In the maritime work force, workers fall generally into two groups. There are those who work aboard vessels and in the eyes of the law would be considered seaman. And, there are those who are engaged in some aspect of maritime commerce earning their living on the navigable waters and adjacent facilities, but who are not assigned to a specific vessel or fleet of vessels. These workers may be, for instance, longshoremen, ship repairmen or fabricators.
What both groups have in common is that if injured on the job their employers may have a non-delegable, no fault duty to pay compensation and medical expenses to, and on behalf of the injured worker.
The maritime law which protects the rights of the injured seaman, and the federal and state workers’ compensation statutes which provide for the injured land based maritime worker, are all interpreted by the courts in a liberal manner, favoring the injured employee. As a result, if one of its employees claims job related illness or injury, the employer will be responsible for compensation benefits to the land based worker, maintenance (a daily living allowance) to the seaman, and costs of medical treatment until the employee is discharged by his physicians. Fault or negligence of the employer in causing the illness or injury pays no role in assigning these duties. Given the rising costs of medical services and insurance, the employer has substantial financial exposure.
However, there are defenses of which a diligent employer can avail itself. The “front-line” defenses are a comprehensive written employment application and a thorough and detailed written pre-employment physical questionnaire, both of which the applicant should be required to personally fill out and sign with the express written understanding that everything stated is true.
In the case of the seaman, the employer may be able to escape financial responsibility if it can prove that the seaman intentionally misrepresented, lied about or concealed a pre-existing medical condition, that the pre-existing condition is the same as, or substantially the same as the condition, and that had it known of the pre-existing condition the claimant would never have been hired. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968).
While it may be more time consuming and expensive, thorough screening at these stages in the employment process will save money down the road. One claim has the potential of dramatically affecting the bottom line of any company, particularly those who are self-insured or carry high deductibles. By requiring the applicant to fill out applications and detailed pre-employment physical history questionnaires, the employer will have documentation that should be preserved and can be used as evidence should a questionable claim be filed and litigation ensue.