LHWCA Caselaw Update

This quarter most decisions were unpublished and not especially noteworthy. Unpublished decisions cannot be cited as precedent are instructive.

Huntington Ingalls fought and lost a series of battles against medical providers who sought payment for claim related services. It offered payment equal to the amount the providers agreed to accept in agreements with private insurers. The District Director recommended payment at the OWCP fee schedule rate, which was more than the private insurer rate but less than the amount billed. The Board held it could not consider the validity of the private insurer rates, but under the LHWCA it could order the employer to pay for the medical service at the OWCP fee schedule. Additionally, the medical provider’s attorneys could obtain employer paid fees for securing payment at the OWCP rates. Medical providers do not commonly intervene in LHWCA claims, but the Board’s decisions indicates if they did intervene, their attorneys could receive an employer paid fee if intervention was successful. Billman, Cole, and Wardell Orthopedics PC v. Huntington Ingalls Industries; Watson and Wardell Orthopedics, PC v. Huntington Ingalls Industries, Inc..

In Taylor v. SSA Cooper LLC the employer argued it did not owe fees because it voluntarily paid for medical services within 30 days of notice of the claim even though many months passed before it paid nine days of TTD. The Board held §28(a) allows a fee when the employer does not pay for medical services or disability. Entitlement to a fee depends on what benefits are claimed and what benefits employer paid or declined to pay and whether there is success obtaining the claimed but denied benefits. Employer’s refusal to pay 9 days of TTD cost it more than $11,000 in fees, just at the OALJ level.

In Dalton v. Maritime Services Corporation (unpublished) the attending physician referred claimant to other physicians but none of these physicians recommended additional treatment. The ALJ concluded claimant was at maximum medical improvement after the evaluations concluded. The attending physician said, in retrospect, claimant was at maximum medical improvement before the evaluations occurred because no new treatment was recommended. Claimant wanted the earlier date because he was PTD, and the earlier date would give him an earlier October 1 increase in his compensation rate. The Court affirmed the ALJ’s decision but in a footnote held retrospective evaluations could be appropriate, depending on the facts. This is contrary to decisions in other circuits. If there is a possibility of improvement, even if new evaluations do not recommend treatment, the worker is not at maximum medical improvement.

In the same decision the ALJ calculated claimant’s average weekly wage based on earnings for two years before a March 17, 2001 injury. In the year before the injury claimant worked substantially less than usual. Considering the obligation to avoid harsh and incongruous results, resolve all doubts in favor of the worker, and achieve a result that is consistent with the humanitarian nature of the Act, the Court directed the ALJ to calculate average weekly wage based on claimant’s earnings from March 21, 1999 through March 20, 2000, i.e., the second year before the injury rather than the first year or two years before the injury. This decision might be cited whenever a claimant want to avoid using lower than usual earnings in the year before the injury in the calculation of average weekly wage. But, it is unpublished and therefore not precedent and is difficult to reconcile with other decisions. Caselaw says the ALJ has wide discretion when calculating AWW based on §10(c). Appellate court can conclude facts are not supported by substantial evidence, but they are not empowered to make findings of fact. If it was unreasonable to include the earnings in the year before the injury in the calculation of average weekly wage the court should have remanded the claim and instructed the judge to find some other way of calculating average weekly wage. Also, it was error to conclude all doubts should be resolved in favor of the claimant. The Supreme Court, in Director v. Greenwich Collieries, 512 US 267 (1994), held that concept (the “true doubt” rule) does not apply in LHWCA claims. Nevertheless, this is not a case that will be appealed to the Supreme Court.

The LHWCA excludes compensation for intentional injury. In an earlier decision the Court held a suicide or injuries from a suicide attempt is compensable if there is a direct and unbroken chain of causation between the compensable work related injury and the death or suicide attempt. In a subsequent appeal in the same case, Leeward Marine v. Director, employers argued this was a different standard of proof than in an ordinary LHWCA claim. The court held the ALJ could rely on the aggravation rule. If the injury exacerbated or aggravated a preexisting condition it could be a causative factor in a direct and unbroken chain of causation.

In a Defense Base Act decision, Chugach Mgmt. Services v. Jetnil, the 9th Circuit held the zone of special danger concept applied to all subject workers, including citizens of the foreign company injured in their home country. Concluding otherwise would lead to irrational results.

