December 16, 2016
by Norman Cole

LHWCA Quarterly Case Law Summary

Cole, Norm -Reg ColorAttorney Fees – Entitlement

Board allows fees for defending a fee petition.  Baker Botts not binding on fee shifting statutes.  Clisso v. Elro Coal Company, 2016 WL 3575792 (BRB 15-0010 BLA, 2016).

Employer objected to payment of $300 for one hour of attorney services for defense of the fee petition.  The Board held the Supreme Court’s decision in Baker Botts LLP v. ASARCO LLC, 135 S.Ct. 2158 (2015) was not applicable because §28(a) is a fee shifting statute and therefore is an exception to the American Rule that litigants pay their own attorney’s fees.  The Board cited United States District Court decisions refusing to apply Baker Botts in a Fair Debt Collection Practices Act, Equal Access to Justice, and Civil Rights claim because the Supreme Court’s decision was limited to bankruptcy claims.  The fee for which employer is liable may include a reasonable fee for the defense of counsel’s fee petition.

Causation – §20 Presumption

Insufficient evidence to invoke presumption when evidence indicated worker could have been exposed to asbestos on the Queen Mary but there was no evidence he was exposed.  Curran v. Thorpe Insulation Co., 2016 WL  _____ (BRB 16-0099, 2016) (unpublished).

Claimant sought compensation for death of her husband due to an asbestos related disease from three employers.  Pursuant to Albina Engine & Machine v. Director, OWCP, 627 F.3d 1293 (9th Cir. 2010), the ALJ examined the evidence in reverse chronological order.  Claimant failed to produce evidence claimant had asbestos exposure on a covered situs when working for the most recent employer, Thermal Services.  Decedent testified he worked on the Queen Mary when employed by Owens Corning, the next to last employer, but he did not make any statements about being exposes to asbestos while on that ship.  Claimant (surviving spouse) had no information about decedent’s work on the Queen Mary.  Mr. Ay, a former insulator, testified he worked on the Queen Mary in 1969, knew there were abatement projects in the 1960’s or 1970’s, and was confident there was still asbestos on the ship.  The ALJ concluded no evidence established working conditions that could have exposed decedent to asbestos on that ship.  As decedent’s uncontradicted deposition testimony established exposure at Todd and Bethlehem shipyards when working for Thorpe, the last employer, it was found responsible.  On appeal, Thorpe argued the §20(a) presumption had been invoked as to Owens Corning, Owens Corning had not rebutted the presumption, and therefore Owens Corning was responsible  The Board affirmed.

There was evidence of harm (decedent’s asbestos related death) but testimony did not establish how much asbestos was present during decedent’s employment, where it was located, or whether decedent worked in proximity to it.  He might have been exposed to asbestos but here was no evidence he actually was exposed.  The ALJ acted within his discretion to find the evidence insufficient to invoke the §20(a) presumption.

Claim – Date of Awareness

Claim untimely when claimant believed work exposure caused a temporary inability to work and he failed to file a claim within one year.  Suarez v. Service Employees International, Inc., 2016 WL 4582487 (BRB 15-0534, 15-0534A, 2016)

In January 2005 claimant began work for employer in Iraq as a truck driver.  In 2007, 2009, 2010, and 2011 he had gastrointestinal complaints, saw physicians several times, and was unable to work intermittently.  In December 2009 claimant told his doctor he thought the water he drank at work was responsible for his GI problems because his family, who did not drink the same water, was not sick.  Dr. Berry precluded him from returning to work until his condition cleared up.  On January 14, 2010 employer filed a LS-202.  On August 27, 2010 employer terminated claimant’s employment for breach of safety standards, and in that same month claimant learned he had IBS (irritable bowel syndrome).  He returned to the United States, found work for a trucking company, but continued to have stomach upset which caused delays in delivering his cargo.  On April 17, 2011 he filled out a LS-203 seeking benefits for work related bacteria stomach infection.  The ALJ found his condition compensable but untimely.  The Board affirmed.

