December 4, 2017
by Norman Cole

LHWCA Caselaw Update

There were several attorney fee decisions.  All were unpublished and therefore only instructive rather than precedent.  In Abassi v. Misson Essential Personnel and Yunis v. Academi, LLC, ALJ’s had based an award in part on fee awards from the district court.  The Board directed the ALJ’s to explain how the district court decisions were selected, the market analysis provided in each, and how district court awards were for services by lawyers of comparable skill, experience, and reputation.  In Anderson v. Hawaii Stevedores, Inc., the Board affirmed denial of costs when claimant’s attorneys failed to provide documentation verifying the amount, relevance, and necessity of costs.

In Hardman v. Marine Terminals Corporation the claimant’s attorney performed services in 2007 through 2011 and from 2013 through 2015.  The district director determined a baseline rate for 2011 and then adjusted rates in subsequent years according o the change in the national consumer price index.  To account for delay he awarded 2007 through 2011 fees at 2016 rates but awarded 2014 and 2015 services at 2014 and 2015 rates because the delay was “ordinary” delay and did not justify an adjustment for delay.  This method is possibly inconsistent with an unpublished 9th Circuit decision, Modar v. Maritime Services Corporation, 632 Fed. Appx. 909 (9th Cir. 2015), where the district director in  2012 awarded 2008 rates for services performed in 2004 and 2005 but the court thought claimant’s attorney should be compensated at current rates.  Also, the national CPI does not necessarily reflect the change in cost of living in the locality where the attorney performed services.  Charles Robinowitz represented Hardman and Modar, so an appeal to the 9th Circuit is possible.

In the medical services arena, in Luis Pena Garcia v. Calzadilla Construction Co. the claimant lived in Puerto Rico but wanted to go to New York for an injury related surgery.  The employer authorized the surgery if done in Puerto Rico but advised claimant if he went to New York it would only pay Puerto Rico rates for services.  There was evidence it was not necessary to have the surgery in New York.  The ALJ sided with the employer (and the claimant’s attorney did not receive a fee).  In Jones v. Huntington Ingalls, Inc., a published decision, the Board held the claimant had a right to select a physician of his choice, but as an audiologist was not a physician the employer could require the claimant to obtain hearing aids from a vendor of its choice.  This decision also means employers and insurers can require workers to fill prescriptions at designated pharmacies.

In Hirsch v. Electric Boat Corporation the ALJ thought the preponderance of medical evidence indicated claimant’s COPD was not due to grinding dust, welding fumes, and diesel fumes.  Claimant contended it was due to tobacco smoke because employer allowed him to smoke at work.  Smoking was voluntary and not required of his job.  It was not peculiar to employment and therefore could not cause an occupational disease.  At the hearing level claimant did not argue he had exposure from other workers who smoked.  The Board refused to address this argument on appeal.

There were several decisions dealing with whether a worker could prevail based on lay testimony alone.  In Harrison v. Huntington Ingalls Industries, the Board held claimant’s testimony that her use of steel toed shoes aggravated a problem in he foot was sufficient to invoke the §20 presumption, but in Selthon v. Jones Stevedoring Co, the ALJ concluded claimant’s testimony was insufficient to prove his hearing had deteriorated, necessitating new hearing aids.

Also in Jones v. Huntington Ingalls, Inc., the ALJ was admonished to accept a stipulation even if not supported by the evidence in the record because stipulations made by parties are binding upon those enter into them.  In Van Boening v. Blackwater Security Consulting LLC, the district director was admonished to issue a compensation order consistent with the agreement of the parties.  The district director had no authority to issue an order with other terms.

A note regarding citations in the quarterly review, for those among you who may be interested:  The Board posts published and unpublished decisions at, usually several at a time.  LEXIS updates its database of Board decisions monthly, so it is not unusual to find decision on the Board website that is not yet in LEXIS.  When I have the LEXIS citation, I list it.  Otherwise, I list the BRB number and date of decision which allows the reader to find the decision on the BRB website.

Attorney Fees – Amount

ALJ must explain references to district court decisions.  Proper to reduce rate when claimant’s attorney filed fee petition and reply to objections after deadline.  Abassi v. Mission Essential Personnel (BRB 17-0059, 9/28/17) (unpublished).

