The McCorpen Defense to Maintenance and Cure — and Where Employers Overreach

The Short Answer

Maintenance and cure is owed without regard to fault, which makes it hard for an employer to escape. The main way an employer tries is the McCorpen defense: the argument that the seaman concealed a pre-existing medical condition during the hiring process, and therefore forfeited the right to maintenance and cure for that condition. Named after the Fifth Circuit's 1968 decision in McCorpen v. Central Gulf Steamship Corp., it is the most common — and the most commonly abused — defense in maintenance-and-cure litigation.

The defense is real, but it is narrow. The employer must prove three separate things, and all three must be present. The seaman must have intentionally concealed or misrepresented medical facts; those facts must have been material to the employer's hiring decision; and there must be a causal connection between the concealed condition and the injury for which maintenance and cure is now claimed. Miss any one of the three and the defense fails. Employers regularly assert McCorpen when one or more of the elements is plainly absent — when no medical question was ever asked, when the prior condition has nothing to do with the current injury, or when there was no concealment at all. Recognizing that overreach is the difference between a seaman who loses benefits and one who keeps them. (For the broader picture of the duty this defense tries to cut off, see the maintenance and cure overview.)

The McCorpen Defense at a Glance

To defeat maintenance and cure under McCorpen, the employer must prove all three of the following:

1. Intentional concealment or misrepresentation. The seaman intentionally concealed or misrepresented a medical condition — either by failing to disclose it in response to a specific medical inquiry, or by affirmatively lying about it.
2. Materiality. The non-disclosed facts were material to the employer's hiring decision — meaning the employer would not have hired the seaman, or would have hired on different terms, had it known.
3. Causal connection. There is a causal link between the concealed condition and the injury or illness for which maintenance and cure is now sought.

If the employer cannot prove any one of these, the McCorpen defense does not apply, and the duty to pay continues.

Element One: Intentional Concealment

The first element is concealment, and it is not satisfied by mere silence. The seaman must have intentionally failed to disclose something — and the obligation to disclose has to come from somewhere.

In practice, this almost always means the employer asked. Where a medical questionnaire or pre-employment examination poses a specific question, and the seaman answers falsely or omits a condition the question called for, the concealment element can be met. Courts treat this as an essentially objective inquiry: was there a specific medical inquiry, and did the seaman fail to disclose information that the inquiry plainly called for?

The corollary is the most important point for spotting overreach: where the employer never asked, there is generally nothing to conceal. A seaman has no free-floating duty to volunteer every prior ache, treatment, or diagnosis. If the pre-hire paperwork did not ask about prior back problems, a seaman who said nothing about a years-old back strain did not "conceal" it within the meaning of McCorpen. Employers nonetheless assert the defense in exactly this situation — pointing to a prior medical record the seaman never lied about and was never asked about. That is not concealment; it is hindsight.

Equally, an honest but incomplete answer to a vague question is not the same as intentional misrepresentation. Where a form asks loosely about "any prior injuries" and the seaman discloses what a reasonable person would understand the question to be asking, the failure to catalog every minor historical complaint is not the kind of intentional concealment McCorpen requires.

Element Two: Materiality

Even if a seaman did fail to disclose a condition in response to a real question, the defense still fails unless the concealed information was material to the hiring decision. Materiality asks whether the undisclosed condition would have mattered to the employer — whether the employer would have declined to hire, or hired on different terms, had it known.

Materiality is where many McCorpen assertions quietly collapse. The fact that a seaman had some prior medical history does not make that history material. A long-resolved condition, a minor complaint that left no lasting limitation, or a treatment that has no bearing on the physical demands of the job is not automatically material simply because the employer would now prefer not to pay. Courts look at whether the condition was the kind of thing that genuinely factors into a hiring decision for the position in question — not whether the employer, with the benefit of an injury claim in front of it, can construct a reason it might have cared.

