The following is a review of recent relevant Longshore and Harbor Workers’ Compensation Act caselaw. There were relatively few decisions and none created new law with the possible exception of the 4th Circuit’s decision in Metro Machine Corporation. The Benefits Review Board issued 13 LHWCA decisions in November, 5 in December, and has not posted January decisions on its website. All of the Board decision were designated as unpublished. They are instructive but do not set precedent.
Average Weekly Wage – §10(c)
No mandate to base average weekly wage exclusively on overseas earnings.Kuza v. Global Linguist Solutions, LLC, BRB 16-0227, 12/8/16 (unpublished).
In 2012, for three and one-half months, claimant worked for UPS in the USA but quit because he thought the effort was not worth the pay. He otherwise was unemployed until November 2012, when he went overseas to work for employer as an interpreter. This ended June 3, 2013 when his contract ended. He declined an offer to remain overseas for less pay and instead returned to the USA. He remained unemployed until he received another contract offer from employer for an overseas position elsewhere. He developed tuberculosis due to his work in Iraq. The ALJ calculated average weekly wage by dividing stateside and overseas earnings in the year before his last day of work by 52 (a “blended” approach). Claimant argued the ALJ erred by applying as precedent the decision in Service Employees International, Inc. v. Director, OWCP, 2013 WL 943840 (S.D. Tex. 3/11/13), vacating K.S. [Simmons] v. Service Employees Int’l, Inc., 43 BRBS 18, aff’d on recon. en banc, 43 BRBS 136 (2009). Instead, claimant argued the board’s en banc decision in Simmons required calculation of AWW based solely on claimant’s overseas earnings. The Board disagreed. It interpreted prior caselaw as holding overseas earnings should be used only if the worker was enticed to work overseas in a dangerous environment in return for higher wages under a long term contract. Here, claimant’s employment did not meet that standard as he voluntarily worked in the USA and had a short term contract. A blended approach was rational and supported by substantial evidence.
Causation – §20 Presumption
Consequential injury claims subject to §20 presumption but claimant must produce some evidence the primary injury could have naturally or unavoidably caused, aggravated, or accelerated the secondary injury. Metro Machine Corporation v. Director, OWCP, 2017 WL 242986 (4th Cir. 15-2525 1/20/17).
An injury is defined as an accidental injury or death arising out of and in the course of employment and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury. Claimant’s primary injury was COPD and his secondary injury was rib fractures, reportedly due to coughing due to COPD and steroids prescribed for COPD. The ALJ concluded both conditions were compensable because Employer had not rebutted the §20 presumption. On appeal, the Board affirmed the ALJ’s decision. Employer argued the §20 presumption did not apply to secondary conditions. The Court disagreed. The presumption applies to all types of claims. Per US Industries v. Director, OWCP, 455 US 608 (1982), the presumption applies only to claims of injuries that are actually made, and a claim must include a primary injury which, by definition, must arise during work. A secondary injury must naturally or unavoidably result from the primary injury, so claimant must produce evidence the primary injury could have naturally or unavoidably caused, aggravated, or accelerated the fracture. It is a disjunctive requirement – naturally or unavoidably. Based on the ALJ’s findings the Court reasoned it would be a futile exercise to remand and therefore affirmed the prior decision.
Evidence there could have been working conditions that could have caused disease and death insufficient to invoke the §20(a) presumption. Curran v. Thorpe Insulation Corporation, BRB 16-0099, 11/10/16 (unpublished).
Decedent died due to an asbestos related disease. The surviving spouse filed a claim for death benefits with three former employers: Thermal Services (1994-1997), Owens Corning (1969-1983), and Thorpe Insulation (1963-1981). The ALJ held claimant did not establish a prima facie case with Thermal or Owens Corning because she did not establish decedent was exposed to asbestos on a covered situs and ordered Thorpe to pay compensation. On appeal, Thorpe argued Owens Corning was responsible because there was some evidence decedent could have been exposed to asbestos on the Queen Mary when employed by Owens Corning. Decedent testified in deposition he worked on the Queen Mary in the 1970’s for Owens Corning but did not make any statements about being exposed to asbestos when on the ship. Claimant confirmed decedent worked on the Queen Mary but had no information about asbestos exposure. Mr. Ay testified he worked on the Queen Mary in 1969, knew asbestos abatement projects were done in the 1960’s and 1970’s, and knew some of the original insulation was still no the ship. The ALJ concluded Mr. Ay’s testimony did not establish how much asbestos was present during decedent’s employment or where it was located and did not establish whether decedent worked in proximity to it. While the evidence suggests claimant might have been exposed to asbestos on the Queen Mary, there was no evidence to establish he actually was exposed. Therefore claimant did not invoke the §20 presumption as to Owens Corning. The Board affirmed. Evidence there could have been working conditions that could have caused disease and death was insufficient to invoke the presumption.