ALJ reduced requested rate from $450 to $350.34 after examining counsel’s affidavit, affidavits from three local attorneys, awards counsel received in other DBA claims, and eight fee awards issued by the District Court.  The ALJ applied an additional reduction, to $325, because counsel filed the fee petition five months after the deadline and filed the reply to objections six weeks after objections were filed.  The ALJ found affidavits of other attorneys unpersuasive.  Fee orders were unpersuasive because they were uncontested cases.  On appeal, these conclusions were rational and within the ALJ’s discretion.  The ALJ erred in basing a market rate finding on eight fee awards from the District court because the ALJ did not explain how these cases were chosen, the market analysis provided in each, and how they represented similar services by lawyers of comparable skill, experience, and reputation.  On remand the ALJ must provide a sufficient explanation.  As the ALJ imposed a 30 day deadline for filing the fee petition and counsel’s petition was not filed until over 5 months after the deadline, counsel did not show the ALJ abused his discretion in reducing the hourly rate for this reason.

ALJ must explain how district court fee awards are relevant and give petitioner an opportunity to comment.  Yunis v. Academi, LLC (BRB 17-0058, 9/28/17) (unpublished).

Attorney Lerner requested a fee based at $465/hour based on awards under the DBA to him and his partner, adjusted according to the change in the NAWW.  The ALJ averaged a $465 rate awarded to Lerner in a 2015 DBA claim with hourly rates awarded in eight fee decisions in the Southern District of Florida in 2015 and 2016 to calculate an hourly rate of $350.38.  The Board held the ALJ erred by rejecting counsel’s market rate evidence merely on the basis it consisted of prior awards without ascertaining if prior awards were based on market rate analysis.  The ALJ did not provide an explanation as to how the eight district court cases were chosen from among all fee awards in the relevant time frame, the market analysis provided in each case, and how these cases represent similar services by lawyers of comparable skill, experience, and reputation.  Also, the ALJ did not allow claimant’s counsel an opportunity to challenge the ALJ’s findings these cases were relevant to establishing a market rate.  The Board remanded with instructions to provide a sufficient explanation of the market rate determination.

Fee for San Francisco attorney who represented Hawaii claimant based on Hawaii labor market.  Costs denied when not itemized or explained.  Anderson v. Hawaii Stevedores, Inc. (BRB 17-0281, 10/31/17) (unpublished).

Claimant and employer were located in Hawaii and injury was in Hawaii.  Treating physicians and nearly all treatment was in Hawaii.  The hearing was in Hawaii.  Claimant’s counsel, from San Francisco, held himself out as doing longshore work in Hawaii and maintained an office in Honolulu.  Claimant’s attorney requested $264,325.05 for fees and costs.  The ALJ held Hawaii was the relevant market and approved $156,593.93.  In disallowing $3,105 of requested costs the ALJ held the submission lacked documentation verifying the amount, relevance, and necessity of cost.

On appeal, BRB held the ALJ had adequate justification to find Hawaii was the relevant community.  The ALJ properly denied some costs because counsel did not explain how they related to the claim or to the services rendered.  There was no abuse of discretion.

Fee mitigated when tender refused.  Hardman v. Marine Terminals Corporation (17-0097, 10/18/17) (unpublished).

The district director awarded fees. Attorney (Charles Robinowitz) appealed.  On February 16, 2016 Employer offered settlement based on a rate greater than that awarded by the district director.  The Board remanded and on remand the district director awarded a different fee, but at a rate lower than the amount tendered February 16, 2016.  On a second appeal the Board agreed employer was not liable for work that would have been unnecessary if counsel had accepted the higher offer of fees.

Voluntary payment before informal proceedings results in no fee.  Nelson v. ICTSI Oregon, Inc., 2017 DOLBRB LEXIS 228 (BRB 17-0012, 8/23/17).

