Brown v. Parker Drilling Offshore Corp.

EDITH BROWN CLEMENT, Circuit Judge:

This case presents numerous questions arising from a seaman’s suit against his employer to recover damages for an injury allegedly .sustained while aboard the employer’s vessel. Following a jury trial, the seaman was awarded damages. The employer appeals, contending that the jury erred when it found that the seaman had not willfully concealed his prior back injuries, and that the employer had been unreasonable in withholding maintenance and cure benefits.¹ We agree with the employer’s contentions, and accordingly reverse.

. I. FACTS AND PROCEEDINGS

Rickey Brown injured his back in August 1998 while lifting a sack of corn. Brown was treated at an emergency room and issued a wheelchair and walker. Brown told his treating physician, Dr. Walter Johnston, that he heard a “pop” in his back during the accident.

Ten months later, on June 29, 1999, Brown applied to work as a seaman for LeTourneau, Inc. As part of the application process, Brown filled out LeTour-neau’s medical questionnaire. Brown checked “No” when asked whether he had ever suffered from “Back Trouble.” Based in part on this representation, Le-Tourneau hired Brown. In late May 2000, while working for LeTourneau, Brown alleged that he injured his back. Brown was again treated by Dr. Johnston. After the accident, Brown was terminated from LeTourneau for falsely reporting an on-the-job accident, filing a false accident claim, and failing to disclose his 1998 back injury on LeTourneau’s medical questionnaire.

On August 15, 2000, two months after being fired by LeTourneau, Brown applied to work as a floorhand for Parker Drilling Offshore Corp. (“Parker”). On Parker’s medical questionnaire, Brown checked “No” when asked whether he had “Past or Present Back and Neck Trouble.”² Based in part on this representation, Parker hired Brown.

On April 20, 2001, Brown reported to his superior, Tommy Harter (“Harter”), that he felt back pain while pulling slips out of the master bushings of the rotary table aboard the Parker rig. Harter sent Brown off the rig floor to complete an accident report. Brown later explained that the master bushings came up and then popped back down, causing the slip he was holding, which was attached to the master bushings in the rotary table, to suddenly jerk him. During its accident investigation, Parker came to believe that Brown’s back injury was not sustained aboard the vessel, and that Brown had willfully concealed his prior back injuries. Based upon these beliefs, Parker withheld payment of Brown’s maintenance and cure benefits.

Brown sued Parker for (1) negligence under the Jones Act, (2) unseaworthiness under general maritime law, (3) retaliatory discharge, (4) maintenance and cure benefits, and (5) compensatory damages resulting from Parker’s failure to pay such benefits. Parker countered that Brown was not entitled to maintenance and cure on the ground that he willfully concealed his past back injuries, and that Brown was not entitled to compensatory damages because Parker withheld benefit payments in reliance upon a reasonable defense. The jury ultimately returned a verdict finding for Brown in part.³ Specifically, the jury found that Brown was injured due to the negligence of Parker,⁴ that Brown was entitled to maintenance and cure because he did not willfully conceal his medical condition, and that Brown was entitled to compensatory damages because Parker unreasonably withheld maintenance and cure benefits.

By Order and Reasons dated July 30, 2003, the district court denied Parker’s motion for judgment as a matter of law and, alternatively, for a new trial.⁵ The district court later entered judgment against Parker for $414,840.

Parker timely appeals, contending that Brown willfully concealed his medical condition from Parker, and that Parker’s withholding of Brown’s maintenance and cure benefits was reasonable.

II. STANDARD OF REVIEW

This Court reviews factual findings of a jury for clear error. In re Gerhardt, 348 F.3d 89, 91 (5th Cir.2003). Under a clear error standard, this Court will reverse “only if on the entire evidence, we are left with a definite and firm conviction that a mistake has been made.” Otto Candies, LLC v. Nippon Kaija Kyokai Corp., 346 F.3d 530, 533 (5th Cir.2003).

