When Plaintiff was hired, he completed a pre-employment medical questionnaire.  Plaintiff failed to disclose his serious preexisting back problems, affirmatively answering “no” to several inquiries about those problems.  After working for Employer for a few months, Plaintiff allegedly injured his back.  Employer paid maintenance and cure for five years.  After Plaintiff filed suit for additional maintenance and cure, Employer learned through discovery about Plaintiff’s extensive back problems.  Employer won a partial summary judgment on a McCorpen defense, which extinguished liability for maintenance and cure because  Plaintiff’s failure to disclose the prior back problems. Then, Employer filed a counterclaim against Plaintiff to recover the maintenance and cure payments already made.  The district court issued an opinion awarding Employer restitution for the sums previously paid. The Fifth Circuit, in a 2-1 opinion, determined that the district court erred by awarding restitution, no matter the egregious facts concerning Plaintiff’s maintenance and cure claim.  In short, restitution is not availableRead more