In another DBA claim, Herfi v. Global Linguist Solutions LLC, the Board offered guidance, albeit in an unpublished decision, regarding when the employer can rely on a labor market survey in overseas employment when the worker has returned to the United States. There is no duty to seek overseas employment after recovering from an overseas injury, so ordinarily a labor market survey for overseas employment is irrelevant. If a claimant pursues overseas work after reaching maximum medical improvement, overseas jobs become relevant alternative employment.

In a series of decisions the Board reversed judges who had failed to issue appealable decisions. In Grabert v. BESCO Tubular and Boudreaux v Owensby & Kritikos, Inc. the ALJ ordered employer to pay compensation but did not state the precise compensation owed. These orders were not final orders and therefore could not be appealed. In Alexander v. Navy Exchange Service Command the ALJ ordered employer to pay TTD until the date of maximum medical improvement. The Board reversed and remanded because the ALJ had an obligation to either award ongoing TTD, subject to §22 modification when claimant reached maximum medical improvement, or award PPD, if entitled, in addition to TTD.

Hearing loss claims sometimes are filed long after maritime employment ends. Roy v. Cooper/T.Smith, Inc., an unpublished decision, held in the absence of credible evidence regarding the extent of loss at the time covered employment ends, the ALJ can conclude the current audiogram reflects the loss when claimant last worked in covered employment.

Attorney Fees – Amount

Attorney Robinowitz awarded $350 per hour for services in 2011 but remanded to consider delay enhancement. Ochoa v. Jones Stevedoring Co., 2017 DOLBRB LEXIS 200 (BRB 17-0085, 07/27/17) (unpublished).

Judge Larsen rejected Portland, Oregon attorney Charles Robinowitz’ request for $450 per hour for services from May 9, 2011 to April 5, 2013 and awarded $360 per hour. The Board vacated this award per Shirrod v. Director, OWCP, 809 F.3d 1082 (9th Cir. 2015). On remand, relying on the 2012 Oregon State Bar Survey, Judge Larsen awarded $350 per hour and found any delay in payment was not significant enough to warrant an enhanced hourly rate. On appeal, the Board affirmed the rate of $350 per hour for 2011, concluding the ALJ performed a reasoned analysis of the 2012 OSB Survey data and offered a rationale for his proxy rate. It remanded to consider an enhancement of the fee due to delay between the performance of services and the award of a fee for those services (May 9, 2011 to April 5, 2013).

Attorney Fees – Entitlement

Medical provider was “person seeking benefits” entitled to fees. Billman, Cole, and Wardell Orthopedics PC v. Huntington Ingalls Industries, 2017 DOLBRB LEXIS 209 (BRB 16-0537, 16-0537A, 16-0576, 16-0576A, 07/31/17) (unpublished).

Claimants Billman and Cole suffered work related injuries and were treated by Wardell Orthopedics. Wardell submitted invoices to employer seeking payment. Employer paid substantially less. Wardell asked the District Director to intervene. The District Director calculated the amount due under the OWCP fee schedule:

Billman Cole
Wardell billed $2,074.00 $9,268.00
Employer paid $813.37 $4,230.42
OWCP Fee Schedule $1,189.99 $5,791.24

At employer’s request, the cases were transferred to the OALJ. Before a hearing employer agreed to pay the additional amount indicated by the OWCP fee schedule. Wardell’s attorney filed a petition for $11,326.00 fees plus $98.00 costs in Billman and $22,344.00 plus $35.00 costs in Cole. Employer argued the ALJ lacked jurisdiction over the reimbursement claim, so there was no basis for awarding Wardell’s counsel fees under the Act. The ALJ concluded she had jurisdiction to hear the reimbursement claim and any contractual defenses employer may have. She thought Wardell was a “person seeking benefits” per §28(a), but because Wardell did not “file a claim” and was not an “employee” Wardell could not obtain fees per §28(b). Wardell appealed and employer cross-appealed.

Citing Watson and Wardell Orthopedics, PC v. Huntington Ingalls Industries, Inc. the Board concluded it had jurisdiction to address a provider’s claim for reimbursement of the cost of its medical services at the prevailing rates under the Act pursuant to the OWCP Medical Fee Schedule, as that was an issue with respect to a claim under the Act. The ALJ could not address employer’s defense based on the private contracts because such issues are not in respect of a claim. Wardell’s claims were derivative of claimants’ claims for medical benefits and Wardell was a “person seeking benefits” under §28(a). Wardell applied to the Director for payment. Treatment was reasonable, necessary, and due to the injuries. Wardell’s attorney’s efforts to obtain payment did not duplicate any effort by claimant’s attorney. Employer did not pay the medical services within 30 days of the District Director’s letter recommending payment, and Wardell successfully prosecuted the reimbursement claims. Accordingly, Wardell was entitled to have its legal fees paid by the employer per §28(a).

