Maintenance and Cure at Risk by Failing to Fully Disclose Medical History

Hiring personnel typically starts the same way: an interested worker prepares a job application for review by the prospective employer. The application is a critical tool in placing the right person for a specific job. One’s medical history and physical condition can be relevant factors in this placement process particularly those hired to serve on vessels. For this reason, job applications often include a section that inquires about prior injuries, surgeries and other medical history, among other personal data. For the benefit of both the applicant and employer, the medical history section of any employment related form should always be reviewed carefully and filled out completely and honestly. A seaman who has falsified information concerning his medical background on a job application runs the risk of forfeiting his entitlement to maintenance and cure benefits in the event of an on-the-job accident or injury later on.

Often referred to as the “McCorpen defense,” an employer can be absolved of its maintenance and cure obligations, an otherwise near absolute duty to pay medical and living expenses to a seaman who is injured or becomes ill, regardless of fault. This defense can be triggered when a seaman has knowingly or fraudulently concealed a pre- existing medical condition, injury or illness when applying for work. Prevailing on the McCorpen defense is not automatic and is dependent upon the employer meeting the burden of proof that (1) the seaman intentionally misrepresented or concealed medical facts when applying for work, (2) the non-disclosed facts were material to the employer’s decision to hire the seaman, and (3) there was a causal link between withheld information and the injury at issue.

Under this standard, the employer must present evidence that it would not have hired the seaman had it known of his or her true medical background. Moreover, the non- disclosed prior medical condition must relate to the injury or illness that occurs during the employment and gives rise to a maintenance and cure claim.

The McCorpen defense can result in harsh consequences for a seaman when he is perhaps most in need. Therefore, to avoid risking the losing the right to receive maintenance and cure in the event of an on-the-job injury or illness, full attention and honesty should always be exercised when preparing a job application, particularly with respect to the medical history inquiries.

This article was originally published in the February 2020 issue of WorkBoat magazine.