Your Employer Is Using a Prior Injury to Deny Maintenance and Cure: McCorpen Overreach Explained

The Short Answer

If your employer cut off your maintenance and cure after pointing to some prior injury, illness, or medical record, you are looking at the McCorpen defense. Employers lean on it hard, and they overreach with it constantly. Here is the part they do not tell you: a prior medical condition does not automatically end your right to maintenance and cure. The defense has three strict requirements, the employer has to prove all three, and most overreaching cutoffs are missing at least one.

You can keep your benefits even if you had a prior condition — as long as the employer cannot prove that you intentionally hid something it specifically asked about, that the thing you hid actually mattered to the hiring decision, and that the thing you hid is connected to the injury you have now. If any one of those is missing, the defense fails and the duty to pay continues. A great many McCorpen cutoffs are pure overreach, and they do not hold up. (For the bigger picture of what maintenance and cure is and what you are owed, start with the maintenance and cure overview.)

What an Overreaching McCorpen Cutoff Looks Like

• Your employer found an old medical record and stopped paying — but it never actually asked you about that condition before hiring you.
• You disclosed what the hiring paperwork asked, and now the employer says you should have volunteered more.
• The prior condition is in a totally different part of your body than your current injury.
• The old condition was minor or long resolved and would not have changed whether you got the job.
• The employer stopped paying first and went looking for a reason afterward.

Every one of these is a situation where the McCorpen defense usually does not work — even though the employer is using it to justify not paying you.

Can My Employer Deny Maintenance and Cure for a Pre-Existing Condition?

Not automatically. Having a prior condition is not, by itself, a reason to lose maintenance and cure. The employer can only use a prior condition against you if it proves the full McCorpen defense — and the law puts that burden entirely on the employer, not on you.

The three things the employer must prove are intentional concealment, materiality, and a causal connection. The full, element-by-element breakdown is on the McCorpen defense page. The short version of why overreach fails is below.

They Never Asked, So There Was Nothing to "Conceal"

The first thing the employer has to prove is that you intentionally concealed a medical condition. Concealment almost always means you failed to answer a specific question honestly. You do not have a duty to walk into a hiring office and recite your entire medical history unprompted.

So if the pre-employment paperwork never asked about prior back problems, and you said nothing about an old back strain, you did not conceal anything — there was no question to answer. Employers routinely ignore this. They find a prior condition in your records, assume you should have mentioned it, and treat your silence as a lie. But silence is not concealment when no one asked the question. This is one of the most common ways a McCorpen cutoff collapses.

The same goes for honest answers to vague questions. If a form asked loosely about "prior injuries" and you disclosed what a normal person would understand it to be asking, you did not conceal anything by not cataloging every minor ache you ever had.

The Old Condition Has Nothing to Do With My Current Injury

This is the strongest overreach argument, and employers ignore it the most. Even if you did conceal a material condition, the employer still cannot deny maintenance and cure unless the concealed condition is causally connected to the injury you are claiming now.

If you did not disclose an old shoulder problem and then hurt your knee in an accident on the vessel, the shoulder has nothing to do with the knee. McCorpen does not bar your knee claim. The defense is specific to the concealed condition; it is not a blanket forfeiture of all your benefits because you were once less than complete about something unrelated.

An employer that treats any prior concealment as a reason to deny everything — without connecting the old condition to your current injury — has skipped a required element. That cutoff is overreach, and it does not stand.

The Condition Would Not Have Changed Whether I Got Hired

The second element the employer must prove is materiality: that the condition would actually have affected the hiring decision. A long-resolved problem, a minor complaint that left no lasting limitation, or something that has no bearing on the physical demands of the job is not material just because the employer would now prefer not to pay.

Employers like to claim "we never would have hired anyone with that history." That boilerplate gets scrutinized — especially when the employer's actual hiring record, or how it treated similar applicants, says otherwise. Materiality is about whether the condition genuinely mattered, not about whether the employer can invent a reason it might have cared now that there is an injury claim on the table.

Why Maintenance and Cure Tilts in Your Favor

Maintenance and cure is one of the oldest duties in maritime law, and the courts resolve doubts in the seaman's favor — not the employer's. That tilt matters when an employer asserts a shaky McCorpen defense. The employer cannot manufacture a "dispute" out of ordinary uncertainty and use it as cover for not paying. Where the supposed basis for the cutoff depends on reading an ambiguity against you, that is the opposite of what the law allows.

It also matters because of what an overreaching cutoff can cost the employer. A McCorpen defense built on a missing element is not just a losing argument — it can turn an ordinary nonpayment dispute into a bad-faith problem. An employer that stops paying on a defense it should have known was weak risks attorney's fees and, in a serious case, punitive damages. Those consequences are explained on the willful-and-wanton denial page, and the way to force payment while the dispute is ongoing is covered on the compelling payment page.

What to Do If Your Benefits Were Cut Off Over a Prior Condition

• Do not assume the cutoff is valid. A prior condition is not an automatic loss of benefits. Most overreaching cutoffs are missing a required element.
• Find out exactly what the employer is relying on. Which condition? Was there a specific question about it in your hiring paperwork? Is it even related to your current injury?
• Keep your treatment going and keep records. A treating physician's recommendation for continued care matters, and the documentary record is often where these disputes are won.
• Do not sign anything resolving your claim without understanding what you are giving up.
• Get the cutoff reviewed. Because the employer carries the burden on every McCorpen element, defeating a single element defeats the whole defense — and you do not have to prove your case in full to keep your benefits.

When the Case Has More Than a McCorpen Fight

A McCorpen cutoff is sometimes the whole problem and sometimes one piece of a larger case — a disputed seaman-status question that determines whether maintenance and cure is owed at all, a separate bad-faith claim arising from how the employer handled the cutoff, or a vessel injury that also gives rise to negligence and unseaworthiness claims. When the concealment issue is tangled up with those other questions, it is no longer just about an old medical record. 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, employers stretch the McCorpen concealment defense far past its limits, using any prior medical note — however old or irrelevant — to cut off maintenance and cure. The defense has strict elements that frequently are not met: an intentional concealment, materiality to the hiring, and a causal link to the injury. Where those are missing, the overreach fails.