LHWCA Caselaw Update
For those among us who deal with Charles Robinowitz, Judge Clark and Judge Gee awarded fees for 2015/2016 services in the range of $350 to $360 rather than $450 to $466, the amount awarded by the Benefits Review Board and 9th Circuit for appellate services in other claims. Judge Clark and Judge Gee based their awards on civil litigation and general categories in the 2012 Oregon State Bar Economic Survey and classified Mr. Robinowitz as a 75th percentile attorney rather than a 95th percentile attorney. In two unpublished decisions the Board affirmed Judge Clark. An appeal from Judge Gee’s award is pending before the Board, but the Board’s decisions in Ayers and Lesh suggest Judge Gee’s award will be affirmed too. Good news for those of us who deal with Mr. Robinowitz.
In two unpublished decisions, Zaradnik and Mauk, the Board held if an employer contends a subsequent non-maritime injury caused the claimant’s disability it must present evidence of apportionment. Otherwise the employer will be responsible for the entire disability.
In Robinson v. Electric Boat Corporation the claimant filed and settled a state compensation claim for asbestos related lung cancer. He then filed a LHWCA claim for the same condition but not within two years of knowledge of a work related disability. The Board held his claim nevertheless was timely because it was filed within one year of the last payment of compensation. Payment in the state claim was “compensation” within the meaning of Section 13.
In Stoufflet v. Ceres Gulf the employer subpoenaed records from a medical provider who demanded prepayment of $349 for 860 pages. The Employer tendered $187 and filed a motion to enforce the subpoena. LHWCA rules state compliance with a subpoena must not cause an undue burden but do not state rates that can be charged for copies. The ALJ concluded he had discretion to order a reasonable rate ($249.60) and he was not required to adopt rates established by state statutes. The Board affirmed in an unpublished decision. In most claims the legal expense required to save a few hundred dollars for an excessive copy fee will be more than the savings gained through litigation. Nevertheless, in some situations, especially when dealing repeatedly with the same medical providers, contesting an excessive fee might be worth the effort.
Moody v. Huntington Ingalls, now on appeal in the 4th Circuit, held a worker who became temporarily disabled after a voluntary retirement is not entitled to TTD. In Hendricks v. Huntington Ingalls (unpublished) and Christie v. Georgia Pacific, the Board held a voluntary retiree was not entitled to PTD because, like the claimant in Moody, the disability was not due to the injury. Christie was appealed to the 9th Circuit. My colleague, Stephen Verotsky, is representing the employer on that matter.
In two unpublished decisions, Kellison v. Dutra Group and Jenkins v. Ports America, Inc., the Board held if the employer does not concede a condition is compensable the claimant must first prove it is before the ALJ considers responsibility. Responsibility rules, such as the rule in Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co. [Price], 339 F.3d 1102 (9th Cir. 2003), do not apply unless the condition is compensable. If the employer rebuts the Section 20 presumption claimant must do more than merely prove a work injury could have caused the disability .
Attorney Fees – Amount
Attorney Robinowitz fee based on 75th percentile of 2012 Oregon State Bar Economic Survey, with adjustments based on the CPI-U for Portland, Oregon. Ayers v. Jones Stevedoring Co. (BRB 16-0520, 4/24/17) (unpublished); Lesh v. Advantage Federal Resourcing (BRB 16-0518, 4/25/17) (unpublished).
In separate claims Portland attorney Charles Robinowitz appealed fees awarded by ALJ Clark. Judge Clark based the fee on the average of the 75th percentile of rates reported by attorneys practicing in Portland, Oregon in plaintiff personal injury civil litigation, plaintiff civil litigation not including personal injury and general practice categories as reported in the Oregon State Bar 2012 Economic Survey. This produced an initial rate of $325 in 2011. He then adjusted rates for subsequent years based on the change in the Consumer Price Index (CIP-U) for Portland: $332.47 in 2012, $340.79 in 2013, $348.97 in 2014, and 353.16 in 2015. The ALJ rejected Mr. Robinowitz contention he was in the 95th percentile, his LHWCA practice was comparable to business litigation (which had higher rate in the OSB survey), the Board and 9th Circuit had awarded a much higher rate, and the fee should be indexed according to the National Average Weekly Wage rather than the CPI-U. The Board affirmed, concluding there was no abuse of discretion and fees awarded for appellate work are not comparable.
Causation – Intervening Injury
Intervening injury must be sole cause of disability or must be apportioned. Zaradnik v. The Dutra Group, Inc. (BRB 16-0128, 12/9/16) (unpublished).