Employer did not constructively reject informal conference recommendation it previously accepted by questioning coverage for specific treatment. No fee awarded. Wommack v. Ceres Terminals, Inc., 2017 DOLBRB LEXIS 196 (BRB 16-0647, 07/28/17) (unpublished).

Employer initially accepted a right ankle injury and paid compensation. After a physician opined claimant could return to work and did not need treatment employer terminated compensation and filed a notice of controversion. At an informal conference claimant sought TTD and treatment from Dr. Stern as treating physician. The claims examiner did not recommend payment of TTD because employer had work available but the examiner did ask the employer to authorize medical treatment. Seven days later employer accepted the recommendation, stating “Dr. Stern as treating physician and will authorize treatment.” Claimant next sought treatment from Dr. Folgueras, who recommended surgery. At a later date the saw Dr. Cerrato on referral from Dr. Stern. On September 29, 2015 Dr. Cerrato performed right ankle surgery. In answers to interrogatories employer denied liability for medical benefits after December 22, 2014 and for treatment from Dr. Folgueras. Approximately seven weeks later it agreed to authorize payment. The ALJ refused to award fees because employer accepted the informal conference recommendation and claimant did not secure an award greater than employer was willing to pay after the recommendation. The Board affirmed. In answering interrogatories employer took an alternative litigation position on the medical benefits issue which is not an indication of non acceptance. Interrogatory answers are not, per se, binding on the party. Employer was entitled to question the reasonableness and necessity of specific medical benefits, i.e., Dr. Cerrato’s surgery, notwithstanding its general acceptance after the informal conference of its liability for medical benefits and treatment by Dr. Stern. It could argue in the alternative, i.e., agree to pay medical benefits while advancing a litigation position contesting the compensability of medical treatment. The interrogatory answers did not supersede its prior acceptance.

Compensation for purposes of §28(a), is disability and/or medical services. Taylor v. SSA Cooper, LLC (BRB 16-0174, 06/30/17).

Per §28(a), employer is responsible for attorney fees if it declines to pay any compensation on or before the 30th day after receiving written notice of a claim and the person seeking benefits thereafter hires an attorney and successfully prosecutes the claim. Here, claimant was injured October 20, 2013, and employer paid medical services within 30 days of notice of the claim but not disability. With assistance from counsel, after a hearing claimant secured TTD from October 2 through 10, 2013. Claimant’s attorney sought $11,136.28 for fees and costs at the OALJ level. The ALJ held employer was not liable for fees because employer paid compensation, i.e., medical services, within 30 days after notice of the claim. The Board reversed. Compensation” in §28(a) means disability and/or medical benefits. Its precise meaning depends on what benefits are claimed and what benefits the employer paid or declined to pay in each case and depends on whether there is success in obtaining the claimed but denied benefit. If any type of benefit is denied and legal services are necessary to obtain the denied benefit, the claimant is entitled to an employer paid fee because the employer’s denial caused the need for attorney involvement.

[Editor’s note: Does it make sense to have a formal hearing to resolve entitlement to 9 days of TTD?]

Remanded to determine if claimant owes a fee to his attorney. Bessard v. Jobe (BRB 16-0548, 05/10/17) (unpublished).

After sustaining a work related injury in 1997 claimant retained Mr. Jobe as his attorney, who represented him from 1998 through April 14, 2014. The third time the claim was transferred to the OALJ an ALJ awarded claimant periods of TTD, TPD, PPD, and PTD as of August 27, 2006 and continuing medical benefits. The ALJ awarded $16,132.50 fees payable by employer for work performed at the OALJ level during the last referral, i.e., from August 23, 2012 through March 21, 2013. Counsel also filed a fee petition with the district director who awarded $49,040 for services from November 1, 2003 to August 23, 2012. Claimant terminated his relationship with counsel in April 2014. The District Director approved a §8(i) agreement for $625,000. The agreement stated counsel would file a fee petition for services he performed on claimant’s behalf but employer would not be responsible for those fees. Counsel then asked the District Director to award $19,238.10 fees for services he and his paralegal performed from June 26, 2013 to April 12, 2014 and for “uncompensated” work performed between in 2003 through 2006. The District Director denied fees for services at the OALJ level but awarded $1,365, payable by claimant as a lien against compensation. The Board affirmed but said counsel could file an itemized petition with the ALJ. Counsel then requested $11,100 for services between 2004 and 2006. The ALJ awarded $5,385, payable as a lien on compensation. Claimant appealed.

