Court of Appeals Limits Maintenance and Cure Defense
Many maritime employers require their prospective crewmen to answer a preemployment health questionnaire. These health questionnaires are rarely used in the hiring process and are instead utilized as weapons by maritime employers to attack the seaman’s credibility in cases where the seaman later becomes injured and seeks compensation under the Jones Act or Unseaworthiness Doctrine.
If a seaman fails to disclose a preexisting medical condition in response to a health questionnaire, the employer then attempts to deny the crewman maintenance and cure benefits, arguing that the seaman willfully concealed a preexisting condition. This defense to maintenance and cure claims, based upon willful concealment of preexisting medical conditions when asked to make disclosure in a health questionnaire, can be traced to the Fifth Circuit Court of Appeals decision in McCorpen v. Central Gulf Steamship, 396 F.2d 547 (1968).
McCorpen did not hold that a maritime employer asserting the willful concealment defense could recover maintenance and payments they alleged were wrongfully paid. Nevertheless, some maritime employers have improperly sought to recover the previously paid benefits made to the injured seaman. This intimidation tactic is designed to frighten seamen who have been injured through the negligence of their employer or the unseaworthiness of their vessel into not bringing suit or settling their cases for less than fair compensation.
In an important decision to all injured seamen the Fifth Circuit in Boudreaux v. Transocean Deepwater Inc., 721 F.3d 723 (July 2013) held: where a maritime employer has made maintenance and cure payments to an injured seaman and the seaman is alleged to have not properly disclosed a preexisting medical condition in response to a written health questionnaire, there can be no recovery of maintenance and cure benefits previously paid. In Boudreaux, the Fifth Circuit noted that recovery of maintenance and cure benefits previously paid by a maritime employer based upon a willful concealment defense finds virtually no support in maritime law. The Court declined to adopt what they referred to as a novel theory of restitution.
It is well settled maritime law that even where a seaman fails to properly disclose a preexisting condition, the failure may only result in forfeiture of his further maintenance and cure benefits. The failure to disclose a preexisting condition does not and cannot impact a seaman’s right to recover full damages, including past and future medical expenses, under the Jones Act. See Johnson v. Cenac Towing Inc., 544 F. 3d 296 (5th Cir. 2008).
However, a seaman is not entitled to duplicative damages for medical expenses under the Jones Act and the maintenance and cure doctrine. A maritime employer is entitled to a set off for past medical expenses paid where the seaman receives an award for past medical expenses under the Jones Act. If no medical expenses are awarded or the seaman agrees to not seek recovery for past medical expenses in his Jones Act claim, there can then be no set off for maintenance and cure expenses previously paid by the employer. The employer may recover an offset for maintenance cure payments only where the employer can prove there is “duplication” between the Jones Act award and the previously paid maintenance and cure benefits.