In a cumulative trauma claim filed in 2012 based on maritime employment ending in 2010 employer argued subsequent non maritime work was the cause of claimant’s bilateral hand condition. There was evidence claimant’s CTS was due to work for the covered employer and the subsequent employer. The covered employer was responsible for any disability attributable to a work injury or its natural progression notwithstanding a supervening injury but if the disabling condition was due to both the work injury and the non covered injury the covered employer was relieved of liability for disability caused by the subsequent non covered injury only if there was evidence apportioning the disability between the two injuries. If there is no such evidence the covered employer was liable for claimant’s entire disabling condition. Here, employer failed to present evidence of apportionment, so employer was responsible for the entire disability.
ALJ must review evidence to determine extent of contribution from intervening injury. Mauk v. Cascade General (BRB 16-0144, 11/18/16) (unpublished).
Claimant proved he sustained a cumulative trauma injury to his shoulder due to maritime work as a pipefitter through February 2008. Notwithstanding this injury, he had a PCE that deemed him capable of heavy employment. He briefly returned to work in covered employment and then worked in noncovered employment for Harder Mechanical. In November 2011 he sustained a traumatic injury to his shoulder, worked in limited duty until December 2011 until he was laid off, and then had a MRI that revealed a rotator cuff tear. He had shoulder surgery in March 2012. Employer argued the injury at Harder caused the rotator cuff tear and was responsible for the surgery. The ALJ held employer was fully liable but did not address and weight all of the relevant evidence in terms of whether the disability was attributable to the Harder injury. The Board remanded the claim to determine if the Harder injury alone caused claimant’s disability. Because claimant was not disabled before the Harder incident, the proper inquiry was whether claimant’s injury at Harder and the resulting disability was due to the natural progression of the work related injury with employer or whether the disabling injury was due to an intervening cause injury at Harder.
Causation – §20 Presumption
Claimant lacked credibility and did not invoke presumption. Price v. Director, OWCP, 2017 U.S. App. LEXIS 4947 (5th Cir., 16-60404, 2017) (unpublished).
Two claimants sought compensation for what they contended was a forceful collision with a shrimp boat, causing them to fall. Other crewmembers testified there was a collision with a line, not the boat itself, and there was no impact or jolt that could have caused the fall. The ALJ concluded claimants were not credible and did not meet their burden of showing injuries could have been caused or aggravated by a workplace incident. The Board and Court affirmed, concluding claimants did not invoke the presumption. The ALJ’s finding claimants were totally unreliable and not credible was sufficient to discredit claimants’ evidence of a more serious incident.
Claim – Date of Awareness; Notice
Knowledge of impairment of earning power required to start statute of limitations. Notice timely because employer did not prove prejudice. Zaradnik v. The Dutra Group, Inc. (BRB 16-0128, 12/9/16) (unpublished).
Claimant alleged cumulative trauma injuries to her hip, back, hands, and lungs as a pile driver beginning 1991. She worked for employer intermittently from July 23 to September 20, 2010 when the crew was laid off and then worked in non covered employer until January 27, 2012. She looked for work until September 2012 when she received notice she would receive SSD and retired the same month. She filed a claim on October 12, 2011. The ALJ concluded it was only after Dr. Ezzet, on August 29, 2011, explained her hip problems were work related and advised her to leave her career as a pile driver that she became aware of the full extent, character, and impact of her hip injury and knew she had an impairment of earning power. She acquired similar information about her pulmonary condition from Dr. Harrison on November 9, 2012. The ALJ held notice of the hip claim was untimely but employer did not prove prejudice.
On appeal the Board held notice and claims were timely. Substantial evidence supported the ALJ’s finding of date of knowledge. Prejudice under §12 occurs when employer provides substantial evidence that due to untimely notice it could not effectively investigate to determine the nature and extent to the illness or provide medical services. The prejudice inquiry is limited to the period between claimant’s awareness and employer’s receipt of knowledge. The Board affirmed. Awareness in a traumatic injury case occurs when the claimant is aware, or should have been aware, of the relationship between the injury, the employment, and an impairment of earning power, and not necessarily on the date of the accident or, in a repetitive trauma case, the date of the last trauma.
Claim – Excuses/Exceptions
Claim timely when filed within one year of payment in state act claim. Robinson v. Electric Boat Corp., 51 BRBS 1(BRB 16-0369, 2/15/17).
