Norman Cole

Longshore Recent Caselaw Update

Cole, Norman_webBy: Norman Cole There have not been many noteworthy cases issued during the last several months. Jackson v. Ceres Marine Terminals, Inc, 2014 WL 749188 (BRB 14-0071, 2014), held an opinion offered by an OWCP sponsored medical examiner is not dispositive. (If it is not dispositive, it would be better to select the examiner instead of rolling the dice on the OWCP’s choice.) Stovall v. Total Terminals, LLC, 2015 WL 1010141 (BRB 14-0666, 2015) held one employer in a multi-party claim can separately settle its claim per Section 8(i) without the consent of the other defendants. (We already knew this, but at least we now know the BRB agrees.) An unpublished decision, Kogut v. Electric Boat Corporation,… Continue reading

LHWCA Quarterly Update

norman coleSchwirse v. Director, OWCP, __ F.3d ___, 2013 WL 3840332 (9th Cir 2013). Longshoreman drank alcohol when at work and fell on concrete and a metal slab. Claimant argued the injury was not solely due to intoxication because the result of the fall was worse because of the hard surface on which he fell. The Court disagreed. By using the term “injury” Congress intended to incorporate the harmful physical consequences of the event. Absence evidence the surface material was unforeseeably defective, the legal cause was limited to the reason for the fall and the foreseeable consequences of that fall. McGarey v. Electric Boat Corporation, 2013 WL 476117 (BRB 12-0672, 13-0020, 2013). Claimant had an… Continue reading

Longshore Recent Caselaw Update

norman coleHere are a few interesting, if not noteworthy Longshore decisions for employers to be aware of. When a worker sustains an injury and produces evidence the injury could have been caused by work, the injury is presumed compensable, per §20(a), until the employer produces affirmative evidence the injury is not work related. In Insurance Company of State of Pennsylvania v. Director, OWCP, the 5th Circuit held the §20(a) presumption does not apply to secondary injuries, such as an infection that develops as a consequence of a work related surgery but was not directly caused by the on the job injury. Instead, the claimant must prove the secondary injury is the natural and unavoidable consequence of the initial injury.… Continue reading

Longshore Act Update

norman coleAs head of the SBH Longshore practice area, I publish a quarterly summary of recent LHWCA decisions (Benefits Review Board, Courts of Appeal, Supreme Court, and occasionally an ALJ decision). The most recent edition is available on our website, sbhlegal.com. One of the most significant decisions in the last few months probably is the 9th Circuit’s decision in Price v. SSA, which held interest on past due compensation should be based on the one year T-bill rate, but it should be compounded annually, rather than paid as simple interest. When interest is due on unpaid weekly payments, more interest is due on the first week past due than on the last week past due. There is… Continue reading