US Court Reviews Maintenance and Cure, Unseaworthiness and Jones Act Negligence

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The recent case of Cenac Marine Services, LLC v Jason Clark United States District Court Eastern District of Louisiana civil action no. 16-15256 and 16-15029 is an interesting example of how a seafarer forfeited maintenance and cure payments due to deliberate concealment of a pre-existing injury, and how the absence of a genuine issue of material fact resulted in the rejection of his unseaworthiness and Jones Act negligence claims.

Background
On 29 June 2016 seafarer Jason Clark was moving a cross-over hose unassisted which caused a back strain. The following day he submitted an incident report to his employer Cenac Marine Services (“CMS”) confirming that the injury was not caused by any other person or equipment on board the ship. While receiving medical treatment for the back strain it transpired that Mr Clark was also suffering from a spinal infection (osteomyelitis). CMS agreed to pay maintenance and cure to avoid any potential grounds for a punitive damages award, but with a reservation of rights to seek reimbursement of sums paid at a later date if appropriate.

Maintenance and cure
After Mr Clark had reached maximum medical improvement CMS’s counsel discovered that his injury was not work related. Subsequently CMS filed suit seeking declaratory relief on the maintenance and cure issue. The Court granted summary judgement in favour of CMS finding they were not liable for maintenance and cure payments, or punitive damages, because the injury pre-dated the crewmember’s employment and because he had intentionally concealed this from CMS. Mr Clark had undergone a pre-employment medical examination where he advised that he had a repaired hernia but failed to mention having received medical treatment for back and neck pains since 2011.

Similarly, when completing the accident report on 30 June 2016, Mr Clark again denied any previous back injury or back pain prior to the 29 June 2016 accident. It was only during discovery that CMS became aware of Mr Clark’s previous back issues.

The Court found that Mr Clark deliberately concealed parts of his medical history which in turn materially impacted upon CMS decision to hire him. The Court also found that although the concealed injury from 2011, and the subsequent injury were located in the same part of the spine, there was no evidence that the injury arose during the time of the employment.

Mr Clark made three counter claims against CMS:

Unseaworthiness claim
In an affidavit submitted by Mr Clark he claimed that the crew was incompetent rendering the vessel unseaworthy as a fellow deckhand failed to assist him when moving the cross-over hose. The facts recalled in the affidavit were in stark contrast with those stated in the incident report, later confirmed by Mr Clark during his deposition, where he advised he did not seek help from any of his colleagues and that the injury was not caused by any other person or equipment on board the ship.

The Court rejected the unseaworthiness claim emphasising that the affidavit was wholly groundless and merely an attempt to construct a genuine issue of material fact which did not exist.

Withheld Safety Bonus Claim

As part of the employment terms, CMS offered a safety reward bonus to employees who had no incidents or accidents during the period 1 January 2016 to 30 June 2016. CMS confirmed they did not pay out a safety bonus claim to Mr Clark because he was injured during that same six month period.

The Court found that the crewmember did not qualify for a safety reward bonus as even if he had been employed for the duration of the six month safety bonus period this would not entitled him to the benefit because his injury happened before the six month safety bonus period had expired.

Jones Act Negligence Claim
Various medical experts were consulted to assess Mr Clark’s medical condition. Some medical experts advised that his condition was not related to the incident on 29 June 2016, or even work-related, and that the osteomyelitis was likely a pre-existing condition. One expert concluded that the osteomyelitis may have started as a result of a beam having fallen on him but no such accident was reported while he was employed with CMS and the same medical expert was unaware that Mr Clark had sustained a back sprain on board the vessel on 29 June 2016. Another medical expert determined that the osteomyelitis may have been connected with the 29 June 2016 incident but this medical report had been drawn up before Mr Clark was diagnosed with osteomyelitis.

The Court concluded that there was no evidence to show that that the osteomyelitis was caused by the accident on 29 June 2016 or due to any negligence by CMS. The Court concluded this was again an attempt at creating a genuine issue of material fact which did not exist.

Conclusion
This case emphasises the importance of making sure that all paperwork - such as incident and accident reports – is timely and accurately completed. The evidential value of contemporaneous reports cannot be overstated particularly where, as in this case, subsequently there are attempts to allege differing facts to underpin a claim for damages. It also shows the importance of conducting a pre-employment medical examination, whereby crew are required to disclose any prior injuries, as ultimately this can help to provide a defence to maintenance and cure claims.