seaman. Vaughan, 369 U.S. at 532.
Plaintiff argues that she is entitled to maintenance and cure because of injuries sustained while in service aboard Defendant's vessel. Whether plaintiff initially injured her back on board the DEWEY R or only aggravated an existing injury is irrelevant to the inquiry of whether defendant is liable to pay maintenance and cure. See Stevens, 82 F.3d at 1357-58; McCorpen, 396 F.2d at 549. Plaintiff presents evidence regarding her medical and living expenses and states that she has been unable to work due to her injuries.
Defendant raises the affirmative defense that plaintiff forfeits maintenance and cure because she intentionally failed to disclose material information concerning her history of back problems on the health history form she submitted for her pre-employment physical examination. Defendant argues that it desired and actively sought disclosure of back problems, and would not have hired her if the alleged pre-existing problem had been disclosed.
Although the seaman's right to maintenance and cure is broad, it is "subject to a few narrow exceptions." Wactor, 27 F.3d at 352. "Where the seaman is required to provide pre-employment medical information and 'the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance and cure,' if the injury incurred on the employer's vessel is causally linked to the concealed medical condition." Id. (quoting McCorpen, 396 F.2d at 549. A defendant must prove by a preponderance of the evidence each of the following elements: the seaman "knowingly misrepresented to or concealed from the examining physician the facts concerning" a prior injury; "such misrepresentation or concealment was material; it was relied upon by the defendant; and [the seaman] would not have been permitted to continue to work and remain aboard the vessel if the true state of facts had been disclosed." Sulentich, 257 F.2d at 320; see also Wactor, 27 F.3d at 352; McCorpen, 396 F.2d at 549; Evans v. Blidberg Rothchild Co., 382 F.2d 637, 639-40 (4th Cir. 1967); Burkert v. Weyerhaeuser Steamship Co., 350 F.2d 826, 829 n. 4 (9th Cir. 1965).
"Nondisclosure of a pre-existing injury, without more, will not result in a seaman's loss of maintenance and cure. Such a forfeiture will not occur unless [the seaman] intentionally misrepresented or concealed medical facts that were material to the decision to hire him." Deisler v. McCormack Aggregates, Co., 54 F.3d 1074, 1080 (3rd Cir. 1995). "Given the historical importance of a seaman's claim for maintenance and cure, it should not be lost unless the employee's purportedly wrongful conduct was material to an employer's hiring decision." Id. at 1081.
Plaintiff argues that Defendant has failed to carry its burden of proving its affirmative defense. Plaintiff argues that she did not intentionally misrepresent a history of back problems on Defendant's medical form because she denies that she had a prior history of low back pain. Plaintiff denies that she was treated for back pain under the name of Theresa Gail Posey and denies that she told Paul Johnson that she had back problems. She claims that her treatment in 1995 for a back injury was not for low back pain or injury. Although plaintiff's physician apparently did not treat plaintiff for low back injury, the admitting and discharge notes for plaintiff clearly indicate "low back strain." This evidence creates at least an issue of material fact regarding whether plaintiff had a prior history of low back pain.
Plaintiff next argues that even if she did fail to disclose a history of back problems, she is not foreclosed from receiving maintenance and cure because she had a good faith belief that the medical condition was not relevant to her employment and would not prevent her from performing her duties as a cook. Plaintiff relies on the rule in the Second Circuit: a seaman is denied maintenance and cure for concealing a pre-existing medical condition only if he knew or should have known that the condition is relevant to his employment. Deisler, 54 F.3d at 1081; Sammon v. Central Gulf Steamship Corp., 442 F.2d 1028, 1029 (2nd Cir.), cert. denied, 404 U.S. 881, 30 L. Ed. 2d 162, 92 S. Ct. 202 (1971). Plaintiff has not presented any case to establish that this rule has been adopted in this circuit, but even if it has, a question of fact remains as to what plaintiff knew at the time she applied for the job.
Plaintiff also argues that defendant has not provided evidence demonstrating that the information of alleged prior back injuries was material, that defendant relied upon this information, or that she would not have been hired had defendant known about the alleged prior back problems. Plaintiff argues that here, unlike in Sulentich, the examining physician did not state that he would have considered the allegedly concealed information to be material or would have refused to approve Plaintiff for service as a cook had he known about the alleged prior back problems. In response to this argument, defendant offers the deposition of Dr. Joseph Bonck, the examining physician. Dr. Bonck testified that had he known of the alleged pre-existing condition he would have performed a more complete examination, and recommended that plaintiff not perform any heavy lifting (over 25 pounds), repetitive lifting, and only occasional bending. Defendant also presented the affidavit of Cathy Otts, defendant's dispatcher in 1995, in which she stated that based on Dr. Bonck's testimony, she would not have hired plaintiff because plaintiff would not have been able to perform the job. This testimony creates an issue of fact that cannot be decided on summary judgment.
Moreover, the court can presume the materiality of, and Defendant's reliance on, the information regarding plaintiff's alleged prior back injuries because the information was specifically requested on defendant's health form. In Deisler, the Third Circuit rejected a presumption of materiality and reliance where the seaman failed to answer a single general question regarding any past illnesses or injuries on a standard employment application. 54 F.3d at 1081-82. The shipowner had failed to investigate the seaman's omission and the shipowner had never signed or initialed the form in the "Reviewed By" or "Approved By" sections. Id. The Third Circuit went on to state (at 1082):
But there may be situations where courts should presume such reliance. For instance, if a shipowner requires a prospective applicant to submit to a physical examination and/or to fill out a detailed medical history form, the extent to which the employer will be required to submit affirmative proof of reliance should be diminished. It is not that reliance is no longer required; rather, it is that the employer will there have demonstrated reliance by adopting a particular procedure or form.
Here, defendant required plaintiff to submit to a physical examination and to fill out a detailed medical history form. Plaintiff checked "NO" for "ANY BACK INJURIES OR PROBLEMS" on the "HEALTH HISTORY" form.
Regarding materiality and reliance, plaintiff points to the testimony of Paul Johnson, another towboat owner, submitted by defendant, indicating that plaintiff's alleged prior back injuries did not interfere with his decision to hire plaintiff as a cook. However, Johnson is not the defendant in this case, and differing policies create differing inferences of materiality and reliance. Johnson did not require Plaintiff to submit to a pre-employment physical. Defendant's policy of requiring plaintiff to submit to a physical examination and to fill out a detailed medical history form creates at least an issue of fact of whether the information was material, whether defendant relied upon the information, and whether it would have been a factor in its decision to hire plaintiff.
Because issues of material fact exist regarding defendant's affirmative defense, plaintiff's motion for partial summary judgment for maintenance and cure is denied.
ENTER: January 8, 1997
Robert W. Gettleman
United States District Judge
© 1992-2004 VersusLaw Inc.