Claimant worked as a welder in the 1970’s and then for non- covered employers until voluntary retirement. In August 2010 he filed a Connecticut worker’s compensation claim for asbestos related lung cancer. In January 2011 claimant settled his state claim and immediately received payment. In October 2013 he filed a LHWCA claim. Employer contended the claim was untimely but the ALJ allowed the claim. §13(b)(2) states a claim for disability due to an occupational disease which does not immediately result in disability is timely if filed within two years after the claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of the relationship between the employment and the disability or within one year of the date of the last payment of compensation, whichever is later. Claimant did not file within two years of awareness, but the claim was timely because it was filed within one year of the payment in the state claim. When payments are voluntarily made under the Act, voluntarily paid under a state compensation scheme, or paid pursuant to an award under a state compensation scheme, they are “compensation” within the meaning of §13(a).
Costs reduced. Braun v. U.S. Barge, 50 BRBS 135 (BRB 16-0189, 8/25/16) (unpublished).
After a hearing the parties agreed to a §8(i) settlement, to include an award of reasonable fees and costs. Claimant requested reimbursement of somewhat more than $15,000 costs for services of his vocational expert (Scott Stipe). The ALJ awarded approximately $9,000 because the consultants work was unfocused. He engaged in unnecessary activities, and his role should have been better defined by claimant’s counsel. Claimant appealed. The Board affirmed. The ALJ did not abuse his discretion.
Discovery – Other
ALJ had discretion to determine fee medical provider could charge for copies of subpoenaed records. Stoufflet v. Ceres Gulf, Inc. (BRB 16-0521, 16-0521A, 4/4/17) (unpublished).
Employer issued a subpoena to a medical provider (Ochsner) for production of medical records. Ochsner requested pre-payment of $349 to copy 860 pages based on a Louisiana statute that allowed a reasonable charge, not to exceed $1.00 per page for the first 25 pages, $0.50 per page for 26 to 350 pages, and $0.25 per page thereafter with a handling charge not to exceed $25.00, plus actual postage. Employer disputed the invoice and offered to pay $0.20 per page plus $15 postage and also filed a motion to enforce the subpoena. The ALJ observed federal law did not mandate the amount to be paid for copying documents so he must determine a reasonable amount. Ochsner’s request, the equivalent of $0.40 per page, was unreasonable. A reasonable rate was $0.25 per page, plus $25 search and retrieval fee, plus $9.60 postage, a total of $249.60. The parties complied but Ochsner appealed, contending the rate allowed under Louisiana law was controlling. The Board disagreed. Federal law did not mandate a specific cost for production of medical documents, so the ALJ had discretion to determine a reasonable rate that protected Ochsner from “significant expense” (per 20 CFR 18.56(c). Ochsner did not establish why employer should pay the maximum rate allowed under Louisiana law and did not prove the rate allowed by the ALJ was insufficient to prevent an undue burden.
Discovery – Sanctions
Effort to dismiss when claimant uncooperative fails. Comfort v. Mission Essential Personnel, (BRB 16-0235, 2/24/17) (unpublished).
Unrepresented worker did not respond to interrogatories and request for production or appear for deposition. Employer filed a motion to dismiss or compel claimant’s deposition. The ALJ granted the motion to compel, admonishing claimant to keep contact information current with employer and the OALJ. The ALJ ordered claimant and employer to confer and agree within 14 days on a date for deposition. Employer filed a second motion to dismiss stating claimant refused to provide a date or address for deposition. The ALJ issued a show cause order and then an order of dismissal when claimant did not respond. Two days after this order claimant telephoned the OALJ and provided a current address. Claimant appealed the order of dismissal, contending she did not receive mail from the OALJ. The Board held the ALJ prematurely ordered the dismissal for abandonment of her claim. Documents belatedly filed were not indicative of an intent to relinquish the claim.
Medical Services – Other
Reimbursement for replacement hearing aids denied when obtained without first requesting approval and when evidence failed to prove they were reasonable and necessary. Selthon v. Jones Stevedoring Co. (BRB 16-0658, 4/19/17) (unpublished).
In a May 2008 Decision and Order ALJ awarded compensation for injury to the right shoulder and cervical spine and 29.06% binaural hearing loss due to occupational noise. In the current proceeding claimant sought reimbursement for medical expenses related to his neck condition plus replacement for hearing aids obtained in 2009 and in 2014. Claimant did not produce audiometric testing showing his hearing loss had worsened or any documentation from hearing aid providers indicating they had sought prior authorization. The ALJ concluded claimant’s testimony suggested claimant had asked providers to bill the employer after the fact. The ALJ denied reimbursement for hearing aids because claimant did not comply with §7(d) (no prior request for authorization) and there was no evidence to prove new hearing aids were reasonable and necessary. The Board affirmed.