Per §13(a), a claim for injury must be filed within one year after the injury but the time does not begin to run until the employee is aware or by exercise of reasonable diligence should have been aware of the relationship between the injury and death.  A claimant is not “aware” until he knows the likely impairment to his wage earning capacity due to his work injury.  The ALJ concluded the date of awareness was December 2009, the statute was tolled until January 14, 2010 when employer filed a LS-202, and the claim in April 2011 therefore was not filed within one year of January 14, 2010.  Claimant knew the “full character” of his injuries before IBS was diagnosed.  “Claimant’s awareness of a temporary loss of his ability to work due to a work related injury in a claim for a specific period of temporary disability benefits, is sufficient to commence the running of the statute of limitations.”

Claimant argued his claim should be analyzed as an occupational disease subject to §13(b)(2) which states a claim due to an occupational disease which does not immediately result in disability must be filed within two years after the employee becomes aware or in the exercise of reasonable diligence or by reason of medical advise should have been aware of the relationship between the employment and the disease or disability.  The ALJ and Board agreed claimant sustained an injury not an occupational disease because the GI episodes occurred suddenly and were immediately disabling and did not develop gradually like asbestosis.  Claimant sustained an injury each time he was infected.

Concurrent PPD – PPD/PTD/TD

Claimant not entitled to scheduled PPD when also entitled to total disability for unscheduled injury with same date of injury.  Fenske v. Service Employees International, Inc., 835 F.3d 978 (9th Cir. 2016).

          Claimant was awarded TTD from October 9, 2005 through July 27, 2005 and PTD thereafter for a low back injury on October 9, 2005.  He had an audiogram on June 4, 2009 that demonstrated a work related hearing loss.  Claimant sought payment of scheduled PPD for hearing loss in addition to total disability for his back injury.  His request was denied.

In Price v. SSA, 382 F3d 878 (9th Cir. 2004) claimant had successive injuries and received concurrent awards for each because the average weekly age for the second injury took into consideration the loss caused by the fist injury.  The Court refused to apply this concept because claimant’s hearing loss injury occurred on the same day as his traumatic injury and concurrent payment would constitute double dipping, i.e. compensation for a loss of earning capacity that was accounted for in another award.  Claimant also argued he should receive concurrent scheduled PPD to the extent two-thirds of his average weekly wage exceeded the maximum compensation rate.  The Court rejected this contention without much discussion.

Hearings – Reconsideration and Other Motions

Concurrent Disability – PPD/TD/TD

ALJ must give parties notice before ruling on matters not raised in pleadings.  Scheduled PPD payable until claimant became totally disabled.  Maglione v. APM Terminals, 2016 WL 4582488 (BRB 16-0053, 2016).

Claimant previously filed a claim for total disability against multiple employers for orthopedic injuries sustained in work accidents on June 20, 1998 and April 16, 2000.  Between April 2000 and March 9, 2001 he worked five more days as a longshoreman.  His last employer was APM.  He officially retired in 2003 and in 2005 settled his 1998 and 2000 claims (with CSC, Jones, SSA, and APM) per §8(i) for $200,000.  On April 15, 2014 claimant had an audiogram.  He filed a new claim with APM, his last employer, for 12% binaural hearing loss based on an average weekly wage of $1,490.35.  Employer paid medical expenses plus 9.69% binaural impairment (refusing to pay impairment for tinnitus) based on an average weekly age of $272.71.  Claimant was dissatisfied and sought a formal hearing.  Employer filed a motion for summary decision on the ground claimant had received all of the PPD owed.  The ALJ granted the motion but did so because claimant’s average weekly wage on March 9, 2001 was zero, so he suffered no loss of earning capacity due to hearing loss.  (See, D&O Granting Employer’s Motion for Summary Decision, 2015-LHC-00485, 9/17/15).  The ALJ implied claimant was already totally disabled on the last day of work.  The Board reversed and remanded because the ALJ should not have granted the motion for reasons independent of the motion without first giving the parties notice and an opportunity to respond to this particular position.  Neither party had argued claimant’s average weekly age was zero.

