While a Jones Act seaman’s willful concealment of a pre-existing medical condition has long been held to preclude a seaman’s recovery for maintenance and cure benefits, willful concealment has never acted as a bar to recovery under the Jones Act.   The Fifth Circuit’s recent ruling in Leroy Johnson v. Cenac Towing, Inc. provides both comfort and caveat to the Jones Act employer. [See 2008 WL 4330553 (5th Cir. 2008)]. 

The comfort: the seaman who willfully conceals a pre-existing medical condition from his employer does so to his own peril—if his concealment causes the seaman to suffer a re-injury, the seaman will be precluded from recovering maintenance and cure, and will see his Jones Act claim reduced in proportion to the percentage of fault attributable to his concealment. The caveat: insurance benefits received by a Jones Act seaman under an employer financed health insurance plans that provide coverage only for non-work-related injuries are “collateral source” payments and will not reduce the seaman’s recovery from his employer for Jones Act negligence.

Still, the Fifth Circuit notes: "If Cenac had established a health insurance plan that covered both work-related and non-work-related injuries and contained specific language requiring that benefits received under the plan be set-off against a judgment adverse to the tortfeasor [Jones Act employer], then a court might find that the plan was intended to indemnify the tortfeasor from liability."  [See Allen v. Exxon Shipping Co., 639 F.Supp. 1545, 1549 (D.Me. 1986).]

Leroy Johnson, a Jones Act Seaman employed as a tankerman by Cenac Towing, injured his back while carrying a 175-pound cross-over hose aboard a Cenac vessel. Johnson had applied for employment with Cenac on two occasions. Both times, Johnson indicated that he had never suffered any on-the-job injuries and that he did not have any physical conditions that might interfere with or hinder his job performance. In connection Cenac’s pre-employment physical examinations, Johnson completed medical history questionnaires. Both times, Johnson indicated that he had never hurt his back and had never received disability compensation. Yet Johnson had suffered work-related injuries on two occasions prior to his employment with Cenac. In 1994, Johnson sustained neck and back injures that left him disabled for 10 months; Johnson underwent neck surgery for these injuries. In 2001, Johnson re-injured his back and was disabled for 13 months; Johnson received steroid injections for the re-injury.

Johnson then injured his back in 2005 while working for Cenac. Johnson applied for and received insurance benefits for his back injury under an employer financed insurance plan, which provided coverage only for non-work-related injuries.

District Judge Sarah Vance denied plaintiff maintenance and cure benefits on the grounds that plaintiff had willfully concealed his pre-existing medical conditions. Judge Vance awarded plaintiff damages under the Jones Act. While Judge Vance found the plaintiff’s injuries to be aggravations of his pre-existing conditions, the Fifth Circuit found that Judge Vance’s ruling was unclear as to whether the plaintiff had been contributorily negligent by willfully concealing his prior injuries from Cenac. The Fifth Circuit remanded the case to the District Court to determine whether plaintiff had been contributorily negligent in “exposing himself to heavy labor with a weakened back.” The Fifth Circuit’s decision did not make a determination on Johnson’s contributory negligence.