July 7, 2015
by Norman Cole

LHWCA Caselaw Update

norman coleOver the last three months there have been several noteworthy decisions under the Longshore and Harbors Workers’ Compensation Act.

In M.K. v. California United Terminals, 2009 WL 525237 (BRB 08-0392, 08-0450, 08-0606, 2009), the Board held the ILWU-PMA’s §17 lien claims and all claims for reimbursement of medical expenses under §7 must be resolved simultaneously with settlement agreements entered into by the claimants and their employers.  Following M.K., attorneys for the ILWU-PMA Welfare Plan have intervened with greater frequency, seeking reimbursement of indemnity and medical services and payment of attorney fees.

In Hunt v. Director, OWCP, 999 F.2d 4129 (9th Cir. 1993), the 9th Circuit held a medical services provider was a “person seeking benefits” and, therefore, was entitled to attorney fees under §28(a) when it intervened.  Grierson v. Marine Terminals Corporation holds the Plan, as an in insurer, is a “person seeking benefits” and is entitled to attorney fees for pursuing reimbursement of medical expense.  The Plan is not, however, entitled to fees for seeking reimbursement of indemnity.  Indemnity is based on §17, which does not allow reimbursement on behalf of the claimant.  Therefore, no fees are due for seeking reimbursement for indemnity.

In Grierson, on December 5, 2011, the employer stipulated the Plan was entitled to reimbursement for its medical benefits if the claim was compensable.  Employer argued if fees were owed, none were due for services after December 5, 2011.  The Board remanded with instructions to determine if the Plan’s services after December 5, 2011 were necessary.  The Plan probably will argue its continued participation was necessary because it helped claimant prove the claim was compensable.  Until this is decided, employers who want to avoid or mitigate fees owed to the Plan should consider stipulating the Plan is entitled to reimbursement if the claim is compensable.

Stovall v. Total Terminals International, LLC held each employers and insurer in a multi-party claim can settle its claim per §8(i) without the approval of the other parties.  The money the claimant receives from these settlements will not be available as a credit by the responsible employer/insurer.

In Newton-Sealey v. Armorgroup Services, Ltd., the Board held the exclusive remedy did not insulate the employer from a suit filed in a United Kingdom court, and settlements from this suit did not qualify for a credit because payment was not received from a third party, was not payment to the claimant for the same injury per §3(e), and was not an advance payment of compensation per §14(f).  (If suit has been filed in a United States court, the result might have been different.)  Notwithstanding Newton-Sealey, the D.C. Circuit held, in Brink v. Continental Insurance Company, plaintiffs could not pursue a RICO claim against the employers and insurers because the DBA and LHWCA was the exclusive remedy against the employer if the claim was compensable.  Plaintiffs could, however, pursue an ADA claim because this did not depend on whether plaintiffs were covered under the DBA or LHWCA.

Babick v. Todd Pacific Shipyards Corporation overruled prior caselaw to define the shifting burdens in a discrimination claim.  Its operation is similar to the §20(a) presumption.  Claimant must produce enough evidence to permit the trier to infer the employer committed a discriminatory act motivated by discriminatory animus or intent.  Once done, the burden shifts to the employer to produce substantial evidence it acted for non discriminatory reasons.  If it produces this evidence, the presumption falls from the case, and the claimant must prove by a preponderance of the evidence the employer committed a discriminatory act motivated by his claim for  compensation.  (Note:  The LHWCA does not allow an employer to obtain insurance coverage for discrimination.  If discrimination is alleged, the employer is solely responsible for defending the claim.)

In Modar v. Maritime Services, Corporation, the Board, in an unpublished decision, followed prior caselaw and held attorneys are not entitled to interest on costs.  Claimant’s attorney,  Charles Robinowitz, appealed this decision to the 9th Circuit.

In Herb’s Welding v. Gray 105 S. Ct. 1421 (1985), the Supreme Court held offshore drilling was not maritime activity, and no task essential thereto constitutes maritime employment.  Therefore, a welder who worked on the platform lacked status.  In Thibodeaux v. Grasso Production Management, Inc., 370 F.3d 486 (5th Cir. 2004), the 5th Circuit held a fixed oil platform was not a covered situs because it did not serve a maritime purpose.  Notwithstanding these decisions, in Malta v. Wood Group Production Services, the Board held a fixed platform in Louisiana state territorial waters was a covered situs because ships routinely unloaded equipment and supplies needed for oil and gas production to the platform, where they were stored until loaded onto other vessels who delivered them to satellite platforms.   Loading and unloading vessels was a large part of claimant’s job.  The nature of the cargo that was loaded and unloaded was not determinative of the situs inquiry.

In Huntington Ingalls Industries, Inc. v. Eason, the 4th Circuit held a worker receiving a scheduled PPD award was not entitled to TPD when the injury temporarily prevented the worker from performing usual and customary employment but suitable alternative employment for 32 hours per week at minimum wage was available.  A scheduled PPD award compensates the worker for some loss of earning capacity.  Unless the worker is totally disabled (TTD or PTD), the worker is not entitled to reinstatement of temporary disability in lieu of PPD when the injury prevents the worker from performing usual and customary employment.

Finally, in Merritt v. Huntington Ingalls, Inc., an unpublished decision, the Board held the employer was barred from receiving §8(f) relief when it failed to file a §8(f) application before the claim was transferred to the OALJ when permanency had been listed as an issue in the notice of informal conference.  The District Director did not set a deadline for submission of the application, but that was no excuse.  This decision suggests employers and insurers who seek §8(f) relief should ask the District Director to set a deadline for submission of the application and, if no deadline is set, should submit an application at or before the informal conference, but certainly not later than the date the claim is transferred to the OALJ.

If you have an questions about any of the cases in the summary or want to receive the quarterly caselaw summaries via e-mail distribution, please contact me at any time at