Employers sometimes try to prove materiality by pointing to a general company policy of rejecting applicants with any history of a given condition. That can support materiality, but it is not a magic phrase. A boilerplate assertion that "we would never have hired anyone with a prior back complaint" invites scrutiny — particularly where the employer's actual hiring practices, or its treatment of comparable applicants, tell a different story.

Element Three: Causal Connection

The third element is the one employers most often ignore, and it is frequently the cleanest way to defeat the defense. Even a material, intentionally concealed condition does not bar maintenance and cure unless there is a causal connection between that concealed condition and the injury for which maintenance and cure is now claimed.

The classic example: a seaman conceals a prior shoulder injury, then later injures a knee in an unrelated incident aboard the vessel. The concealed shoulder condition, whatever its materiality, has no causal relationship to the knee injury. McCorpen does not bar maintenance and cure for the knee. The defense is condition-specific and injury-specific; it does not operate as a blanket forfeiture of all future benefits because the seaman was once less than forthcoming about something.

This is the element that exposes the most aggressive overreach. An employer that treats any prior concealment as a reason to deny all maintenance and cure — without connecting the concealed condition to the present injury — has skipped a required element. The causal-connection requirement keeps McCorpen tethered to its purpose: it prevents a seaman from obtaining benefits for a condition the seaman lied about to get hired. It does not give the employer a windfall defense to unrelated injuries.

Where Employers Overreach

Pulling the elements together, a pattern emerges: McCorpen is overreached whenever an employer asserts it without all three elements actually present. The recurring situations are a cutoff where no specific medical inquiry was ever made, a prior condition that was immaterial to hiring, a concealed condition with no causal connection to the present injury, an honest disclosure recharacterized after the fact as concealment, and an "assert first, justify later" cutoff used to stop payment while the employer combs records for support. Each of these is examined from the injured worker's standpoint — what the cutoff looks like and what to do about it — on the McCorpen overreach page.

The doctrinal point that ties them together is the conjunctive structure set out above: because the employer must prove every element, a defense missing any one of them fails. And because maintenance and cure resolves ambiguities in the seaman's favor, a McCorpen defense built on a strained reading of an element does not just fail on the merits — it can convert an ordinary nonpayment dispute into a willful-and-wanton problem for the employer, with the attorney's-fee and punitive exposure described on the compelling payment and willful-and-wanton denial pages.

How the Defense Is Actually Litigated

When an employer raises McCorpen, the seaman's response works element by element. Was there a specific medical inquiry, and what exactly did it ask? Did the seaman's answer actually conceal something the question called for, or is the employer reading a duty into a question that was not there? Would the condition genuinely have changed the hiring decision, or is materiality being asserted by boilerplate? And — most powerfully — is the concealed condition causally connected to the present injury at all, or is the employer trying to bar an unrelated claim?

Because the employer bears the burden on every element, the seaman does not need to disprove the defense wholesale. Defeating a single element defeats the defense. That structure is what makes McCorpen, properly understood, a far narrower tool than employers often treat it as — and it is why a seaman confronted with a McCorpen cutoff should not assume the benefits are gone.

When the Case Has More Than a McCorpen Fight

A McCorpen dispute is sometimes the whole case and sometimes one front in a larger one. Many harder cases involve a concealment defense layered on top of other complications: a contested seaman-status finding that determines whether maintenance and cure is even owed, a separate willful-and-wanton claim arising from how the employer handled the cutoff, a choice-of-law question where a foreign-flagged vessel or foreign-national crew puts in issue which body of law governs the duty, or an OCSLA platform injury that brings its own coverage questions.

When the McCorpen issue is entangled with those other questions, the analysis is no longer just about whether the seaman concealed something — it is about how concealment interacts with status, bad-faith exposure, and jurisdiction. The firm's work on complex maritime cases, including a willful-and-wanton maintenance-and-cure verdict affirmed on appeal, is collected there.

In practice

In practice, McCorpen is the employer's main tool for denying maintenance and cure by claiming the worker concealed a prior condition. But the defense requires intentional concealment of information material to the hiring decision and a connection to the current injury — a demanding test that a routine, disclosed, or unrelated medical history does not satisfy.