LHWCA Quarterly Caselaw Update

Cole, Norm -Reg ColorThe most significant decision in this cycle probably is Moody v. Huntington Ingalls, Inc.. Claimant informed the employer he intended to retire as of November 1, 2011. He injured his shoulder before he retired but continued to work. He first sought treatment for the shoulder the day after he retired, had surgery approximately five weeks later, and sought TTD from the date of surgery until he was released to return to modified work. The Board held he was not entitled to TTD because his disability was not because of the work injury. His retirement had already resulted in his complete loss of earning capacity at the time of the shoulder surgery.

In Ceres Marine Terminals, Inc. v. Director, the 4th Circuit rejected an effort to limit entitlement to compensation for a psychological injury to workers who were in the “zone of danger” of a physical impact of an injury. The Court held the LHWCA did not distinguish between psychological and physical injuries, and there was no requirement a psychological injury be accompanied by actual or threatened physical harm.

In Bis Salamis, Inc. v. Director, OWCP, the 5th Circuit held an ALJ could evaluate the worker’s credibility when deciding if there was evidence of an injury at work. Yet, in an unpublished decision, Caniely v. Ceres Marine Terminals, Inc., the ALJ concluded the employer did not rebut the presumption because its experts were entitled to decreased probative weight. The Board remanded because the ALJ improperly weighted the credibility of the witnesses and the contrary evidence when deciding if employer produced substantial evidence to support a conclusion the injury was not work related.

In Ritzheimer v. Triple Canopy, Inc., a Defense Base Act worker who slipped in the shower after a day of work was within the “zone of special danger” when injured. The employer provided the apartment. Claimant worked in a dirty, dusty environment, was on call 24 hours per day, and was contractually required to maintain a professional appearance. At a longshore conference I attended in New Orleans last month some of the participants seemed surprised the DBA would reach that far. Yet, based on the “traveling employee” and “bunkhouse” rules discussed in generic workers’ compensation treatises, the decision does not, at least to me, seem unexpected or inconsistent with law.

In an unpublished decision, Popovich v. Jones Stevedoring Co., employer argued a walking boss job would have been available to claimant if he had requested a reasonable accommodation under the ADA. The Board rejected this argument, holding it was not the role of the ALJ to determine claimant’s entitlement to an ADA accommodation. The potential for accommodation under the ADA did not establish the reality of accommodations being made.

I will be speaking on caselaw next month in Seattle at the a longshore conference sponsored by Signal Mutual Indemnity Association, Ltd.. and its co-sponsors. I hope to see you there.