Claim – Excuses/Exceptions
Employer must raise timeliness at the “first hearing.” First hearing is not the informal conference. When new conditions are claimed for the same injury employer need not file another LS-202 to toll statute of limitations. Newcomer v. Dyncorp International, BRB 16-0051, 11/9/16 (unpublished).
Claimant was injured in Iraq when a bomb detonated outside his office. He sustained injuries to his face, legs, right arm, wrist, and fingers. Employer filed a timely LS-202. He also sought compensation for ocular and auditory injuries, a back injury from cumulative trauma, and PTSD. Claimant filed a filed a claim for loss of vision on August 2, 2011 when he filed a prehearing statement. The ALJ held claimant was aware of the full extent of his ocular disability on May 28, 2008, his last day of work in Afghanistan. Therefore, the claim was not timely. Claimant argued the statute of limitations was tolled because Employer did not raise the timeliness issue at the informal conference and did not file another LS-202. The Board rejected both arguments. Employer must raise timeliness at the “first hearing.” The first hearing is not the informal conference. Additionally, employer filed a LS-202 when the initial claim was filed and need not file multiple LS-202’s for additional injuries due to the same incident.
Death – Qualified Beneficiary
Spouse living apart from decedent need not be 50% dependent for support.Partial dependency is sufficient. Logan v. IAP Worldwide Services, BRB 16-0162, 11/14/16 (unpublished).
Claimant’s husband sustained a compensable brain injury, returned home, and married claimant. Their income from claimant’s salary and decedent’s disability was deposited in joint bank accounts, from which they paid their mortgage and other bills. As time passed decedent began drinking heavily, stopped taking his psychiatric medicine, and moved into a motel. Claimant filed a petition for a restraining order but told claimant she would withdraw the petition if he stopped drinking and took his medication. Decedent arranged for a friend to take him to the doctor the next day but died from a self inflicted gunshot wound that evening. Claimant filed a claim for death benefits. The ALJ held claimant was not a “widow” per §2(16) because she was not dependent on decedent at time of death, i.e., she did not receive over half of her support from him as described in the IRS Code’s definition of dependent, 26 USC §152.
9(b) defines “widow or widower” as including the decedent’s wife or husband living with or dependent for support upon him at the time of death or living apart for justifiable cause or by reason or his or her desertion at such time. As claimant was not living with decedent at time of death she must be dependent upon him or living apart for justifiable cause or by reason of decedent’s desertion. If the separation was for justifiable cause, the Supreme Court has stated that the essential requirement for demonstrating “widow” or “widower” status under the Act is the maintenance of a “conjugal nexus” between the decedent and the claimant.
The ALJ applied the IRS Code definition of dependent, i.e., an individual who receives over half of his or her support from the Decedent. This was error. There is no statutory requirement to apply IRS §152 to determine the dependency of a surviving spouse under §9(b). In contrast §9(d) explicitly requires “other [non-enumerated] persons” to “satisfy the definition of the term ‘dependent’ in section 152 of Title 25,” 33 U.S.C. 909(d) to establish entitlement to death benefits.
Evidence – Expert Medical Evidence
OWCP appointed examiner’s report not dispositive. Ceres Marine Terminals, Inc. v. Director, OWCP, 2016 WL 8116747 (4th Cir. 15-1041, 1/27/17).
Per §7(e), the District Director caused claimant to be examined by an independent medical examiner. Employer contended he ALJ was required to give the examiner’s report dispositive weight. The Board disagreed. The statute states “any party who is dissatisfied with such report may request a review or examination of the employee by one or more different physicians employed or selected by the Secretary.” This clause means the examiner’s opinion is not binding on the ALJ or the parties. It must be weighed along with other medical opinions of record.
Maximum Medical Improvement
Disability was permanent when claimant was advised she requires left hip replacement surgery at some point.Zaradnik v. The Dutra Group, Inc., BRB 16-0128, 16-0128A, 12/9/16 (unpublished).