On remand the ALJ also should determine if and when claimant was totally disabled.  If claimant sustained two injuries, one totally disabling and the other resulting in a scheduled award, claimant could receive the scheduled benefits only if his scheduled injury occurred prior to the onset of total disability.  Under such circumstances, he could only recover scheduled benefits accruing between the onset of partial disability and the onset of total disability.

Situs – Adjoining Area

Status – Load/Unload/Repair/Break

Railroad Intermodal Facility located several miles from port, where containers were loaded on rail cars had no functional nexus to maritime commerce.   Truck driver delivering containers to this facility lacked status.  No functional nexus to maritime commerce.   Ahmed v. Western Ports Transportation, Inc., 2016 WL 5673250 (BRB 16-0067, 2016).

Employer operated a trucking company that contracts with independent truck owner/operators to transport containers between rail yards, retail outlets, warehouses, and piers.  Claimant primarily worked in the rail group, which moved containers between the port terminals and the rail yards located 3-5 miles away.  He injured his elbow at the Union Pacific Intermodal Facility.  The ALJ concluded he was an independent contractor, was not injured on a covered situs, and did not have status.

Claimant was not injured on a covered situs because the Union Pacific Intermodal Facility was not an adjoining area. It did not function as an area of maritime commerce, was located several miles from the Port of Seattle, and was not customarily used in loading or unloading of any vessels.  Once containers left the port for inland destinations maritime activity ceased.  At that point the functional nexus was with landward transportation of cargo and not with loading or unloading of vessels.

Claimant lacked status because his work was more like that of a truck driver in McKenzie v. Crowley America Transport, Inc., 36 BRBS 41 (2002), who transported cargo between port terminals and facilities, including a railyard located outside the port, and was involved in the land based stream of commerce and not an intermediate step in the loading process.  Containers were not simply at a “point of rest” but were ready to enter overland transportation.  His responsibility on the waterfront was essentially to pick up or deliver cargo unloaded from or destined for maritime transportation.

Situs – Navigable Waters

Inspector injured on navigable waters had status per Perini.  Employer necessarily was statutory employer.  Flores v. MMR Constructors, Inc., 2016 WL 6518831 (BRB 16-0133, 2016).

          Director, OWCP v. Perini North River Associates, 459 US 297 (1983), held when a worker is injured on navigable waters in the course of employment he satisfies the status requirement in §2(3) and is covered if he is an employee of a statutory employer and is not excluded by any other provision of the Act.  Claimant was inured when inspecting electrical systems on the hull of what was to become Chevron’s tension leg platform Big Foot when it was floating at the dock of the Kiewit yard on Corpus Christi Bay.  The ALJ concluded claimant as on navigable waters and his presence was not transient or fortuitous, but he nevertheless denied coverage because claimant was not an employee of a statutory employer and he lacked status because he was not a shipbuilder or engaged in maritime employment.   The Board reversed.

Coverage per Perini does not depend on whether the injury was on a vessel but whether he was afloat upon, over, or in navigable waters.  If claimant was injured on navigable waters and would have been covered before the 1972 amendments it is unnecessary to examine if he was involved in traditional maritime activity when on navigable waters.  If claimant had coverage his employer necessarily was a statutory employer.

Status – Integral Employment

Work repairing roof of building used to store tools used to repair equipment used to unload logs sufficient for status.  Low standard for substantial evidence.  Knutson Towboat Co. v. Wakeley, 2016 WL 5335499 (9th Cir. 14070990, 2016) (unpublished).

Employer used log broncs to push logs to the shore of a slough where LeTourneaus removed the logs from the water and placed them near the shoreline for eventual transport to mills.  The ALJ concluded Employer stored tools used to repair log broncs and LeTourneus in a building located close to the area where logs were unloaded.  Claimant was injured when repairing the roof of the building but he sometimes did other work on the building such as remodeling a tool or parts room.  Employer argued log broncs and LeTourneaus were repaired in the field or at other locations, no tools in the building were used to repair this equipment, and equipment would have been repaired whether or not claimant did any work on the building.  The panel thought status was established by the presence of tools in the building and the ALJ’s finding these tools were used to repair the equipment.  Judge Burns, concurring, observed the ALJ concluded tools “may” have been stored in the building but thought under the substantial evidence standard practically any evidence of the existence of a fact suffices.