Modification – Mistake in Fact
Modification for mistake in fact must render justice under the Act. Latusek v. Consolidation Coal Co, (BRB 15-0242 BLA, 5/13/16) (unpublished).
Modification does not automatically flow from a finding that a mistake was made on an earlier determination and should be made only where doing so will render justice under the Act. Citing Old Ben Coal Co. v. Director, OWCP, 292 F.3d 533, 547 (7th Cir. 2002), the ALJ observed modification should be denied if the moving party has engaged in such contemptible conduct or conduct that renders its opponents so defenseless that it could be said correcting the decision would not render justice under the Act. Employer cited Westmoreland Coal Co. v. Sharpe [Sharpe II], 692 F.3d 317, 327-328 (4th Cir. 2012) which held an ALJ may grant modification based on consideration of factors that may be relevant to the rendering of justice under the Act which include the need for accuracy, the quality of the new evidence, the diligence and motive of the party seeking modification, and the futility or mootness of a favorable ruling. The Board held the ALJ considered the relevant factors outlined in Sharp II.
Permanent Disability – Retired Workers
Retired before disabled. No PTD. Hendricks v. Huntington Ingalls, Inc. (BRB 16-0370, 3/24/17) (unpublished)
After claims for CTS in 2006 and right knee in 2009 claimant was released to return to usual work, returned to work, but retired on December 17, 2010. On April 19, 2011 he filed a claim alleging he was forced to retire because of his injuries. He sought PTD from the date of retirement. The ALJ did not award PTD because claimant was able to perform his usual job at the time he retired. The Board affirmed. The ALJ rationally concluded claimant voluntarily quit work not because of his work injuries but because he simply was ready to retire. Claimant’s testimony he worked in great pain is contradicted by the records of two doctors and his post retirement lifestyle (bought a motorcycle land made multiple trips to the Philippines).
Retired for reasons unrelated to the injury. No PTD. Christie v. Georgia Pacific Co. 2017 WL 1244335 (BRB 16-0321, 2017).
Claimant injured his back June 29, 1999 when employed as a carpenter. He returned to work with restrictions. By 2007 or 2008 he worked exclusively as a safety inspector. In in late 2010, when 56, claimant learned his union planned to eliminate early retirement effective January 1, 2011, which meant he would have to wait until age 62 to retire. Believing his work related back condition might prevent his continued employment, claimant retired on December 1, 2010 with a reduction in pension benefits. His back deteriorated post retirement and in December 2010 his doctor imposed additional work restrictions. He sought and was awarded PTD. The ALJ concluded claimant was capable of working as a safety inspector when he retired but was not barred from receiving PTD as his decision to stop working was involuntary, out of concern his work injury would prevent him from working until full retirement age. The Board reversed based on Moody v. Huntington Ingalls, Inc., 50 BRBS 9 (2016), recon. denied, BRB 15-0314 (May 10, 2016), appeal pending, No. 16-1773 (4th Cir.). Claimant was not entitled to total disability after he retired for reasons unrelated to the work injury because there was no loss of wage earning capacity due to the injury.
Responsibility – LIE Rule
ALJ conflated responsible employer law with causation in injury and occupational disease. If compensability is disputed, and the presumption is rebutted, claimant must prove condition is compensable. Kellison v. Dutra Group, 2017 DOLBRB LEXIS 30 (BRB 16-0242, 2017) (unpublished).
Claimant sought compensation for cumulative orthopedic and respiratory injuries and hearing loss based on work as a piledriver from January 18, 2010 to May 24, 2010 and then as foreman until November 19, 2010, when laid off due to a reduction in force. The ALJ concluded claimant invoked the §20 presumption and employer rebutted the presumption. Hearing loss was compensable, but claimant failed to prove his work for employer caused, aggravated, accelerated, and/or contributed to his overall orthopedic and respiratory conditions.
On appeal, claimant, citing Metropolitan Stevedore Co. v. Crescent Wharf & Warehouse Co. [Price], 339 F.3d 1102 (9th Cir. 2003), argued he need only show his work for employer could have caused or aggravated his orthopedic conditions. The Board rejected this argument because the multiple employers and carriers in Price agreed the injury/condition was work related. They litigated responsibility for a compensable condition through application of the last employer rule. Here, employers did not concede the orthopedic condition was compensable. The ALJ, weighing the evidence, rationally found claimant did not carry his burden of proving aggravation, contribution, or even symptomatology during or in the months following claimant’s work for employer.