The Board remanded with instructions to address the timelines of counsel’s fee petition and whether employer can be held liable for work performed in 2004-2006. If employer can be held liable, consideration of claimant’s liability is unnecessary. . If employer is not liable the ALJ should determine the necessity of the services provided and reasonableness of the fee in relation to the degree of success, claimant’s financial ability to pay the fee, and must fix the lien and the manner of payment.

Average Weekly Wage – §10(c)

Court directs ALJ to calculate average weekly wage without including earnings in year before injury. Dalton v. Maritime Services Corporation, 2017 US App LEXIS 14932 (9th Cir., 15-70490, 8/11/17) (unpublished).

Claimant was injured on March 17, 2001. The ALJ used a two year work history immediately preceding the injury to calculate AWW. The court thought this calculation was too limited because one of those years was the worst in the employer’s history and claimant worked substantially less than usual. Considering the obligation to avoid harsh and incongruous results, resolve all doubts in favor of the worker, and achieve a result that is consistent with the humanitarian nature of the Act, the Court directed the ALJ to calculate average weekly wage based on his earnings from March 21, 1999 through March 20, 2000.

Causation – Other; Death – Other

ALJ could rely on aggravation rule to find accident was causative factor in attempted suicide Leeward Marine v. Director, US App. LEXIS 15397 (9th Cir. 16-72242, 15-0276, 2017) (unpublished).

In an earlier decision (713 F.3d 521) the 9th Circuit held suicide or injuries from a suicide attempt are compensable if there is a direct and unbroken chain of causation between the compensable work related injury and the suicide attempt. On remand the ALJ held the accident exacerbated Kealoha’s already weak impulse control and led in part to his attempted suicide. The Court held the ALJ could rely on the aggravation rule to find the accident was a causative factor in the attempted suicide and therefore demonstrated a direct and unbroken chain of causation.

Causation – §20 Presumption

Employer must rebut aggravation theory if claimed. Bonilla v. Morgan Bulk Terminals, 2017 DOLBRB Lexis 118 (BRB 16-0378, 04/13/17) (unpublished).

Claimant alleged he sustained a compensable injury to his lungs due to exposure to dust, ash, and chemicals when working for employer. Dr. Poole, an industrial hygienist, collected bed ash samples on two occasions when claimant was employed and testified the majority of the particles were outside the respirable range and trace metals in the bed ash were too low to be of concern. He concluded claimant was not exposed to bed ash above the permissible exposure limit The ALJ concluded this was insufficient to rebut the §20(a) presumption because it was not clear claimant was only exposed to bed ash or that the samples were representative of claimant’s exposure. The ALJ concluded, and the Board agreed this was not sufficient to rebut the §20(a) presumption.

Dr. McCluskey examined claimant and concluded there was no objective or scientifically reliable evidence to suggest claimant suffered any persistent or chronic health consequences as a direct result of any exposure he may have encountered while working for employer. The ALJ held this did not rebut the §20(a) presumption because it did not address aggravation of claimant’s condition. It did not establish it was more likely than not that claimant’s work exposure did not cause, contribute, or aggravate his respiratory conditions. The Board could not ascertain the basis for the ALJ’s’ implicit finding that the claim was based on an aggravation theory of recovery. It vacated and remanded to determine if claimant raised an aggravation claim. It also instructed the ALJ to reconsider Dr. McCluskey’s opinion to determine if a reasonable mind could accept his opinion as adequate to support a finding that workplace conditions did not cause claimant’s injury or aggravate a preexisting condition.

Defense Base Act

Zone of special danger covers citizens of locality and off duty activity. Chugach Mgmt. Services v. Jetnil, 863 F.2d 1168 (9th Cir. 15-72873, 07/21/17).

Claimant, a citizen of the Republic of the Marshall Islands, worked for a company that provided logistical support for a missile defense test operated by the US Army. He went to a small uninhabited island to work on some of the equipment. When fishing after work hours he injured his foot on a reef. The BRB held he was in the zone of special danger when injured. Jentil lv. Chugach Management Services, (BRB 14-0361, 2015). On appeal, employer argued the zone of special danger doctrine should not be applied in cases involving local nationals who are injured working in their home countries. The Court disagreed. The plain language of the DBA did not distinguish between employees sent abroad from their home country and local nationals. Congress expanded DBA coverage to local nationals in 1958 after the Supreme Court had announced the zone of special danger doctrine in O’Leary v. Brown-Pacific-Maxon, Inc., 340 US 504 (1951), indicating Congress intended to permit application of the zone of special danger doctrine to local nationals. O’Leary and its progeny almost without exception do not distinguish between employees sent abroad from their home country and local nationals when determining if an injury arose out of the conditions of employment. Almost all of the justifications for the zone of special danger doctrine apply with equal force to local nationals working in remote areas as to employees working away form their home country. Concluding the zone of special danger doctrine does not apply to local nationals injured in their home country would lead to irrational results and contradictory caselaw.

