*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this opinion should not be published and is not precedent except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.

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. 
2

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
 

1The 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.

3

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
4

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
5

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.