Status – Load/Unload/Repair/Break

Worker who constructed living quarters for use on future offshore oil platform not engaged in ship construction and not subject to OCSLA.   Baker v. Director, OWCP, 834 F.3d 542 (5th Cir. 2016).

Claimant injured his neck and back working on a land based facility (a covered situs) fabricating topside living quarters to be incorporated onto the tension leg oil platform, Big Foot.  Components were transported to Ingleside, Texas for assembly.  Once assembled, it was towed to a location 200 miles off the coast and anchored to the sea floor.  It was not built to regularly transport goods or people.  The ALJ concluded Big Foot was not a vessel, and claimant lacked status or coverage under the LHWCA and OCSLA.  The Board affirmed.

In Stewart v. Dutra Construction Co., 543 US 481 (2005), the court held the factual question relevant to the definition of a vessel was whether the watercraft’s use as a means of transportation on water was a practical possibility or merely a theoretical one.  In Lozman v. City of Riviera Beach, Florida, 133 S.Ct. 735 (2013), the Court held a vessel must supply transportation.  Transportation involved the conveyance of things or persons from one place to another.  Where the capacity to transport over water is in doubt, the issue is whether a reasonable observer, looking to the craft’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.  In light of Stewart and Lozman the Board concluded Big Foot was not “practically capable” of transporting people or cargo based on the purpose it was created and its physical characteristics.  It is not a vessel even though it will be towed to its final offshore location where it will be anchored in place with cable.  It is not capable of propulsion.  It was not built for navigation. Because it is not a vessel, claimant was not engaged in ship construction.  The Court agreed.

Additionally, citing Pac. Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680, 685 (2012) (quoting Valladolid v. Pac. Operations Offshore, LLP, 604 F.3d 1126, 1139 (9th Cir. 2010), the Court agreed claimant’s injury was not a result of operations conducted “as a result of” operations on the outer continental shelf because his work did not have a substantial nexus to the OCS operations.  Living quarters were not unique to OCS operations. There was no completed or operating rig, and the employer would have no role in the installation or operation of the rig on the OCS.

Third Party – Other

Plaintiff’s recovery for medical expenses limited to amount paid by the LHWCA carrier rather than the amount billed.   Deperrodil v. Bozovic Marine, Inc., 2016 WL 6810728 (16-30009, 5th Cir. 2017).

Clamant was injured when on a vessel owned and operated by Bozovic Marine.  The LHWCA carrier was billed $186,080.30 for medical expenses but paid $57,385.50.  Neither Plaintiff nor the insurer were liable for the $128,694.80 write-off.  After a bench trial the court awarded damages that included the full amount billed for medical expenses.  As Bozovic Marine (the defendant) played no role in securing LHWCA insurance coverage, the collateral source rule applied, and Bozovic was liable for the medical expenses the insurer paid on the plaintiff’s behalf.  Just as a seaman is entitled to [maintenance and] cure and can recover only for those expenses actually incurred, the LHWCA medical expense payments are collateral to a third party tortfeasor only to the extent paid.  Plaintiff may not recover for expenses billed but not paid.

Ship that completed sea trials but not fully inspected before final delivery was not a vessel for purposes of a §905(b) action.   Crace v.  Huntington Ingalls, Inc., 2016 WL 6110040 (5th Cir. 16-30205, 2016).

          Huntington Ingalls had a contract to build a ship for the Navy.  Plaintiff worked for s subcontractor responsible for inspecting the ship before it was commissioned and delivered the Navy.  He was injured when he fell from a ladder when inspecting a lower compartment of a ship.  He filed a §905(b) suit alleging Huntington Ingalls defectively designed, constructed, and installed the ladder.  The district could held it lacked jurisdiction over the federal maritime claims because the ship was not a completed vessel at time of injury, government contractor immunity shielded Huntington Ingalls from liability, and there was no evidence of negligence.  The Court held even though the ship had successfully completed sea trials it was still being outfitted and inspected prior to final delivery and therefore remained a non-vessel under maritime law.

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