III. DISCUSSION

A. The jury clearly erred when it found that Brown had not willfully concealed his medical condition.

Parker contends that the jury committed clear error by finding that Brown had not willfully concealed his prior back injuries when he completed Parker’s medical questionnaire. A Jones Act employer is entitled to investigate a seaman’s claim for maintenance and cure benefits. McWilliams v. Texaco, Inc., 781 F.2d 514, 518-20 (5th Cir.1986). An employer is allowed to rely on certain legal defenses to deny these claims. McCorpen v. Cent. Gulf Steamship Corp., 396 F.2d 547, 548-49 (5th Cir.1968). One such defense is that the injured seaman willfully concealed from his employer a preexisting medical condition. Id. In order to establish “willful concealment,” an employer must show that:

(1) the claimant intentionally misrepresented or concealed medical facts;

(2) the non-disclosed facts were material to the employer’s decision to hire the claimant; and

(3) a connection exists between the withheld information and the injury complained of in the lawsuit.

Id.; Deisler v. McCormack Aggregates, Co., 54 F.3d 1074, 1080-81 (3d Cir.1995). Parker contends that the jury committed clear error by not finding that each one of these elements was established by a preponderance of the evidence.

(1) Intent to conceal

Parker’s medical questionnaire asked whether Brown had suffered “Past or Present Back and Neck Trouble.” Brown answered this question in the negative. Parker contends that this response constitutes an intentional concealment of a medical condition because Brown: (1) had been treated for back injuries on two occasions prior to the time he completed Parker’s medical questionnaire; (2) had been fired from LeTourneau for falsely reporting an on-the-job accident, filing a false accident claim, and denying that he had suffered from prior “Back Trouble” on Le-Tourneau’s employment medical questionnaire; and (3) misstated during his deposition that he had not sought medical care while working at LeTourneau. These facts — which tend to show that Brown had sustained back injuries prior to completing Parker’s medical questionnaire, that Brown knew at the time he completed the questionnaire that these injuries constituted “back trouble” in the eyes of a past employer, and that Brown habitually lied about his prior injuries — were established by Parker at trial. The jury nonetheless found that Brown had not intended to conceal his medical condition from Parker.

Brown now offers two explanations for the jury’s finding that he did not intentionally conceal his medical condition. First, he alleges that the question at issue on the Parker medical questionnaire is compound. Second, he argues that he did not understand the definition of “trouble.” Both arguments fail.

a. Compound question

As stated supra, the question at issue on Parker’s medical questionnaire asked whether Brown had “Past or Present Back and Neck Trouble” (emphasis added). Brown points out that this question is compound, and argues that a prospective employee could answer it in the affirmative only if he had suffered frqm both back and neck trouble.⁶ Brown’s argument is not well-taken. Because Brown did not argue this point to the district court or the jury, it is waived on appeal. See, e.g., Greenberg v. Crossroads Sys., 364 F.3d 657, 669 (5th Cir.2004). The briefs cite no testimony to show that Brown in fact interpreted the question to be compound, and Brown points to none. The jury could not have rationally inferred that Brown did not lie on the questionnaire. In spite of the arguably ambiguous nature of the question (and the fact that Brown had never suffered a neck injury), Brown’s acknowledgment that he had been fired from LeTour-neau due to his “back trouble” establishes that he intentionally concealed his medical condition on Parker’s medical questionnaire.

b. Brown did not know his injuries constituted “trouble”

To further support his claim that he did not intend to conceal his medical condition from Parker, Brown alleges that he did not understand that his back injuries constituted back “trouble.” He states that he instead interpreted “trouble” to indicate serious injuries such as a broken disc or neck.

When questioned at trial about his appointments with Dr. Johnston that preceded his employment with Parker, Brown explained that he had been treated for a “sore back” and a “pulled muscle”:

Q. Were you having any type of back trouble when you filled out the Parker Application?

A. I just had that pulled muscle, you know. They scanned me about that right now, so I guess I had to say I had a back pulled muscle. It’s back troubles, they said.

