In Denetra Thomas v. Hercules Offshore Services, the Fifth Circuit held that a Mobile Offshore Drilling Unit (“MODU”) was subject to United States Coast Guard (“USCG”) Regulations not those of the Occupational Health and Safety Administration (“OSHA”), that a Jones Act seaman had presented no evidence of negligence or unseaworthiness when she tripped over a doorway threshold on a rig, and that willful concealment of prior injuries when she applied for employment meant that her employer was relieved of its maintenance and cure obligations.
The ruling shows that employers can successfully defend Jones Act claims when an employee fails to provide evidence of fault and that diligent investigation of prior injuries can relieve the employer of its maintenance and cure obligations.
Just Because a Seaman Is Injured, It Doesn’t Mean There Is Liability
Denetra Thomas was employed by Hercules as a galleyhand on the HERCULES 264. She tripped over a raised doorway connecting her state room to the bathroom, allegedly injuring her back. Hercules began paying maintenance and cure but denied any negligence or unseaworthiness, noting that the raised doorway was compliant with USCG regulations. Investigations revealed that prior to her employment with Hercules, the plaintiff had sustained back and neck injuries, which she had failed to mention when applying for her employment with Hercules despite specific questions on these issues.
The district court granted Hercules’ motions for summary judgment dismissing plaintiff’s claims and held that Hercules was relieved of its maintenance and cure obligations under the McCorpen defense because of her willful concealment of prior injuries.
MODUs Are Covered by USCG Regulations
The Fifth Circuit first considered whether MODUs were regulated by the USCG or OSHA. The appellate court agreed with the district court that the USCG “has issued regulations with respect to the design and equipment of mobile offshore drilling units” and “was persuaded that the promulgation of these regulations constitutes an exercise of the Coast Guard’s authority sufficient to preempt OSHA’s regulations.”
Seaman Needs More than Own Opinion to Establish Negligence or Unseaworthiness
Having found that USCG regulations preempted OSHA regulations, the Fifth Circuit found that any claim that the doorway violated OSHA regulations “falls under its own weight.” The Fifth Circuit further held that when plaintiff had presented no evidence of violation of USCG regulations, no evidence of prior incidents of tripping on the doorway, and no expert evidence that the doorway was unsafe, plaintiff’s negligence and unseaworthiness claims should be dismissed.
Even If a Seaman Passes the Pre-Employment Physical, Concealment of Prior Injuries May Still Relieve Employer of Maintenance and Cure Obligations
The plaintiff had been involved in two prior car accidents, both of which had resulted in injuries to her neck and back. Despite specific questions in the pre-employment physical questionnaire, she denied any prior back or neck injuries but still passed the physical testing. The Fifth Circuit analyzed the three prongs of the McCorpen defense: (1) that the plaintiff must be shown to have intentionally misrepresented or concealed material facts; (2) that this information was material in the hiring decision; and (3) the withheld information must be linked to the injury giving rise to the claim.
There was no dispute that the first prong of McCorpen had been met, but the plaintiff claimed that Hercules had not sufficiently proved that the information was material given that she had passed the physical and that the injury giving rise to the claim was not related to the prior injuries. Rejecting these arguments, the Fifth Circuit agreed with the district court that the fact the plaintiff could pass the physical was irrelevant to the materiality of the prior injuries and that the fact the prior injuries both generally in the same body area was sufficient to meet the third prong of McCorpen. Accordingly, Hercules was relieved of its maintenance and cure obligations.
Jones Act Employers Can Defend Claims on Both Liability and Maintenance and Cure
The Fifth Circuit’s decision that USCG regulations apply to MODUs assists Jones Act employers in knowing what standards apply to their rigs. Jones Act employers are understandably nervous when faced with negligence and unseaworthiness claims, given the easier burden of proof a seaman has to establish fault. Similarly, failure to pay maintenance and cure can trigger claims for punitive damages, meaning that prudent employers err on the side of caution.
However, the Fifth Circuit’s opinion in Thomas, makes clear that injured seamen still need more than an injury and their own opinion that the employer was at fault to establish liability. The Jones Act employer generally has to pay maintenance and cure even when there is no evidence of fault. But the Fifth Circuit’s decision is a useful reminder that such obligation ceases when the injured seaman willfully concealed prior injuries when applying for the job even if the seaman can pass the pre-employment physical. Diligent investigation as to whether there were such prior injuries can pay off, as was the case here.