Claimant also argued the ALJ incorrectly applied an accidental injury standard rather than occupational disease standard, contending the employer who last exposed him to stimuli which had the potential to cause, accelerate, and/or aggravate his COPD was liable as a matter of law. The Board disagreed. Claimant’s analysis applies when the work related nature of the disease is not in dispute and the issue is responsibility. Substantial evidence demonstrated exposures from claimant’s work with employer did not cause or contribute to his COPD, rebutting the §20 presumption. Claimant conflated responsible employer law with causation law as it related to claimant’s burden of proof in a case where the issue was whether claimant’s harm was work related. Claimant must show his exposures with employer in fact caused his injury because he was the proponent this factual proposition.
Responsible employer was the last joined employer before impairment rated. It failed to join subsequent employers. Jenkins v. Ports America, Inc., 2016 DOLBRB Lexis 344 (BRB 16-0148, 16-0402, 11/23/16) (unpublished).
Claimant sustained injuries to neck, shoulder low back, and right knee at Yusen on August 13, 2010. Claimant was off work until January 4, 2011 and then missed work intermittently due to knee pain. In September 2011 she began taking only clerk jobs, including positions with Ports America, until February 3, 2014 when she stopped working due to an unrelated MVA. Ports America was joined based on the theory continued work aggravated her knee condition. On November 16, 2012 Dr. Capen found claimant reached maximum medical improvement and gave impairment ratings for the knees. The ALJ held claimant proved a work related injury to her right knee, neck, shoulders, and low back on August 13, 2010 and a cumulative trauma to both knees due to work as a marine clerk. Claimant’s knee condition was last aggravated by her work for Ports America on November 15, 2012, the day before her knees were rated with a permanent impairment. That claimant continued to work for other employers is immaterial as no other employers were joined. The Board affirmed.
On appeal there was no challenge to the ALJ’s finding claimant had a work related bilateral knee condition. One of the employers must be liable. Claimant is entitled to medical benefits for her work injury from the responsible employer notwithstanding the possibility that her continued employment might be aggravating her condition. Also, Ports America did not contest the ALJs findings continued employment after August 2010 aggravated claimant’s knee arthritis and did not contend the knee impairment was due solely to the progression of the August 2010 injury. Dr. Capen gave claimant a permanent impairment rating on November 16, 2012, and the ALJ found claimant’s last employment that aggravated her condition before that date was at Ports America.
- 8(i) agreement with unrepresented worker remanded for further consideration. If not approved, claimant may have to repay employer. Rogers v. Norfolk Southern Corporation, 2017 DOLBRB LEXIS 34 (BRB 16-0306, 2/28/17) (unpublished).
Unrepresented claimant appealed an order approving a §8(i) settlement discharging claimant’s entitlement to indemnity, medicals and relief for a LHWCA discrimination claim for $181,248.00. Additionally, employer agreed to pay the former attorney $20,000 fees. On appeal claimant contended he was not informed of the “true value” of the claim and the amount did not cover his future medical expenses. He also challenged payment of a fee to his former attorney. The Board remanded to allow claimant an opportunity to raise these issues before the ALJ but cautioned if the agreement was disapproved he might receive a lesser amount and have to repay the benefits, and employer would be entitled to a credit toward any amount due.
- 8(i) agreement settled hearing loss even though no formal claim for hearing loss was filed. Ford v. SSA Terminals (BRB 16-0493, 3/28/17) (unpublished).
In 1995 claimant had an audiogram revealing 37.81% binaural impairment. He stopped working after a December 20, 2002 right hand or thumb injury. Claimant and several employers and their mutual carrier, Homeport, agreed to a July 15, 2004 §8(i) settlement of traumatic and cumulative trauma work injuries claimant sustained in 1993, 1996, 2001, 2002, and hearing loss for $175,000 (disability and medical services). The settlement agreement acknowledged no formal claim had been filed for hearing loss sustained through the last day of employment, but the agreement covered any hearing loss through the last day of employment. In 2015 claimant had another audiogram showing severe hearing loss. He filed a new claim. The ALJ dismissed it. Claimant appealed. The Board affirmed. The agreement clearly covered employment through the last day of employment. A claim need not be on a particular form as long as it discloses an intention to assert a right to compensation. The settlement agreement clearly asserted a right to compensation for hearing loss based on exposure through the last day of employment. The claim was in existence at the time of the agreement.
If you have any questions regarding the above decisions or any other LHWCA concerns, please contact me at firstname.lastname@example.org