IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30499
Summary Calendar
ROBERT R BUSH
Plaintiff-Appellee
versus
DIAMOND OFFSHORE COMPANY; DIAMOND MANAGEMENT
OFFSHORE COMPANY
Defendants-Appellants
Appeal from the United States District Court
For the Eastern District of Louisiana
USDC No. 97-CV-3176-L
May 3, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Robert Bush was injured on June 17, 1997, while working as a
roustabout for Diamond Offshore Management. Bush was injured while
helping to unload pallets from the service boat M/V Paula K to the
Modu Ocean Star, a semi-submersible drilling rig. Bush was holding
a tag line used to stabilize material being unloaded from the
service boat when his leg was caught in the line. Bush was hoisted
into the air, swung into the vessel's bulwark and fell, landing on
his head.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Bush asserted claims against Diamond under the Jones Act and
general maritime law. After a bench trial, the district court
entered judgment in Bush's favor and awarded him $194,000 for
medical expenses, lost wages and pain and suffering. Diamond
appeals, arguing that the district court ignored the testimony of
a court-appointed expert and that its verdict was unsupported by
the evidence. Diamond also claims the court erred in determining
that Bush's failure to disclose prior injuries did not forfeit his
right to maintenance and cure. We AFFIRM.
We review the district court's findings of fact for clear
error and its conclusions of law de novo. See Silmon v. Can Do II,
Inc., 89 F.3d 240, 242 (5th Cir. 1996).
A finding is clearly erroneous when, "although there is enough
evidence to support it, the reviewing court is left with the
definite and firm conviction that a mistake has been committed and
that the district court could not permissibly find as it did." See
Bertram v. McMoran, Inc., 35 F.3d 1008, 1018 (5th Cir.
1994)(quoting Noritake Co., Inc. v. M/V Hellenic Champion, 627 F.2d
724, 728 (5th Cir.1980)).
We are not left with a conviction that the district court
erred in its factual findings. The court considered evidence
presented by the physicians who examined Bush's physical condition
and psychiatrists who examined his mental state. Our examination
of the record shows that the district court carefully considered
the pertinent evidence in reaching its conclusions. All of the
examining physicians except Dr. Pisarello agreed that the MRI
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revealed cervical spine abnormalities at the C5-6 and C6-7 discs.
Drs. Van Bolden and Landry1 noted an inconsistency between Bush's
complaints of pain on his left side when the MRI findings showed
abnormalities on the right side. Dr. Phillips disagreed, believing
that the cervical abnormalities would cause symptoms on both sides.
Dr. Landry also testified on cross-examination that Bush's EMG was
abnormal on the left side and that he could not explain this
diagnostic finding.
The district court found that Bush had complained at different
times of pain on his right and left sides and that the type of
injury he suffered was subject to waxing and waning of symptoms.
These findings were supported by the testimony of Dr. Landry on
cross-examination.
The physicians disagreed about Bush's need for further medical
treatment. Drs. Phillips and Murphy recommended surgery, and
others recommended more conservative treatment.
The district court considered Bush's history of mental
illness. Drs. Landry and Van Bolden believed that Bush's
complaints of pain were out of proportion to his physical condition
and that his complaints could be attributed to post-traumatic
stress disorder. Two psychiatrists, Drs. Mielke and Roniger,
agreed that Bush suffers from anxiety and post-traumatic stress
1
The district court's opinion shows that it considered the
testimony of Dr. Landry, a court-appointed expert. Diamond
Offshore's claim that the court ignored Dr. Landry's testimony is
without merit.
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disorder. The court found that Bush's mental illness was not
aggravated by the accident.
The district court did not commit clear error in its
consideration of the medical evidence presented. We are not left
with the conviction that a mistake was made.
The district court awarded Bush maintenance and cure damages
under general maritime law. These damages were limited to
maintenance and cure that Diamond paid voluntarily until it
discovered disputes among the physicians who examined Bush.
Diamond argues that Bush was not entitled to those damages
because he misrepresented his medical history on his employment
application and he had suffered previous injuries to his neck and
lower back. A seaman who intentionally misrepresents or conceals
medical facts from an employer while applying for work will forfeit
his right to seek maintenance and cure if the misrepresented or
nondisclosed facts are material to the employer's decision to hire
him and if there is a causal connection between the withheld
information and the injury which is eventually sustained. See
McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 559 (5th
Cir. 1968); see also Wactor v. Spartan Transp. Corp., 27 F.3d 347,
352 (8th Cir. 1994)(adopting McCorpen standard).
Diamond Offshore asked Bush in a pre-employment questionnaire
whether he had any back injuries, hospitalization or any disabling
illness or injury, hospitalization or back problems. Bush answered
that he had a back injury from an automobile accident in 1986, and
he answered the other questions negatively. In fact, Bush had
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other accidents that resulted in back and neck injuries, and he had
been hospitalized for mental illness while in the U.S. Air Force.
The district court found that Diamond failed to show that Bush
intentionally concealed medical facts from Diamond or that there
was any causal connection between any concealed medical facts and
his current injury. Bush testified at his trial, and the district
court had the opportunity to evaluate his credibility. We cannot
say that the district court committed clear error in these
findings. While it is clear that Bush failed to report medical
facts, we are not convinced that the district court erred in
finding that he did not intentionally conceal those facts from his
employer. Furthermore, "the defense that a seaman knowingly
concealed material medical information will not prevail unless
there is a causal link between the pre-existing disability that was
concealed and the disability incurred during the voyage."
McCorpen, 396 F.2d at 549. As the district court noted, Bush was
asymptomatic when he began work for Diamond, and Diamond failed to
show that Bush's cervical condition predated the accident aboard
its vessel. The court's finding that Diamond failed to prove
causation is not clearly erroneous.
The evidence was sufficient to support the judgment, and
Diamond failed to prove its defense to maintenance and cure. We
AFFIRM the judgment of the district court.
AFFIRMED.
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