Q. What did you think when you read on the application “Had you ever had back trouble,” what came to your mind?

A. . Disc and all of that, you know, broke back, a disc, neck being broke or something, the injury is a real one instead of a pulled muscle.

Trial Tr. at 109 (emphasis added).

Brown acknowledged on cross-examination, however, that he had been fired from his job at LeTourneau “for [his] back trouble.”

Q. Why were you fired from LeTour-neau?

A. For my back trouble.

Id. at 118 (emphasis added).

- This admission seems to demonstrate that Brown recognized, only two months before he completed the Parker medical questionnaire, that his minor injuries, i.e., pulled muscles and back strains, rose to the level of “back trouble” in the, eyes of a past. employer. Nonetheless, the district court observed that Brown was “a former special education student who exhibited a non-confrontational demeanor at trial [and] was subjected to rigorous cross-examination and ... was repeatedly accused by defense counsel of lying.” It is certainly within the jury’s discretion to interpret liberally the testimony of inarticulate or intimidated witnesses. Delano-Pyle v. Victoria County, Texas, 302 F.3d 567, 572 (5th Cir.2002). Because the jury may have discounted Brown’s trial testimony for the same reasons cited by the district court, Brown’s characterization of his prior injuries as “trouble” on cross-examination, without more, may have been insufficient to show that Brown knew that he had “back trouble.”

Brown’s understanding of his prior injury as “trouble,” however, seems to have been established by the circumstances surrounding his termination from LeTour-neau. Brown was fired for answering “No” on LeTourneau’s medical questionnaire when asked whether he had suffered from “back trouble.” At trial, Brown testified to the following:

Q. And I believe that you had testified earlier that the reason they, at Le-Tourneau, got rid of you, didn’t want you to work there anymore, is because LeTourneau found out about your past; they found out about your lying on the application, or whatever, is that right?

A. Yes, sir.

Q. And the reason LeTourneau, Mr. Fant at LeTourneau came to you and'said “Hey, we can’t have you working here,” is because he showed you the- employment application where you checked off “No,” about prior back problems, ’ right?

A. Yeah.

Q. .And he said “I can’t have anybody working here like that who misrepresents the application,” right? He told you that?

A. Yes.

Id. at 115-16. Such testimony shows that Brown knew he had been fired from Le-Tourneau for denying that he had “back trouble.” This renders implausible Brown’s explanation that, two months later, he did not understand the definition of “trouble” on Parker’s medical questionnaire.

It is clear 'that Brown suffered previous back injuries and that he was fired from a previous job for not disclosing his “back trouble.”

(2) Materiality and causality

The other two elements of the “willful concealment” inquiry, i.e., materiality and causality, were clearly established at trial. The fact .that an employer asks a specific medical question, on an application, and that the inquiry is rationally related to the applicant’s physical ability to perform his job duties, renders the information material for the purpose of this analysis. See McCorpen, 396 F.2d at 549. Brown’s history of back injuries is the exact type of information sought by employers like Parker. And Brown, by his own admission, realized that information about his back condition had been important to one of his past employers. Brown’s counterargument — that he could perform heavy labor tasks for his first few months on the job— is irrelevant:' Parker based its hiring decision (at least, in part) upon whether applicants had “Past or Present Back and Neck Trouble,” not whether they could, on the date of their application, complete difficult manual labor tasks. Materiality was established at trial.

Further, Parker demonstrated that a nexus existed between Brown’s preexisting-injury and his injury supporting this lawsuit. The requisite causal link is established if the preexisting injury and the new injury are located in the same part of the body. Caulfield v. Kathryn Rae Towing, 1989 WL 121586, at *2 (E.D.La. June 6, 1989); Lancaster Towing, Inc. v. Davis, 681 F.Supp. 387, 888-89 (N.D.Miss.1988). The testimony at trial established that Brown suffered a lumbar strain in 1998 and 2000, with possible disc herniation, at L-4/L-5 and L-5/S-1. Even Dr. Grant Dona (“Dr. Dona”), Brown’s expert witness, acknowledged that Brown’s prior back strains were to the same lumbar-spine region as his current back problem. Because Brown’s injuries were to the same location of the lumbar spine, the causal link between the allegedly concealed information and the new injury was established at trial.

