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Wilful Concealment of a Pre-Exisitng Injury - Defence to a Jones Act Claim

SSM Roundel

Steamship Mutual

Published: January 01, 2009

A basic premise of the Jones Act is to ensure that the rights and needs of an injured or sick seaman are protected. A Jones Act employer is obliged to pay maintenance and cure expenses to an employee with Jones Act status should that employee suffer injury or illness while in the service of a vessel. One defence to the payment of such benefits is the wilful concealment of a disabling condtion by a seaman at the time of his or her employment.The defence is often refered to as the McCorpen rule (McCorpen v Central Gulf S.S Corp (5th Cir. 1968).  

 

In order to establish a defence of “wilful concealment”, an employer must show that: 

    1. An intentional concealment or misrepresentation of medical facts concerning a prior injury or condition occurred.
    2. The non-disclosed facts were material to the employer’s decision to hire the employee.
    3.  A connection existed between the witheld information and the injury complained of in the subject suit. 

The 5th Circuit extended the application of the McCorpen defence in a recent decision; Johnson v. Cenac Towing Inc (5th Cir. Sept. 24, 2008). Wilful concealment had never previously acted as a bar to recovery under the Jones Act. Counsel for Cenac argued that Johnson’s intentional misrepresentation of a prior injury not only negated his eligibility for Jones Act benefits but also acted as an affirmative defence of contributory negligence on Johnson’s part and that any damages awarded by the court should be reduced accordingly. On appeal, the Fifth Circuit ruled that the wilful misrepresentation of a pre-existing injury could indeed be used as an affirmitive defence for contributory negligence purposes in certain circumstances. 

Leroy Johnson, a tankerman employed by Cenac Towing alleged that he sustained injury to his back as a result of an incident which occurred during the course of his maritime duties. Suit was filed in Federal Court and Johnson alleged negligence under the Jones Act and unseaworthiness and also pursued a claim for maintenance and cure.

 

Johnson had previously applied for employment with Cenac on two seperate occasions. In each instance, he completed a pre-employment medical questionaire. In each, he answered in the negative, a question as to whether he had previously suffered from any prior back injury. The discovery process revealed that this was not the case and in reality, Johnson had suffered two previous back injuries. The first, an injury to his neck and back, required surgical treatment and resulted in ten months disability and the second, a back injury, resulted in thirteen months disability. Cenac’s physician who reviewed the pre-employment examinations of prospective employees stated that he would not have cleared Johnson as being physically fit for his maritime duties had he been aware of the previous injuries. 

The district court denied plaintiff maintenance and cure benefits on the grounds that he had wilfully concealed his pre-existing medical conditions. The three elements of the McCorpen defence detailed above were deemed to have been met. Cenac also argued that any damages to which Johnson might be entitled should be reduced to reflect the fact that Johnson’s wilful concealment of his disabling condition had contributed to the injury he allegedly sustained in the subject incident. The court however, rejected this argument and ruled that the defendant was entirely at fault for Johnson’s injuries. 

On appeal, the Fifth Circuit ruled that while the denial of maintenance and cure benefits was proper, the district court’s ruling was unclear as to whether paintiff had been contributorily negligent in witholding information pertaining to his previous injuries. The trial court’s determination that plaintiff’s wilful misrepresentation could not be used as an affirmative defence for contributory negligence purposes was reversed and the case was remanded to the district court to determine whether Johnson had been contributorily negligent in “exposing himself to heavy labour with a weakened back.” 

The conclusions of the Fifth Circuit suggest that wilful misrepresentation of a pre-existing injury or condtion may be used as an affirmative defence of contributory negligence if it can be shown that a seaman has exposed himself to a greater risk of injury through his concealment of a condition that has weakened him. A seaman may be considered to be negligent if he fails to act with ordinary prudence under the circumstances. It is likely that Johnson would not have been employed had he admitted to his previous injuries and in applying for the position and allowing himself to be placed in certain circusmtances while pursuing his normal duties, may have set himself up to re-aggravate his previous injuries. In this sense, it could be considered that he had contributed to the cause of his complaint and any damages awarded should be reduced by a degree appropriate to the extent of his contributory negligence. 

While adding a further approach for the defendant to take when arguing causation in Jones Act cases, the Johnson decision also highlights the importance to an employer of undertaking thorough pre-employment medical examination procedures. Wilful concealment may occur if a prospective employee chooses not to divulge certain information when completing a written medical questionaire or undergoing a pre-employment oral interview. A pre-employment medical examination undertaken by a properly qualified physician may offer a greater degree of protection to an employer.  

A pre-employment medical examination may offer a better chance of identifying an applicant’s pre-existing complaints. If these are likely to act as a disabling condition, the employer has the opportunity to ensure that a prospective employee who is not fit to pursue the often strenuous activities of maritime work, is not put in a position aboard a vessel where he may aggravate a pre-existing condition, possibly through little or no fault of his employer. The risk of a seaman suffering a permanently disabling condition and pursuing a claim in tort for what may be significant damages is in turn reduced. The undertaking of pre-employment MRI scans offer a perhaps even greater degree of protection to the prospective employer. A pre-existing and potentially disabling condition such as a herniated or dessicated disc (a back complaint) may be identified through the scan and the employer will have the opportunity to seek opinion from a physician as to whether the applicant is fit for maritime duty. While a degree of cost will be incurred in pursuing such rigorous pre-employment examinations, the long term savings effected if cases such as Johnson can be avoided may significantly outweigh the costs of the pre-employment procedures.

 

For further information on the Club’s enhanced Pre-Employment Medical Examination (PEME) Scheme see circular B.479 of December 2008 .

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