As of January 9, 2013 employer began payment to claimant at the minimum compensation rate because client’s wage information was not available.  On January 18, 2013 the district director received an LS-203 claim from claimant’s counsel dated January 15, 2013 asserting a discrepancy between claimant’s prior earnings and the compensation rate.  On January 23, 2013 the district director served the claim on employer and on January 25, 2013 the district director received notice from employer it was now paying compensation at the maximum compensation rate.  Claimant’s counsel requested but then withdrew a request for an informal conference because claimant was receiving an appropriate compensation rate.  He then filed a petition for fees.  The district director awarded fees, concluded there was a controversy, counsel’s actions prompted the increase.  Employer appealed.  The Board reversed.  Where an employer pays benefits voluntarily without resort to informal or formal proceedings the employer cannot be held liable for an attorney fee per §28(b).  Here, any “controversy” as to the amount of compensation to be paid was resolved before any informal proceedings were convened, as employer voluntarily increased benefits to the maximum rate upon receipt of claimant’s wage records.  The only remaining dispute thereafter concerned claimant’s counsel’s entitlement to an attorney fee.

Rates not adjusted for two year or less delay but yearly rate adjusted based on national CPI.  Hardman v. Marine Terminals Corporation (17-0097, 10/18/17) (unpublished).

Following a settlement claimant’s attorney (Charles Robinowitz) filed a petition for fees performed before the OWCP from September 25, 2007 and May 18, 2014, seeking $450 per hour.  On November 2, 2015 the district director awarded fees based on a baseline hourly rate of $385 in 2011 and an adjustment in 2014 fees based on the 2014 federal locality pay increase for Portland, Oregon.  In a prior appeal the Board affirmed the baseline rate but remanded because it was error to rely on the Federal locality rate and the district director failed to adequately account for delay.  On remand the district director adjusted the base rate according to the change in the national consumer price index, as follows:

2011 $385.00 2014 $405.19
2012 not stated 2015 not stated
2013 $398.72 2016 $412.24

He awarded $412.24 per hour or services from 2007 to 2011 to account for delay.  Viewing the delay from 2013 and 2014 to November 2, 2015, when fees were awarded, as less than two years, he awarded 2013 services at $398.72 per hour and 2014 services at $405.19 per hour.

On appeal a second time the Board affirmed.  Use of the national CPI was not arbitrary, capricious, based on an abuse of discretion, or not in accordance of law.  The delay between the performance of services in 2013 and 2014 was “ordinary” delay under the Act.

The Board also addressed a petition for fees rendered in the prior appeal, now requesting $466 per hour with a 16.7% reduction for lack of full success.  After disallowing some time due to employer’s tender and for partial lack of success the Board allowed an hourly rate of $450 per hour for reasons stated in recent Board fee orders.

Attorney Fee – Entitlement

No fee when employer agreed to pay for surgery in Puerto Rico but not in New York.   Luis Pena Garcia v. Calzadilla Construction Corporation (BRB 17-0103 (9/13/17) (unpublished).

After receiving an award of PTD claimant requested approval for a multi-level lumbar surgery in New York.  Employer agreed the surgery was reasonable, necessary, and related to the injury but asserted it should be performed in Puerto Rico.  ALJ held claimant could have his surgery anywhere he chooses but employer was liable only for the costs associated with obtaining the procedure and rehabilitation in Puerto Rico.  Claimant’s counsel submitted a petition for fees of $60,515 and costs of $4,000.  The ALJ held claimant’s attorney was not entitled to fees or costs because he failed to establish employer’s liability for the cost of surgery and rehabilitation in New York.  The Board affirmed.  Claimant did not obtain tangible benefit that employer had denied him.

Average Weekly Wage – §10(a)

10(a) not applicable when schedule is irregular. Cooley v. Coastal Cargo of Texas, Inc., 2017 DOLBRB Lexis 231 (BRB 17-0069, 8/15/17) (unpublished).

            Claimant worked as a casual laborer when ships came into port. In the year before an August 16, 2014 injury he did worked 199 days even though he not work from November 12 to December 12, 2013 and from December 23, 2013 to January 10, 2014.  Sometimes he worked 20 hours per week.  Sometimes he worked 80 hours per week.  Claimant argued his average weekly wage should be calculated per §10(a) because in the year before the injury he worked 199 out of 365 days, 48 of 52 weeks, and averaged six days per week.  The ALJ concluded he worked 55% of the year (365 ÷ 199) and therefore did not work substantially the whole of the year before the injury.  Also, because of the irregular, discontinuous, and unpredictable schedule he was neither a five day or a six day per week worker.  Therefore he was not entitled to a §10(a) calculation.  The ALJ divided annual earnings by 52 to calculate average weekly age.  On appeal, the Board concluded claimant worked 199 days out of a theoretical 260 available work days for a five day per week worker or a theoretical 300 available work days for a six day per worker, i.e., more than 55%.  Nevertheless, this was harmless error because the ALJ’s determination claimant was neither a five or a six day worker was supported by evidence his work was irregular, discontinuous, and unpredictable and a §10(a) calculation would result in an annual earning capacity higher than claimant could earn as a casual employee.

