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Maritime Casualty

Successors’ Use of Prior Pre-Employment Medical Exams

In Meche v. Doucet, 777 F.3d 237 (5th Cir. 2015), the U.S. Fifth Circuit Court of Appeals discussed a Jones Act employer’s McCorpen defense to the payment of maintenance and cure benefits.  To successfully establish the defense, the employer must show (1) the claimant intentionally misrepresented or concealed medical facts; (2) the non-disclosed facts were material to the employer’s decision to hire the claimant; and (3) a connection exists between the withheld information and the alleged injuries.

Pre-Employment Medical Examination

Jones Act employers frequently conduct pre-employment medical examinations or interviews in which the potential employee must disclose past illnesses and injuries.  In such cases, it is usually clear if the employee misrepresented or concealed medical facts.  However, in McCorpen cases where a pre-employment medical examination or interview is not conducted, the Jones Act employer must prove “that the plaintiff subjectively believed that her employer would deem her medical condition a matter of importance.”

In Meche, the plaintiff’s employer, Key Marine Services (“Key”), did not require a medical examination or interview.  The plaintiff argued, therefore, that the subjective standard applied.  However, the plaintiff previously worked for Moncla Marine (“Moncla”) and continued this employment when Moncla’s marine division was purchased by Key.  The plaintiff did submit to a medical examination prior to being hired by Moncla.  Key argued that the plaintiff’s misrepresentation to Moncla was “tantamount to a misrepresentation to Key for purposes of the McCorpen defense.”

Purpose of the McCorpen Defense

The Fifth Circuit agreed.  The purpose of the McCorpen defense is to ensure that a seaman is physically capable of performing the required work and does not injure himself or his coworkers.  The Fifth Circuit reasoned that an “intervening asset sale” reduces neither the risk of injury to the seaman nor the risk of injury to others on the ship.

Successor Companies Should Review Pre-Employment Medical Examinations

The Court noted, “[I]t makes little economic or logical sense to require a successor company to reexamine its predecessor’s employees solely for the purpose of avoiding maintenance and cure liability for their previously concealed medical conditions.”  When a company conducts a medical examination of a seaman, its successor company should be able to rely on the seaman’s representations during that exam.

Employers should be aware that the Meche rule only applies to companies within the circuit who purchase a corporate division and keep the predecessor’s seamen in its employment.  It does not apply in other cases, such as when a seaman leaves his employment for another company.

Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.