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Laprarie v. Hercules Offshore Corp.2/6/2002
REVERSED.
Mark LaPrarie appeals the trial court's grant of summary judgment in favor of Parker Drilling Offshore Corporation (Parker), denying him maintenance and cure benefits. For the following reasons, we reverse.
Facts
In May 1998, Plaintiff went to work for Parker as a floor hand. Prior to going to work, he had to undergo an extensive pre-employment physical and was approved for "heavy to very heavy" work. At the time of the physical, he completed a pre-placement examination physical form which asked if he "ever had, or do you now have any of the following conditions: . . . Past or Present Back and Neck Trouble . . ." He answered "no," which was incorrect; he had injured his back in a 1993 work-related accident.
After going to work for Parker, Plaintiff regularly performed heavy work for almost one year without incident. On March 31, 1999, he injured his back in an accident at work. He filed this lawsuit, seeking damages and maintenance and cure under the Jones Act. After answering the lawsuit, Parker filed a motion for summary judgment, alleging that Plaintiff was not entitled to maintenance and cure benefits. After a hearing, the trial court rendered judgment in favor of Parker, denying Plaintiff those benefits. This appeal followed.
Discussion
The basis of Parker's motion is McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968); cert. denied, 393 U.S. 894, 89 S.Ct. 223 (1968), which affirmed the principle that a seaman will be denied maintenance and cure "where he knowingly and or fraudulently conceals [a prior illness] from the shipowner." A distinction has developed between those situations where the seaman fails to offer information that has not been requested and those situations where information is requested but not provided truthfully. " here the shipowner requires the seaman to submit to a pre-hiring medical examination or interview 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." Id. at 549. However, even when the seaman knowingly concealed material medical information, his employer cannot avoid paying maintenance and cure "unless there is a causal link between the pre-existing disability that was concealed and the disability incurred." Id. at 549.
Parker established that Plaintiff suffered an injury to his back in 1993 for which he sought treatment from Dr. John Jackson, a neurosurgeon, on two occasions in 1994 and that his failure to disclose his prior back injury was material to its determination of whether or not to hire him. To establish a causal connection between the 1993 injury and the 1999 injury, which were in the same area of the lower back, i.e., L4-5, Parker relied upon the deposition testimony of Dr. Jackson. In defense of the motion, Plaintiff argued that the evidence presented by Parker did not establish the criteria of McCorpen, pointing out portions of the doctor's testimony which supported his position.
The trial court determined that Plaintiff intentionally concealed his prior back injury from Parker and that it was causally connected to his March 1999 back injury, stating, " he medical evidence indicates that the first injury weakened the disks , and the subsequent injury caus it to rupture." Summary judgment was granted in favor of Parker.
In his deposition, Dr. Jackson testified that a March 8, 1994 MRI scan of Plaintiff's lumbar spine revealed a lumbar spine disc herniation at the L4-5 level and a possible mildly diffused bulge of the L5-S1 disc. He described the bulge at L4-5, which was beneath a
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