Average Weekly Wage – §10(c)

Blended average weekly wage not always required.  Osman v. Mission Essential Personnel, LLC (BRB 17-0077, 9/14/17) (unpublished).

Claimant was injured when working for employer as translator in Afghanistan on August 3, 2009. She had received positive performance reviews and had been invited to reapply for an overseas translator positon in 2012.  The ALJ calculated average weekly wage by dividing overseas earnings by the 40 weeks worked in Afghanistan for employer, believing this best reflected earning capacity at time of injury.  On appeal employer argued it was unreasonable to calculate average weekly wage solely on overseas earnings because she did not complete the entirety of her overseas contract.  The Board disagreed.  The ALJ’s calculation was based on the specific facts of this case, was rational, supported by substantial evidence, and within the ALJ’s broad discretion under §10(c).

Causation – Occupational Disease Claims

Smoking at work not peculiar to employment, so not cause of COPD.  Hirsch v. Electric Boat Corporation (BRB 17-0119, 9/21/17) (unpublished).

Welder/pipefitter sought compensation for COPD who one doctor reported was primarily due to smoking but with some contribution from work exposure to grinding dust, welding fumes, and diesel fumes.  Claimant testified until the last 10-15 years of employment employer allowed its employees to smoke cigarettes while working.  The ALJ relied on employer’s medical evidence to conclude claimant’s condition was unrelated to asbestos, grinding dust, welding fumes, and diesel fumes.  ALJ also concluded any smoking related disease was not compensable because smoking was voluntary and not required of his job.  On appeal, the BRB held the ALJ’s findings were supported by substantial evidence and, with respect to smoking, coverage was limited to diseases that arise from hazards specific to employment as distinguished from employment generally.  Smoking was a personal activity permitted by employer.  This was insufficient to bring the claim within the Act’s coverage.  Claimant was not required to smoke and claimant presented no evidence smoking at work was more hazardous than smoking elsewhere.

Note:  At the OALJ level claimant did not argue his COPD was due to second hand smoke inhalation.  The Board declined to consider this argument on appeal.

Causation – §20 Presumption

Medical evidence not required to invoke §20 presumption.  Claimant’s credible testimony alone can be enough.  Harrison v. Huntington Ingalls Industries, Inc. (BRB 17-0138, 9/13/17) (unpublished).

Claimant worked for more than 30 years for employer as a tool clerk and testified she was required to stand a lot and to wear steel toed shoes.  She testified she started to experience problems with her left foot in 2012 when her shoes rubbed the side of her foot.  Her employer would not allow her to change to a hard top shoe.  In August 2013 her left fifth toe was amputated and in December 2014 she had surgery on her left fourth toe.  She returned to work in March 2015.  She sought compensation, alleging her foot condition was aggravated by having to wear steel toed shoes at work.  Dr. Mawusi opined “claimant should change job positions due to adverse affect [sic] to her feet” and standing all day and wearing steel toed shoes had contributed to the 5th toe amputation.  In another note he attributed the amputation to claimant’s falling in a gas station.  The ALJ concluded claimant had not invoked the §20 presumption as the evidence as a whole failed to demonstrate conditions existed at work that could have caused, aggravated, or accelerated claimant’s pre-existing left foot diabetic condition, peripheral neuropathy, or hammertoe digits.  The Board held the ALJ failed to properly apply §20(a).  Claimant is not required to produce affirmative medical evidence to establish a prima facie case. Claimant need only establish the existence of an accident or working conditions that could have caused or aggravated the harm.  The ALJ erred in requiring claimant to prove by a preponderance of the evidence her standing and wearing steel toed shoes at work actually caused her disabling foot condition.  That Dr. Mawusi did not affirmatively link the 4th toe injury to claimant’s steel toed shoes or that he did not describe how claimant’s work affected her condition medically is not dispositive for purposes of claimant’s prima facie case.  A claimant’s credible testimony alone can be sufficient to establish a primary facie case.

