November 11, 2013
by Norman Cole

LHWCA Quarterly Update

norman coleSchwirse v. Director, OWCP, __ F.3d ___, 2013 WL 3840332 (9th Cir 2013).  Longshoreman drank alcohol when at work and fell on concrete and a metal slab.  Claimant argued the injury was not solely due to intoxication because the result of the fall was worse because of the hard surface on which he fell.  The Court disagreed.  By using the term “injury” Congress intended to incorporate the harmful physical consequences of the event.  Absence evidence the surface material was unforeseeably defective, the legal cause was limited to the reason for the fall and the foreseeable consequences of that fall.

McGarey v. Electric Boat Corporation, 2013 WL 476117 (BRB 12-0672, 13-0020, 2013).  Claimant had an employer sponsored audiogram and filed a claim for hearing loss at a later date.  After receiving the claim, employer promptly paid compensation,  but claimant sought a 10% penalty because compensation had not been controverted or paid within 28 days of the audiogram.  The Board held the duty to pay or file a controversion arises upon receipt of notice of knowledge of the injury on which the claim is based, as opposed to knowledge of a specific claim for benefits.  An employer possess the requisite knowledge for purposes of §14(e) if a reasonable person, aware of the injury or such facts, would conclude compensation liability is possible and further investigation should be made.  The Board remanded the claim to determine if the employer had the requisite knowledge when it administered the audiogram.  For those employers required to administer surveillance audiograms per OSHA, this opinion increases the risk every surveillance audiogram can produce a 10% penalty unless the employer promptly files a LS-207.  

Petitt v. Sause Brothers, 2013 WL 5289154, __ P3d ___ (9th Cir. 2013).  Claimant received minimum wage when he began employment for a post injury employer, but his employer increased the rate of pay $0.25 per hour per quarter as long as he had good performance, to a maximum of $13.50 per hour.  The ALJ and Board concluded the raises meant claimant’s earning capacity improved.  The Court of Appeals reversed.  Scheduled wage increases given by non union employer to all employees in a certain class based solely on seniority are a general increase in wages and do not increase claimant’s wage earning capacity.  Here, claimant seniority was not accompanied by an increase in productivity, skills, or responsibility that would make him more valuable on the market if he left his employer.  Based on this decision, workers who begin work on a minimum wage job are more likely to have their PPD based on minimum wage rather than the increased wages they are likely to receive with more time on the job. 

If you have any questions about any of these decisions, please contact me at: or 503.595.2131.