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Dealing With Pre-Existing Conditions In Jones Act Seamen Part Two: Failure To Disclose Pre-Existing Conditions
| 题名： | Dealing With Pre-Existing Conditions In Jones Act Seamen Part Two: Failure To Disclose Pre-Existing Conditions |
| 正文语种： | eng |
| 作者： | TED LUCAS |
| 摘要： | A Jones Act seaman s failure to disclose pre-existing conditions during the hiring process can provide his employer with two defenses in a subsequent personal injury lawsuit. The first defense is commonly referred to as the McCorpen defense, which relieves the employer of its obligation to pay maintenance and cure if: (1) the employee conceahsd the pre-existing condition intentionally; (2) the concealment was material to the employers decision to hire the employee; and (3) there is a direct connection between the condition that was concealed and the employ- ee's current condition. It will be impossible for the employer to prove intentional concealment unless the employer requires the employee to undergo a physical examination and complete a medical questionnaire as a condition of being hired. A detailed questionnaire that asks the right questions is key, e.g.: "Have you ever injured your back? If so, when and where?" "Have you ever experienced any of the following: (back pain yes/no) (leg pain yes/no)?" The concealment of a pre-existing condition is material if the employer would not have hired the employee had the employee fully disclosed the pre-existing condition. Ultimately, it will be necessary for the examining physician to testify that she would not have approved the employee for hiring if she had known of the pre-existing condition. Consequently, it is critical that the physician conducting the examination have a thorough understanding of a prospective employee's job duties and the heavy manual labor in- volved, the nature of a Jones Act claim and the types of pre-existing injuries that would likely disqualify a prospective employee. Careful advance planning with the examining physician is crucial. |
| 出版年： | 2021 |
| 期刊名称： | The Waterways Jouranl |
| 卷： | 135 |
| 期： | 12 |
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