Credit – Other Claims

Attorney fee paid by claimant in prior claim for same disability did not reduce employer’s credit.  Harwell v. SSA Cooper LLC (BRB 17-0296, 10/12/17) (unpublished).

When claimant filed his first claim for hearing loss employer paid claimant $25,388.77 for 10.1% binaural hearing loss.  The District director issued a Compensation Order approving a fee of $1,500 payable by claimant.  Claimant paid the fee.  He continued to work for employer and suffered additional hearing loss, for which he filed a second claim.  The parties agreed claimant had 17.5% binaural impairment worth $48,195.70.  Employer took credit for $25,388.77 and paid the balance.  Claimant asserted the credit was limited to claimant’s net recovery after payment of the $1,500 fee, i.e. $23,888.77.  The ALJ rejected claimant’s contention and the Board affirmed.  That claimant had to pay his own fee per §28(c) cannot reduce employer’s credit for the disability compensation it previously paid.  Denying employer a credit for the amount claimant paid in attorney fees would have the effect of making employer liable for the attorney fee when the fee shifting provision of §28(a) or §28(b) are not applicable.

Evidence – Other

Claimant’s testimony alone insufficient to prove entitlement to new hearing aid.  Selthon v. Jones Stevedoring Co., on reconsideration, 2017 DOLBRB LEXIS 245 (BRB 16-0658, 8/4/17) (unpublished).

Claimant wore hearing aids at the time of his work injury and testified his hearing “changed dramatically” after the injury and steadily got worse.  He provided no records from the audiologist concerning test results.  The ALJ declined to find new hearing aids were reasonable and necessary for claimant’s work related hearing loss, and the Board affirmed.  Claimant’s testimony alone was insufficient to establish the elements of the claim for medical benefits.

Exclusions – Jones Act

Barge Maintainer who inspected barges before voyage not a Jones Act seaman.  Tilcon N.Y. Inc. v. Volk, 2017 US App LEXIS 21321 (2d Cir. 2017).

Tilcon processed quarried rock for use in construction and loaded the rock onto barges supplied by Buchanan.  Buchanan transported the loaded barges, using tugboats, down the Hudson River to Tilcon’s customers.  Plaintiff worked for Buchanan as a barge maintainer.  A barge maintainer checked empty barges, tied to the dock, for damage and excess water and repaired any damage before loading.  Then, Tilcon moved the barge to a loading facility where it was loaded with rock. After loading it was moved back to the dock, where a barge maintainer conducted the final inspection.  Plaintiff was inspecting a moored barge when he slipped on some loose stones, fell, and sustained injuries.  He asserted claims against the barge company (Buchanan) as his employer, the owner of the barge, and the operator of the rock processing facility under the Jones Act, LHWCA, general maritime law, and New York law.

Plaintiff was not a seaman under the Jones Act because he was not a crew member of and did not serve on the Buchanan tugboats.  He belonged to a union that represented equipment operators rather than a maritime union and did not hold a maritime license or other seaman papers.  He never spent the night on a barge, worked an hourly shift, and went home every night after his shift ended.  Unlike a traditional Jones Act seaman, he did not serve for voyages or tours of duty.  None of his work was of a seagoing nature. He did not go to sea and was not exposed to the perils of the sea in the manner associated with seaman status.

Hearings – Other

When parties stipulate claim is compensable ALJ must accept the stipulation.  Jones v. Huntington Ingalls, Inc. (BRB 16-0690, 10/10/17).

Employer and claimant stipulated claimant had a work related hearing loss for which hearing aids were recommended.  They disputed the extent of impairment.  Without prior notice to the parties, the ALJ rejected the stipulation and concluded the hearing loss was not work related.  The Board held the ALJ erred in rejecting the stipulated acceptance of the claim because “whether the record evidence could support the fact stipulated, i.e., causation, is not relevant to the acceptance of the stipulation.” Stipulations made by parties are binding upon those who enter into them.

Medical Services – Choice of Physician

Claimant allowed to treat in New York, but employer only responsible for cost if obtained in Puerto Rico.  Luis Pena Garcia v. Calzadilla Construction Corporation (BRB 17-0103 (9/13/17) (unpublished).