The ALJ concluded employer’s work for employer caused, aggravated, or accelerated her bilateral hip condition (among other conditions). He deemed her disability temporary because she been “universally advised” she requires a left hip replacement at some point, planned to undergo the procedure as soon as she is able, the surgery had the potential to substantially improve her condition, and she continued to seek treatment with a view toward improving her condition.
In SSA Terminals v. Carrion, 821 F.3d 1168 (9th Cir. 2016) claimant had osteoarthritis but it was uncertain if the claimant would have a proposed knee replacement surgery. The Court deemed Carrion’s condition permanent, not temporary and said the impact of a future knee replacement should be assessed after the surgery, not in anticipation of such a contingency. “Given the Ninth Circuit’s decision in Carrion” the Board vacated the ALJ’s finding that claimant’s disability was temporary.
Medical Services – Other
District Director had discretion to allow change of physician when treating doctor released claimant to return to work and new doctor said he was totally disabled. Scott v. Ports America Louisiana, BRB 16-0073, 11/14/16 (unpublished).
Claimant treated with Dr. Steiner from February to August, 2015. Dr. Steiner concluded claimant could return to work without restrictions. In October 2015, at an informal conference, claimant requested permission to treat with Dr. Bostick, who opined claimant was totally disabled. On October 28, 2015 the District Director approved the change, finding Dr. Steiner had effectively discharged the claimant. §7(b) allows the district director to authorize a change of treating physician if such change is desirable or is necessary in the interest of the employee. The Board held the district director did not abuse his discretion and agreed Dr. Bostick should be designated as the attending physician but employer’s liability for treatment by Dr. Bostick began only after the date the director authorized the change.
Zone of danger not relevant in LHWCA claim. Ceres Marine Terminals, Inc. v. Director, OWCP, 2016 WL 8116747 (4th Cir. 15-1041, 1/27/17), affirming Jackson v. Ceres Marine Terminals, Inc., 2014 WL 749188 (BRB 14-0071, 2014).
In tort, the zone of danger test limits recovery to plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct or who are placed in an immediate risk of physical harm by that conduct. Recovery for negligent infliction of emotional distress is available under FELA but the zone of danger test has limited the scope of the recovery. The ALJ concluded claimant sustained a compensable work related psychological injury, but employer argued the zone of danger test prevented claimant from recovering compensation. The Board held the zone of danger test does not apply to LHWCA claims. The 4th Circuit affirmed. The LHWCA does not distinguish between psychological and physical injuries. Nowhere in the statute is there a requirement that psychological injuries be accompanied by actual or threatened physical harm.
Responsibility – Other
Last employer before disability was rated responsible when subsequent employers were not joined.Jenkins v. Ports America, Inc., BRB 16-0148, 11/23/16 (unpublished).
Claimant had right knee surgery in 2003, allegedly sustained injuries to her neck, shoulder, low back, and right knee at Yusen on August 13, 2010, but worked for various employers until September 25, 2011 when she began taking marine clerk jobs per an ADA accommodation. Her employers included Ports America. She stopped working February 3, 2014 due to an unrelated injury from a car accident. Dr. Capen concluded claimant reached maximum medical improvement for her knees on November 16, 2012. Claimant worked for Ports America on November 15, 2012. She filed a claim with Yusen for the August 13, 2010 injury. Yusen moved to join Ports America based on medical opinion claimant’s continued work aggravated her bilateral knee condition. The ALJ concluded continued employment worsened her bilateral knee arthritis and found Ports America liable for payment of scheduled PPD for both knees. He also found Yusen liable for periods of TTD before November 16, 2012 and found Yusen liable for medical benefits for the neck, shoulder, and low back and knee before November 15, 2012.
On appeal, Ports America argued claimant continued to work after November 15, 2012, so it could not be liable as the last employer to contribute to claimant’s condition. The Board disagreed. Only two employers. Claimant had a work related bilateral knee condition. If none of employers’ evidence persuaded the ALJ as to the identify of the responsible employer the last employer must be liable. That claimant continued to work for other employers is immaterial as no other employers were joined. Ports America was the last employer to aggravate claimant’s condition prior to the date Dr. Capen provided an impairment rating and was the last employer to aggravate claimant’s condition.
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