Parker established at trial: (1) Brown’s intent to conceal his medical condition; (2) that the non-disclosed facts were material to the employer’s decision to hire the claimant; and (3) a connection existed between the withheld information and the injury complained of in the lawsuit. As a result, the judgment of the district court that Brown is entitled to maintenance and cure benefits should be reversed.

B. The jury clearly erred when it found that Parker’s withholding of maintenance and cure benefits had been unreasonable.

Parker contends that the jury clearly erred by finding that Brown acted unreasonably in withholding Brown’s maintenance and cure benefits. This Court has recognized that

there is an escalating scale of liability: a shipowner who is in fact liable for maintenance and cure, but who has been reasonable in denying liability, may be held liable only for the amount of maintenance and cure. If the shipowner has refused to pay without a reasonable defense, he becomes liable in addition for compensatory damages. If the shipowner not only lacks a reasonable defense but has exhibited callousness and indifference to the seaman’s plight, he becomes liable for punitive damages and attorney’s fees as well.

Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987) (emphasis added).

Parker offers two explanations for its failure to pay maintenance and cure: (1) Brown willfully concealed his prior medical condition, and (2) Brown’s injury was not sustained on Parker’s vessel. The question before us is whether the jury clearly erred by finding that Parker’s reliance on these explanations was unreasonable.⁷

We hold that the jury erred in finding that it was unreasonable for Parker to withhold benefits because Parker’s refusal was based on a reasonable defense: that Brown had willfully concealed his medical condition. The jury could not rationally have determined that Parker was unreasonable in relying on this defense, so their finding constitutes clear error. Accordingly, we need not reach Parker’s second explanation for withholding benefits.

IV. CONCLUSION

Because we conclude that the jury’s finding that Brown did not willfully conceal his back injuries was a clear, error, the jury’s '-verdict is hereby VACATED, and the matter DISMISSED WITH PREJUDICE.

1 . The employer also argues that the district court improperly instructed the jury about special damages, and that the seaman improperly invoked the Golden Rule during closing arguments. Because we agree with the first two arguments, however, we need not reach these issues.

2 . The form stated above Brown's signature: FAILURE TO ANSWER TRUTHFULLY MAY RESULT IN THE FORFEITURE OF WORKER'S COMP BENEFITS. I have read the above statements and the answers to the above questions and I certify them to be true and correct.

3 . The jury, however, agreed with Parker on the claims of unseaworthiness and retaliatory discharge.

4 . The jury found that, due to Brown’s contributory negligence, Parker was only 75% liable for Brown’s injuries.

5 . The district court, however, did grant Parker's motion for remittitur, reducing the jury's award for future medical expenses from $150,000 to $100,000.

6 . While the question is compound, the manner in which it is set forth on the questionnaire, and Brown's responses, belie Brown’s assertion that he treated it as a compound question. The questionnaire asks: "Have you had or do you now have any of the following? If so, what and when?”' It then lists a variety of conditions, and a space to check “Y” or "N”. The item at issue in this case occupies two lines on the questionnaire. The first line reads: "Past or Present Back and”; the second line reads: "Neck Trouble”. Brown checked the “N” box for each line. App. to Appellant's Br. at Tab 3.

7 . Parker points out that Brown did not even seek attorney's fees, and thus "Parker's actions were not attacked as arbitrary and capricious by Brown.” This fact, while true, is irrelevant to the issue before this Court. Compensatory damages do not turn upon the employer's arbitrariness and capriciousness, but rather upon the employer’s unreasonableness. See Morales, 829 F.2d at 1358 ("If the shipowner, in failing to pay maintenance and cure, has not only been unreasonable but has been more egregiously at fault, he will be liable for punitive damages and attorney's fees.”). Because one who acts merely unreasonably is less culpable than one who acts arbitrarily and capriciously, the fact that Brown did not seek attorney's fees is beside the point.