After receiving an award of PTD claimant requested approval for a multi-level lumbar surgery in New York.  Employer agreed the surgery was reasonable, necessary, and related to the injury but asserted it should be performed in Puerto Rico.  There was no evidence the surgery could not be performed in Puerto Rico and Claimant did not establish treatment in New York, was reasonable and necessary.  After a hearing in Puerto Rico (presumably where claimant had his residence) the ALJ held claimant could have his surgery anywhere he chooses but employer was liable only for the costs associated with obtaining the procedure and rehabilitation in Puerto Rico.  The decision was not appealed.  .

No right to select pharmacy or audiologist.  ALJ lacks jurisdiction.  Choice is subject to district director’s supervision.   Jones v. Huntington Ingalls, Inc. (BRB 16-0690, 10/10/17).

Employer directed claimant to schedule an appointment with Gulf Coast Audiology in Pascagoula, MS for a hearing aid fitting for his work related hearing loss.  Claimant contended he should be able to obtain hearing aids from an audiologist of his choice.  The Board held the ALJ lacked jurisdiction to resolve this dispute.  Disputes over factual matters, such as whether claimant requested authorization for treatment, whether employer refused the request, or whether the physicians’ report was filed in a timely manner are within an ALJ’s authority to resolve.  The issue here does not involve a factual matter.  Claimant has the right to select an attending physician but audiologists, like pharmacists, are not physicians within the meaning of the Act because they are not doctors of medicine, surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, or osteopathic physicians.  The issue of selection of an audiologist concerns the character and sufficiency of a medical services and therefore falls within the district director’s jurisdiction rather than the ALJ.  The Board remanded the claim to address the details of claimant’s audiological care.

Penalties – Propriety

30 days to pay to avoid fees runs from receipt of notice from the OWCP, not receipt of notice from the claimant.   Green v. Bollinger Shipyards, Inc. (BRB 17-0139, 9/8/17) (unpublished).

On October 20, 2015 claimant filed a claim for work related hearing loss.  On November 2, 2015 the district director sent a notice to employer stating a claim had been filed.  Employer did not receive this notice because the district director sent it to the wrong address.  On November 10, 2015 Employer filed a LS-202, noting it had received the claim form from claimant’s attorney.  On November 24, 2015 the district director sent a second notice of claim to the employer.  Employer filed a notice of controversion but on December 18, 2015 began paying disability.  It continued payment through September 19, 2016.  Claimant’s attorney requested a fee.  The District Director awarded $4,012.50 because Employer had notice of the claim on November 2, 2015, controverted the claim on November 24, 2015, and payment on December 18, 2015 was not within 30 days of formal notice of claim.  The Board reversed.  In the 5th Circuit §28(a) requires employer to receive notice of the claim from the district director to commence the 30 day period.  Prior notice of a form LS-203 is immaterial  On remand the district director must make specific findings as to the date when employer first received notice of the claim from the district director and award fees only if employer failed to pay compensation within 30 days of receipt of written notice of the claim from the district director.

Permanent Disability – Scheduled PPD

Claimant did not prove occupational noise as late as 1989 caused noise related loss in 2014.  Reid v. Huntington Ingalls Inc. (BRB 17-0304, 10/6/17) (unpublished).

Claimant worked for employer as s shipfitter in 1988 and 1980.  He last worked in 2001 and had an audiogram on March 27, 2014, revealing 38.1% binaural impairment.  Claimant said he first noticed hearing difficulties ten years ago.  The audiologist testified at least half of the haring loss existed before 1989 and work through that time contributed to the loss but the ALJ as not persuaded because the audiologist admitted she had no objective data to corroborate her opinion.  Also, when claimant applied for a commercial driver’s license renewal on April 12, 2011 he indicated he did not have a history of an ear disorder or loss of hearing and could hear a whispered voice from six feet away in both ears without a hearing aid.  The ALJ concluded claimant failed to prove he had a measurable, ratable hearing impairment when he left work in 1989 and failed to prove noise at the shipyard contributed to the hearing gloss.  The Board affirmed.  The ALJ could reasonably rely on the whisper test and other evidence to find employer produced substantial evidence not rebut the §20(a) presumption and conclude based on all evidence claimant did not have a work related hearing loss.

