If a seaman is injured or falls ill in the service of their vessel, he or she is entitled to maintenance and cure (M&C) benefits. The vessel employer owes the crewman M&C benefits regardless of fault. The payments continue until the point of what is called maximum medical improvement. However, there are defenses that employers use against M&C claims, which seamen need to be aware of.
Defense Against Maintenance and Cure Claims
A vessel employer can attempt to avoid its maintenance and cure obligations owed to you. One of the ways to do so is by using the McCorpen defense tactic. To succeed with this strategy, they need to prove that:
- You have intentionally concealed a pre-existing medical condition;
- The non-disclosed facts are material to the employer’s decision to hire you; and
- There is a connection between the concealed information and the injury sustained.
Typically, seamen are required to undergo pre-employment physicals or screenings and are asked to complete medical questionnaires as part of the hiring process. If the seaman willfully conceals a pre-existing medical condition, then the McCorpen defense can preclude recovery for M&C.
Tips for Seamen on Maintenance and Cure Claims
Seamen need to be aware that failure of disclosing pre-existing medical conditions can result in denial of M&C by your employer by proving you have intentionally misrepresented or concealed medical facts.
One such case that involves the McCorpen defense is the Hurtado v. Balerno International, which shows how a concealed medical fact plays against an injured seaman in court. All the rest of the three conditions for the McCorpen defense were present, so the employer managed to avoid liability.
What if your vessel employer has no right to deny you M&C? You are allowed to recover punitive damages and attorney’s fees from them. Consult an experienced maritime attorney to make the most of your personal injury case.