Labor market survey of overseas employment not relevant in every DBA claim. Herfi v. Global Linguist Solutions LLC, 2017 DOLBRB LESIX 199 (BRB 16-0691, 07/19/17) (unpublished).

Claimant’s only overseas work was with L-3 Communications and Global Linguist Solutions from 2007 until an injury in Iraq in 2010. After the injury claimant returned to his home in San Diego. He contacted his employer about returning to work a few months after the injury but otherwise did not return to work or seek work. The ALJ disregarded labor market surveys of overseas jobs because it was outside claimant’s relevant labor market but awarded PPD thereafter based on a labor market study of jobs within reasonable commuting distance of claimant’s domestic residence. Employer challenged the award of PTD preceding the domestic labor market survey. The ALJ interpreted prior case law as holding there is no duty to seek overseas employment after recovering from an overseas injury, but if a claimant pursues overseas work after reaching maximum medical improvement, overseas jobs become relevant alternative employment. The Board affirmed. There is no requirement in case law that overseas jobs must be considered when defining the relevant labor market for every DBA claimant.

Hearings – Issues

ALJ can determine responsibility for injury but cannot interpret indemnity agreement. Walton v. SSA Containers, Inc. (BRB 16-0549, 05/30/17) (unpublished).

On February 18, 2011 claimant injured both knees and his low back when working for SSA. She worked intermittently thereafter due to flares of pain and swelling in her knees and last worked on October 2, 2011 for Ports America, leaving work due to unbearable knee pain. She filed a claim with SSA for the February 18, 2011 injury and with Ports America for cumulative trauma injuries to back and knees. On August 7, 2013 an ALJ approved a §8(i) agreement wherein SSA and Ports paid claimant $23,000 to discharge all liability for disability. Ports agreed to be responsible for future medical treatment for the left knee only but reserved the right to dispute liability based on work activities after October 2, 2011. Liability for past medical treatment was not resolved. Both employers denied liability but agreed to hold claimant harmless with respect to prior medical expenses. They contend claimant received unauthorized treatment, including a left total knee arthroplasty. In a separate agreement, SSA paid Ports $10,000, and Ports agreed to defend, indemnity, and hold SSA harmless in relation to claimant’s claim for the February 18, 2011 injury.

Several years later claimant filed a state workers’ compensation claim for back and knee injuries on February 18, 2011 (SSA), February 23, 2014 (LBCT), and March 6, 2014 (SSA). The Motion Picture Industry Health Plan (MPIHP), claimant’s private health provider, filed a lien before the California Workers’ Compensation Appeals Board for $81,450.79 in past medical benefits paid as of February 18, 2011. This included services for past treatment SSA and Ports disputed and left unresolved in the §8(i) agreement. SSA tendered defense of the lien to Ports in the state proceeding. Ports declined, contending the indemnity agreement only applied to LHWCA claims. SSA requested an informal conference. The OWCP adjuster concluded OWCP did not have jurisdiction to enforce the indemnity agreement. SSA requested referral to the OALJ. SSA filed a motion for summary decision, asking the ALJ to order Ports to reimburse MPIHP for back and knee treatment from October 2, 2011 to December 12, 2013. SSA argued it was not seeking enforcement of the indemnity agreement. The §8(i) agreement reserved the right to litigate liability for past medical benefits. The ALJ dismissed the claim, stating he lacked jurisdiction. SSA appealed.

The Board agreed the ALJ lacked jurisdiction to enforce the indemnity agreement as it was not “in respect of a claim.” Also, the ALJ could not order reimbursement to MPIHP because MPIHP had not intervened. Nevertheless, the ALJ had jurisdiction to determine which employer was the responsible employer as it relates to liability for medical benefits. Questions in respect of a claim are those that are essential to resolving the rights and labilities of the claimant, the employer, and the insurer under the Act. By asking the ALJ to resolve which employer is liable for past medical benefits for injuries covered by the Act, SSA raised an issue in respect of a claim that the ALJ was empowered to resolve. On remand the ALJ must determine if SSA demonstrated the absence f a genuine issue of material fact that entitled it to a decision in its favor as a matter of law as to which employer is liable for past medical benefits.