Employer sponsored non-presumptive audiograms through retirement in 2007 revealed 0% impairment.  Audiogram in 2014 revealed 6.57%.  Claimant entitled to medical services but no PPD.  Watts v. Alabama Power Co. (BRB 17-0319, 10/12/17) (unpublished).

Claimant worked for employer February 1976 through December 2007.  During this employment he had 25 employer sponsored hearing tests that showed no ratable hearing loss.  None of these tests qualified as presumptive evidence of hearing loss but employer offered evidence testing was conducted by properly trained and certified personnel on equipment properly and consistently maintained and calibrated. There were no aberrational or highly inconsistent test results over the many years claimant was tested.

On October 2, 2014 claimant had a hearing test that revealed 6.57 binaural impairment, prompting him to file a claim.  The ALJ concluded claimant was entitled to medical services but not PPD for his hearing loss.  The Board affirmed.  In the absence of credible evidence regarding the extent of loss when covered employment ended the ALJ should evaluate all relevant evidence to determine the extent of work related loss.  The ALJ need not project later audiogram results back to he last date of covered employment if the most reliable evidence of work related loss is a test nearer in time to the claimant’s last date of covered employment.  ALJ properly recognized the prior audiograms may be probative of the extent of impairment at time of retirement.

Responsibility – Last Injurious Exposure Rule

Last employer before knowledge and disability responsible.  Subsequent employer did not aggravate condition.  Bollinger Shipyards, Inc. v. Director, 689 Fed Appx 348 (5th Cir. 2017) (unpublished).

Claimant worked on and off at Bollinger Shipyards for 15 years as a welding supervisor and was exposed to welding fumes, sandblasting dust, industrial cleaning solvents, and other fumes and chemicals.  On March 22, 2010 he was diagnosed with chronic COPD and told not to return to work and to apply for SSD.  Instead, he applied for work for Thoma-Sea Shipbuilders, passed the pre-employment physical, and worked as a welding supervisor from March 29 through May 18, 2010 when he was fired for sleeping on the job.  He then filed claims for his various health problems including his respiratory condition.  He had another pulmonary function test which was essentially the same as a test in March 2010.  On remand, after an earlier appeal, the ALJ concluded the date of diagnosis and disability was March 22, 2010 and Bollinger was solely liable because it was the last employer to expose claimant to injurious stimuli prior to the date he became aware he was suffering from an occupational disease arising from employment.  The Board affirmed.  Disability and knowledge coincided on March 22, 2010.  The ALJ concluded Thoma-Sea did not contribute to the disability and relied on evidence the work at Thoma-Sea did not aggravate the pulmonary condition.


8(i) agreement stipulating to LHWCA coverage did not preclude Jones Act suit. Gibson v. American Construction Company, 200 Wn App 600 (2017).

Gibson worked for American Construction Company as a mechanic in its marine construction department.  In 2013 he fell through a hatch while working on a crane barge moored at American’s dock.  He filed a claim under the LHWCA, received compensation, and in December 2015 settled the claim per §8(i).  The agreement stated he suffered a work related injury and was subject to the LHWCA.  In March 2016 he filed a Jones Act complaint against American for negligence, unseaworthiness, and vessel owner negligence for the 2013 injury.  American moved to dismiss, arguing the §8(i) agreement precluded Gibson from bringing a Jones Act claim.  Gibson argued the agreement did not resolve his maritime worker status because his status was never adjudicated in a formal hearing under the LHWCA.  The superior court dismissed the Jones Act claims with prejudice.  The Court of Appeals reversed because Gibson’s maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve the issue under the LHWCA.  Election of remedies, equitable estoppel, and collateral estoppel did not apply.

The Court relied on a passage from SW Marine Inc. v. Gizoni, 502 US 81, 91 (1991):

It is by now “universally accepted” that an employee who receives voluntary payments under the LHWCA without a formal award is not barred from subsequently seeking relief under the Jones Act.  This is so, quite obviously, because the question of coverage has never actually been litigated.  Moreover, the LHWCA clearly does not comprehend such a preclusive effect, as it specifically provides that any amounts paid to an employee for the same injury, disability or death pursuant to the Jones Act shall be credited against any liability imposed by the LHWCA.

Also, there was no specific finding or ruling on jurisdiction under the LHWCA in a compensation order.  “The compensation order approving the parties agreed settlement is an informal order, not a formal award.”  Gibson did not have a litigated decision as to his maritime worker status, non-seaman or seaman status, under the LHWCA, as Gizoni contemplated.

