An Employer’s Mistaken Belief About the Nature of an Employee’s Injury Does Not Relieve the Obligation to pay Maintenance and Cure

In Meche v. Key Energy Servs., L.L.C., No. 11-00561, the Western District of Louisiana awarded punitive damages and attorney’s fees against an employer that mistakenly believed plaintiff had not been injured in an accident the plaintiff suffered while aboard the employer’s vessel.In 2006 plaintiff applied for a position with Moncla Marine. During plaintiff’s pre-employment examination, Moncla’s doctor’s diagnosed plaintiff with moderate to severe arthritis, but also stated that plaintiff could perform regular duties as long as they did not involve heavy lifting or repetitive motions. In 2008, Key Energy acquired Moncla Marine but did not require plaintiff to undergo another medical examination to update plaintiff’s medical records.In June of that year, plaintiff injured his back while opening a hatch cover while aboard defendant’s vessel, the M/S MISS CATHERINE. The next day a doctor inspected

plaintiff’s back and recommended that plaintiff could return to work as long as he was not required to perform any heaving or heavy lifting.The court found that Key Energy misunderstood the doctor’s report and incorrectly believed that plaintiff could in fact return to work without restrictions. Plaintiff never returned to work nor did he request to return. Because of plaintiff’s absence, Key Energy terminated plaintiff’s employment and did not send him notice to that effect. The plaintiff filed suit against the defendant, alleging negligence, unseaworthiness, failure to pay maintenance and cure and punitive damages.A maritime employer has an absolute duty to provide an employee maintenance and cure if the employee is injured in the course of employment. Maintenance and cure requires the employer to pay the employee’s food and lodging, (maintenance), in addition to all of his medical costs associated with the employee’s injury, (cure). Maintenance and cure payments are applied retroactively from the date of the injury itself until the point of maximum medical cure, (MMI). MMI is the point at which no further medical improvement is reasonably expected.Key Marine asserted the McCorpen defense, which relieves an employer from paying maintenance and cure if the employee intentionally misrepresented or concealed a pre-existing medical condition. The court denied the McCorpen defense based in large part on its finding that Key Marine had not required plaintiff to undergo a pre-employment examination when Key Marine acquired Moncla in 2008. The court found that Key Energy had not performed its due diligence by failing to take any measures to update the medical records of pre-existing employees. Rather, Key Energy took the pre-existing employees as they were. The court concluded that it was reasonable for plaintiff to assume that Key Energy did not consider the disclosure of his pre-existing injury to be important. Thus, Key Energy could not prove that plaintiff’s non-disclosure satisfied the intent requirement for asserting a successful McCorpen defense.The court rejected plaintiff’s claims of Jones Act negligence and unseaworthiness but upheld an award for maintenance and cure and punitive damages. The court awarded maintenance and cure based on its finding that plaintiff had aggravated a pre-existing lumbar illness at the time of the June 20, 2008 injury. Further, because Key Energy did not pay the plaintiff any compensation for his injuries, nor offer plaintiff continued employment, the court found Key Energy’s actions reached the level of unreasonable and wanton, justifying an award of punitive damages.