Hearing – Other

Error to rely on stipulation that was incorrect statement of law and not supported by facts Malta v. Wood Group PSN, Inc., 2017 DOLBRB LEXIS 131 (BRB 16-0552, 04/13/17) (unpublished).

In Malta v. Wood Group Production Services, (BRB 14-0312, 2015), the Board held claimant was on a covered situs when on a fixed platform used to load and unload vessels. It remanded to determine if claimant had status (maritime employment). After a second hearing the parties submitted a stipulation that awarded claimant $289.48 per week but preserved modification and a right to settle per §8(i). Additionally, employer reserved the right to all appellate remedies. The ALJ adopted the stipulation. On appeal, employer objected to the ALJ’s “finding” claimant was a maritime employee, contending claimant lacked status and was not entitled to compensation. The Board vacated the ALJ’s order. A stipulation is an express waiver conceding the truth of some alleged facts but stipulations offered in lieu of factual evidence are not binding on any party if they evince an incorrect application of law. The Stipulation improperly interpreted the Boards prior decision and employer’s reservation of a right to challenge the stipulated facts reflects its intent to not be bound by the stipulations. The Board’s prior decision did not address status.

Hearings – Other; Appeals – Final Orders;

ALJ’s order was not specific and not subject to appeal. Grabert v. BESCO Tubular, 2017 DOLBRB LEXIS 203 (BRB 17-0314, 07/25/17) (unpublished); Boudreaux v Owensby & Kritikos, Inc., 2017 DOLBRB LEXIS 202 (BRB 17-0256, 17-0256A, 07/06/17) (unpublished).

In Grabert in an earlier appeal the Board remanded the claim to the ALJ for an award of benefits. The ALJ ordered employer to “pay compensation and medical benefits as provided by the Act” but did not state the precise compensation owed. In Boudreaux the ALJ issued an order requiring employer to “forthwith carry out authorizations and actions in accordance with the provisions of the agreed stipulations” but the order did not set forth a specific award of benefits to claimant and it did not address ongoing benefits if so entitled. In both cases employer appealed, seeking an order it could appeal to the Court of Appeals, and in both cases the Director moved to dismiss the appeal. The Board agreed with the director. The orders were not final compensation orders because they did not “make an award” or “reject the claim” as required by §19(c). It was incumbent on the ALJ to award claimant specific types of benefits at specific compensation rates and include an award of ongoing benefits if so entitled.

Award of TTD cannot be limited to date of MMI or to limited number of months or years. Alexander v. Navy Exchange Service Command, 2017 DOLBRB LEXIS 214 (BRB 16-0561, 07/19/17) (unpublished).

The ALJ awarded claimant TTD and past and future medical benefits for bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. The order states: “Employer shall pay to Claimant compensation for her temporary total disability from August 1, 2013, to the date of maximum medical improvement, based on an average weekly age of $841.90, such compensation to be computed under §8(b) of the Act.” Claimant appealed. The Board held the order improperly limited claimant’s award. An award that continues only until the date of maximum medical improvement contravenes §22 of the Act and is not enforceable by claimant. The record does not contain factual evidence regarding a date certain for the termination of TTD, so such benefits must be awarded on a continuing basis and the award remains in effect unless and until it is modified per §22. Under the current order claimant could not be able to seek enforcement of the “award” in the event employer unilaterally terminated compensation. To be enforceable a sum certain must be calculable without resort to extra-record facts regarding claimant’s disability status.

Maximum Medical Improvement

ALJ can make retrospective determination of maximum medical improvement date. Dalton v. Maritime Services Corporation, 2017 US App LEXIS 14932 (9th Cir., 15-70490, 8/11/17) (unpublished).

The attending physician referred claimant to other physicians to evaluate his condition and provide or recommend treatment. None of the other physicians recommended treatment. The ALJ concluded claimant was at maximum medical improvement on March 4, 2014 when a physician performed a closing examination and found he had reached maximum improvement. The attending physician concluded, in retrospect, claimant was at maximum medical improvement on a much earlier date because none of the physicians to whom claimant had been referred recommended treatment. (Claimant wanted the earlier date because claimant would have qualified for an earlier October 1 adjustment of his PTD award.) The Court concluded substantial evidence supported the ALJ’s determination even though a case could be made for other dates. In a footnote the Court said it was error to conclude a doctor cannot retrospectively determine the maximum improvement date. An ALJ may credit a doctor’s retrospective determination. Nevertheless, the error was harmless because the Board and the ALJ relied on other reasons for selecting the March 2004 date.

