A JONES ACT SEAMAN WHO FAILS TO DISCLOSE PRIOR INJURIES TO HIS EMPLOYER IS BARRED FROM MAKING A CLAIM FOR MAINTENANCE AND CURE FOR THE SAME INJURIES IN A SUBSEQUENT ACCIDENT.
LAZARO HERNANDEZ VERSUS BUNGE CORPORATION, MCKINNEY TOWING,INC., ZEN-NOH GRAIN CORPORATION, WELCOME FLEET & STATE OF LOUISIANA BARGE SERVICE, INC., ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY AND XYZ INSURANCE COMPANY
NO. 01-CA-1201
COURT OF APPEAL OF LOUISIANA, FIFTH CIRCUIT
01-1201 (La.App. 5 Cir, 04/10/02);
2002 La. App. LEXIS 993
April 10, 2002, Decided
DISPOSITION: AFFIRMED.
PROCEDURAL POSTURE: Plaintiff employee filed a petition for damages for injuries he sustained while working for defendant barge company. In his original petition, the employee asserted a Jones Act, specifically 46 U.S.C.S. § 688, and an unseaworthiness claim. The employee also asserted a claim for maintenance and cure against the barge company. The 29th Judicial District Court, Parish of St. Charles, State of Louisiana, dismissed his claims. The employee appealed.
OVERVIEW: The employee was working as a deckhand when he injured his back and shoulder. The employee, however, had been previously injured. The employee's physician testified that the employee had a permanent disability of 10 to 20 percent after the first accident, which did not change after the second accident. On appeal, the employee argued that the information about the first accident that was not disclosed to the barge company was immaterial, and was not connected to the second injury. The employee did not refute that he fraudulently filled out his employment application. He also lied to the physician chosen by the barge company. There was no indication that the barge company was privy to the information that the employee suffered a prior work related back injury. Under these circumstances, the trial court was correct in it's finding that the employee forfeited his right to maintenance and cure benefits through his misrepresentations. The trial court also correctly found that the employee failed to meet his burden to support his negligence claim. Finally, the appellate court could not say the trial court erred in finding that there was no showing of unseaworthiness in this case.
OUTCOME: The appellate court affirmed the trial court's judgment.
