When a Jones Act attorney evaluates a maritime injury case, one of the issues that is commonly analyzed by the Jones Act attorney is whether the seaman’s maritime employer can use the “McCorpen defense” to avoid paying maintenance and cure benefits to an injured seaman. An employer can use the McCorpen defense when an employee hides facts about his medical history at the time that he is hired by the employer. Generally, the hidden medical condition must be severe enough that the employer would not have hired the seaman if he had known about the concealed condition.
To illustrate this point, we can look at the facts of Atlantic Sounding Company, Inc. v. Timothy Petrey, 2010 U.S. App. LEXIS 24124. This is a recent U.S. Court of Appeals case that was decided in 2010. In this case, a maritime employee named Timothy Petrey was injured while working on his employer’s vessel. He met with a Jones Act attorney who filed a claim on his behalf for maintenance and cure under the Jones Act. However, Petrey’s maritime employer asserted the McCorpen defense and refused to pay compensation benefits under the Jones Act.
Timothy Petrey had worked on a different ship prior to working for Atlantic Sounding Company where he had sustained a serious hip injury that required him to have hip replacement surgery. He later applied for a job with the Atlantic Sounding Company. During the application process, Atlantic asked Petrey about his medical history. Petrey failed to tell Atlantic about his hip replacement. Despite objections from Petrey’s Jones Act attorney, the court found that Petrey’s failure to disclose his injury to his employer was sufficient to establish the McCorpen defense and prevent Petrey from receiving benefits.
If you have suffered a maritime injury or have additional questions about the McCorpen defense, you should contact a knowledgeable Jones Act attorney. A Jones Act attorney will be able to advise you on what actions you should take and whether you may qualify for compensation benefits.