Medical Services – Choice of Physician; Evidence – Other

If causation not proven choice of physician is irrelevant; Claimant can seek litigation report at his own expense. Williams v. Huntington Ingalls, Inc., 2017 DOLBRB LEXIS 120(BRB 16-0387, 04/19/17) (unpublished).

In 1993 Dr. Wiggins released claimant to return to work after a neck injury with no permanent disability and no work restrictions. Claimant did not seek additional treatment until 2014, when he returned to Dr. Wiggins complaining of chronic neck pain. Dr. Wiggins diagnosed cervical spondylosis. Claimant returned to work until he retired four months later and then alleged he retired due to the natural progression of his work related injury. He also contended Dr. Wiggins was not his free choice and he should be allowed to see Dr. Lee before the claim is litigated. The ALJ concluded claimant’s neck condition was not related to his injury and did not address his request to consult a new physician. The Board held the lack of a causal relationship between his work accident and the present condition precluded him from selecting a new physician at employer’s expense. Essentially, claimant wanted employer to pay for a medical opinion to support his litigation position. Claimant could seek another opinion at his own expense and request modification of the ALJ’s causation finding.

Medical Services – Other

OWCP fee schedule trumps private insurance reimbursement rate. Watson and Wardell Orthopedics, PC v. Huntington Ingalls Industries, Inc. (BRB 16-0545, 06/30/17) (unpublished).

Wardell Orthopedics requested payment of $8,113.00 for compensable medical services. Employer paid $3,113.60, citing contracts indicating Wardell would accept the lower amount from private insurers OneNet, Procura, and MCMC. Wardell filed a claim with the District Director. The District director ordered payment of an additional $1,374.26 based on the OWCP Medical Fee Schedule. Employer disagreed and requested transfer to the OALJ. After transfer it filed a motion to dismiss, asserting the dispute concerned interpretation of a private contact over which the OALJ lacked jurisdiction. The ALJ denied the motion. Employer appealed. The Board concluded the matter qualified for review even though it was an interlocutory order. It had jurisdiction because the dispute concerns how much must be paid under the Act. The fee is limited to such charges as prevail in the community in which the medical provider is located. The ALJ lacks authority to resolve any party’s rights under the private contracts. Under the Act, employer is liable, at most, for medical charges at the prevailing rates set forth in the OWCP Medical Fee Schedule. Other rates, pursuant to private contacts, are beyond the scope of the claim and are unnecessary to the objective of the LHWC proceedings. Employer’s contract based defense cannot be adjudicated by the ALJ, but the ALJ had authority to determine fees permitted by the Act and its implementing regulations.

Permanent Disability – Hearing Loss Claims

Audiogram long after last maritime employment can reflect loss at time of employment in absence of credible evidence to the contrary. Roy v. Cooper/T.Smith, Inc. (BRB 16-0603, 05/18/17) (unpublished).

Claimant worked as a longshoreman for at least 20 years until 1991 when he retired. His last day of work was for Cooper on September 11, 1991. He could not remember the type of work he did but said it was noisy. His second to last day was on September 10, 1991 for Ryan Walsh. He testified he worked on pipes. He had an audiogram on April 5, 2012 showing 33.8% impairment, including 5% for tinnitus. The ALJ concluded the audiogram was not presumptive evidence of loss because he could not determine who administered it. He agreed claimant had an impairment in 2012 but thought claimant had not sustained his burden of establishing he had a measurable ratable hearing impairment when he left covered employment in 1991 and had not proved he had impairment form tinnitus. He therefore denied the claim.

The Board held the audiogram was entitled to some probative weigh even if not presumptive evidence of the extent of impairment. The report indicated it was administered by Paula Watson, a Doctor of Audiology with a Certificate of Clinical Competence in Audiology and Dr. Watson said reliability was fair. The ALJ must reconsider the reliability of the audiogram as it related to the harm element of claimant’s prima facie case. Additionally, the claimant need not recreate the precise extent of loss at the date covered employment terminated. In the absence of credible evidence regarding the extent of loss at the time covered employment ends, the ALJ may evaluate all the evidence to determine the extent of the work related loss.

Permanent Disability – PTD

PTD rate not based on pre-PTD §10(f) adjustments. Long v. Electric Boat Corporation (BRB 16-0616, 05/25/17) (unpublished).

