Don’t put maintenance and cure at risk

The hiring of personnel typically begins the same way: an interested applicant prepares a job application for review by a prospective employer.

The job application is a critical tool in finding the right person for a specific job. A person’s medical history and physical condition can be relevant factors in the placement process particularly to those hired to work on vessels. For this reason, job applications often include a section that asks about prior injuries, surgeries and other medical history.

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 medical background information on a job application runs the risk of forfeiting maintenance and cure benefits in the event of an on-the-job accident or injury.

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. It is dependent on the employer meeting the burden of proof that the seaman intentionally misrepresented or concealed medical facts when applying for work, the non-disclosed facts were material to the employer’s decision to hire the seaman, and there was a causal link between withheld information and the injury.

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

The McCorpen defense can result in harsh consequences for a seaman. Therefore, to avoid the risk of 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.

About the author

Daniel J. Hoerner

Daniel J. Hoerner is a maritime attorney with Mouledoux, Bland, Legrand & Brackett LLC.

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