August 12, 2016
by Norman Cole

LHWCA Quarterly Caselaw Summary

Cole, Norm -Reg ColorThe Board and courts seem to have taken time off for vacation during the last several months.  The volume of new LHWCA cases is relatively low for this quarter.

In SSA Terminals & Homeport Insurance Co. v. Carrion and Director OWCP, 2016 WL 2731593 (9th Cir., 13-72929, 5/11/16), the court agreed a cumulative trauma claim filed in 2008 based on employment ending in 2002 was timely because claimant had no knowledge his employment contributed to his disability until receipt of an IME report discussing cumulative trauma.  Claimant injured his knee in 1987 when working for Matson.  When he returned to work SSA became his employer, and his knee continued to hurt.  He retired in 2002.  Matson stopped paying for claimant’s knee treatment in 2006.  It also scheduled an IME with Dr. Stark, who discussed the concept of cumulative trauma (presumably because Matson hoped to shift responsibility to SSA, the last employer).  In 2008, after receiving this report, claimant filed a cumulative trauma claim against Matson and SSA.  The claim was timely (within one year of knowledge) cause claimant did not know the full character, extent, and impact of the harm done to him by continued employment until he received Dr. Stark’s report.  His ongoing treatment and pain alone was insufficient to establish knowledge of cumulative trauma.

In the same decision claimant had been told he eventually would need total knee replacement surgery, but surgery had not never been scheduled.  The ALJ concluded claimant’s disability was temporary.  The Court disagreed.  A disability becomes permanent if claimant reaches maximum medical improvement by either healing to the full extent possible or when the disability has continued for a lengthy period and appeared to be of lasting or indefinite duration.  In this claim, claimant might not have surgery because he could develop other medical conditions that would make surgery too risky, there might be advances in medicine that eliminated the need or surgery, or he might die before surgery is scheduled.  Therefore, claimant’s disability was permanent.  If, at a later date he needed surgery, his award could be modified due to a change of condition.

  • 6(a) states no compensation is allowed for the first three days of disability if the injury results in disability for more than 14 days.  In an unpublished decision, Butler v. Huntington Ingalls, Inc., 2016 WL 1403225 (BRB 15-0458, 2016) (unpublished), the Board held the fourteen day period could be based on the entire period of disability in which disability was claimed, including intermittent loss of work (e.g., a few hours per day).  The Board seemed to hold if TPD and TTD after the first three days was the equivalent of 11 days of TTD claimant also should receive payment for the first three days of total disability.
  • 33(g)(1) states, in relevant part: “If the person entitled to compensation * * *  enters into a settlement with a third person * * * for an amount less than the compensation to which the person * * * would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation * * *.”  This has been understood a creating a waiver of compensation if the statute is violated.  In Pittman v. New Century Fabricators, Inc., 2016 WL 3575796 (BRB 15-0470, 2016), the Board held: (1) The waiver does not apply unless the gross settlement is more than the compensation to which claimant could receive; (2) For purposes of the waiver, medical expense is not considered; (3) The employer is entitled to an offset for the net amount of the settlement; (4) When all proceeds are offset, employer must resume compensation.  Based on this decision, there is no waiver if the gross settlement is more than the compensation to which the claimant could receive.  There is only a credit that lasts as long as net proceeds cover the cost of disability.

I will be speaking on recent caselaw at the DOL West Coast Symposium on Friday, September 16, 2016, at the San Francisco Federal building, 90 7th Street, Joint Auditorium B-040 – B-020.  I hope to see you there.

As always, please contact me if you have any questions about the cases or other LHWCA topics.