Claimant was injured March 15, 1989. His average weekly wage was $581.63. He returned to less physically demanding work and was awarded PPD as of May 31, 1994. Employer was granted §8(f) relief. On November 24, 2014 claimant became unable to work. After a hearing he was awarded PTD as of November 25, 2014 at $724.00 per week, a rate that included all §10(f) adjustments beginning October 1, 1989. The Director appealed, contending the correct initial PTD rate was $387.75. The Board agreed, citing Phillips v. Marine Concrete Structures, Inc., 895 F.2d 1033 (5th Cir. 1990) (en banc) and Lozada v. Director OWCP, 903 F.2d 168 (2d Cir. 1990). Upon reaching PTD, §10(f) adjustments for prior periods of TTD are not included in the compensation rate. The Board is not empowered to overrule unambiguous statutory language based on equitable considerations but must adhere to the plain meaning of the statute.

Permanent Disability – Scheduled PPD

No de minimis award for scheduled injury. Kerr v. SSA (BRB 16-0399 (05/23/17) (unpublished).

Claimant sustained compensable injuries to his knees and thoracic spine but failed to prove his lumbar condition was compensable or that he sustained a loss of earning capacity due to an unscheduled injury. Claimant received PPD for each knee but argued he should receive a nominal (de minimis) award because he will need bilateral knee replacement surgery in the future. The Board held, as it has in the past, nominal awards are inapplicable to scheduled injuries.

Responsibility – Last Injurious Exposure Rule

When last employer accepts the claim, litigation against next to last should end. Reagan v. Thames Shipyard & Repair (BRB 16-0682, 05/11/17) (unpublished).

Decedent developed lung cancer and died due to exposure to asbestos. His surviving spouse sought compensation for disability and death benefits for the last two employers, Thames Shipyard and Repair and Electric Boat Corporation (EBC). Pursuant to stipulations of claimant and EBC the District Director issued a compensation order requiring EBC to pay disability, medical, funeral, and death benefits. The order was not appealed. Claimant refused to withdraw the claim against Thames because if EBC became insolvent and the Special Fund refused to pay, Thames could be liable. The case was referred to the OALJ. The ALJ granted Thames motion for summary decision. Claimant appealed and the Board affirmed.

Contrary to claimant’s contentions there is no basis in law for her supposition she could recover compensation from Thames if EBC became insolvent. All liability was assigned to the last responsible employer. There can only be one responsible employer in occupational disease cases.

Third Party – Notice/Consent

Civil defendant was a third party, not a borrowed employee. §33 bar. Mays v. Huntington Ingalls, Inc. 2017 DOLBRB LEXIS 195 (BRB 16-0645, 07/28/17) (unpublished).

Claimant sustained a serious eye injury when kicked in the face by another worker, John Gliott, during an altercation at work. Claimant’s employer, Huntington Ingalls, contracted with International Marine to clean and sandblast tanks on a ship on which claimant and Gliott worked. International Marine hired Gliott, among others, to do the work. International supervised its own works, provided them with tools and equipment, and retained the authority to fire them, thought Huntington had the right to remove them from its facility. International provided its own certificates of workers’ compensation and liability insurance. Its employees wore different badges. International paid its own workers, and these employees left Huntington’s premises when the project was completed. Claimant filed and settled a civil suit against Gliott but argued Gliott was Huntington’s borrowed employee and therefore not a third party. The ALJ applied the factors discussed in Ruiz v. Shell Oil, 413 F.2d 320 (5th Cir. 1969) and concluded Gliott worked for International and was not Huntington’s borrowed servant. The Board affirmed. The ALJ focused on certain facts, particularly that International supervised Gliott, paid him, supplied his tools and equipment, provided his insurance, and retained authority to fire him. These facts support the finding that International controlled Gliott’s work. There was no agreement between employers that Gliott would become employer’s servant. As claimant settled a claim with a third party for less than the compensation to which he was entitled without employer’s consent, per §33 claimant waived entitlement to compensation.

I will be speaking at the DOL West Coast Symposium in San Francisco on September 8, 2017. Event information can be found at http://www.cvent.com/events/dol-west-coast-symposium/agenda-b7be993eaf204be9a95f5be3372bf3b2.aspx?i=1b3b2f35-3afd-48ed-b6bb-4ec4be712693. If you have any questions about the LHWCA or decisions in the quarterly review please contact me at any time. Please let me know if you will be at the September 8 conference.