Collateral estoppel did not apply because there was no formal adjudication or administrative proceeding to determine the nature and duration of the worker status.  The compensation order did not contain any specific finding of fact or conclusion of law that Gibson was a non-seaman under the LHWCA.

Effort to set aside §8(i) agreement due to mental incompetence fails.  Panek v. Vigor Shipyard, Inc. (BRB 17-0030, 10/30/17) (unpublished).

On December 15, 1995 ALJ Lasky approved a 31 page §8(i) agreement, signed by claimant, claimant’s attorney, claimant’s former attorney, and employer’s attorney, providing for lump sum payment of $35,000 in addition to $14,668 already paid.  The order stated the settlement was neither inadequate nor procured by duress.  On January 29, 2016 claimant, represented by new counsel, filed a petition to set aside the settlement because claimant was mentally incompetent at the time of the settlement agreement.  In support of the petition he noted the settlement agreement referenced evaluations by two neuropsychologists who had diagnosed cognitive deficits.  His now treating physician, Dr. Rice, said claimant’s 1991 injury left him with profound cognitive and psychological sequelae which rendered him incapable of understanding the settlement agreement and he was not competent to sign it in December 1994.  The ALJ dismissed the claim for lack of jurisdiction.  The Board affirmed.  Equity would not be served by reopening the agreement.  The ALJ adequately considered delay, finality, approval safeguards of §8(i), claimant’s representation by counsel when he entered the settlement, and the limitations of new and incomplete contemporaneous medical evidence.  Claimant did not demonstrate the ALJ abused his discretion in addressing relevant equitable considerations.

District director required to issue an order based on stipulations, assuming stipulation are not contrary to law.  Van Boening v. Blackwater Security Consulting LLC, 2017 DOLBRB LEXIS 251 (BRB 16-0681, 8/8/17) (unpublished).

Claimant sustained orthopedic and psychiatric injuries working as a personal security specialist in Iraq.  The parties sent the district director a §8(i) agreement to settle the orthopedic injuries and a “Joint Stimulation and Request for Order” regarding the psychiatric claim.  The parties stipulated to TTD from December 29, 2007 to May 12, 2011 at the maximum compensation rate of $1,160.36, PPD from May 13, 2011 to June 1, 2015 at $1,160.36, and PPD from June 2, 2015 and continuing at $1,060.36.  The district director awarded PPD continuing from July 9, 2011 at $1,060.36.  The director conceded the order was not consistent with the stipulation but asserted some stipulations were not supported by the evidence and therefore the district director was not authorized to issue a compensation order.  The Board held it is a dispute between the parties that triggers the need for a hearing.  Whether evidence could support the fact of the stipulation if the claim were adjudicated is not relevant to the district director’s acceptance of the stipulation . Stipulations of fact are offered in lieu of evidence and the fact need not be established by record evidence.  As the stipulations were not contrary to law the district director was required to issue a compensation order embodying the parties’ agreement.

Temporary Disability – Entitlement

Refusal to attend IME not unreasonable when notice not sent to counsel, notice was unnecessarily close in time to exam, notice contained less than complete information, and claimant followed advice of counsel.  ALJ viewed employer’s policy of charging claimant’s counsel $25 for a copy of the file as petty and short sighted.  MacDonald v. Temco, LLC, 2017 DOLBRB LEXIS 241 (BRB 16-0641, 16-0641A (8/3/17) (unpublished).

On September 5, 2013 employer notified claimant of a medical examination it scheduled for September 14, 2013.  Claimant did not attend on advice of his attorney.  Employer suspended compensation and medical benefits. The ALJ concluded employer failed to prove claimant’s refusal to attend the examination was unreasonable and awarded TTD.  Employer did not send counsel a copy of the notice even though it knew claimant was represented by counsel.  The notice was unnecessarily close in time to the examination and contained less than complete information.  The carrier’s policy that claimant’s counsel must pay a $25 fee for a copy of its file was “petty and short-sighted.”  The Board affirmed.  The ALJ properly considered claimant was heeding the advice of his counsel.  The ALJ acted within his discretion to conclude from the record employer did not establish claimant’s conduct was unreasonable.