessel owner does not require a pre-employment medical examination, a seaman must disclose his condition when the seaman believes the employer would consider it important.  Where the vessel owner does require a pre-employment medical examination as part of hiring an employee, a seaman who misrepresents or conceals material medical facts that an employer would plainly desire risks forfeiture of maintenance and cure benefits.

Although Epic contended that the June 11, 2008 evaluation was a pre-employment physical, the parties stipulated that plaintiff was hired prior to the evaluation on June 9, 2008.  Arguing that there was no pre-employment physical, plaintiff suggested that the only issue was whether he believed in good faith that he did not have to disclose his prior knee injury.

The court concluded that Epic had provided no evidence that plaintiff’s employment was conditioned upon his medical examination.  While this precluded summary judgment, the court noted that if Epic could show at trial that plaintiff’s employment was, in fact, conditioned on a satisfactory medical examination, then the issue would be whether plaintiff concealed or misrepresented his condition, not whether he believed in good faith he was fit for duty.

Peralta v. Epic Diving and Marine Services, LLC, 2012 WL 1698333 (E.D. La.  5/15/12)