Longshore and Harbor Workers’ Compensation Act Case Law Update

norman coleThe last several months yielded several interesting decisions.

In Raiford v. Huntington Ingalls Industries, Inc., the Board held a reaction to a legitimate personnel action was not compensable and was insufficient, for purposes of §20(a), to demonstrate an accident or working conditions that could cause harm. To hold otherwise would unfairly hinder the employer in making legitimate personnel decisions in conducting its business.

In California, workers who are not entitled to disability under a state or federal workers’ compensation law are entitled to short term disability, payable through the Employment Development Department (EDD) and funded in part through employee payroll deductions. In Cutietta v. National Steel & Shipbuilding Company the Board held an employer obligated to pay compensation under the LHWCA was not entitled to a credit for its prior payment of EDD. §3(e) allows a credit for amounts paid for the same injury, disability, or death pursuant to any other workers’ compensation law. The EDD payments were not pursuant to a workers’ compensation law. The claimant was allowed to double-dip.

The First Circuit and the BRB issued decisions regarding the zone of special danger, a concept incorporated by caselaw into the Defense Base Act that allows compensation for some injuries that otherwise are not in the course and scope of employment. In Battelle Memorial Institute v. DiCecca, the First Circuit allowed compensation to a surviving spouse of a worker in Tbilisi, Georgia, killed in a motor vehicle accident when traveling by taxi to a grocery store. The court held the zone of special danger included injuries that fall within foreseeable risks occasioned by or associated with employment abroad. “Special” was best understood as “particular” but not necessarily “enhanced.” In Jetnil v. Chugach Management Services, the Board held the zone of danger did not automatically exclude coverage for local nationals injured during off duty hours performing usual off duty activities. Coverage depended on the specific circumstances presented in each case.

To secure coverage under the Jones Act, the seaman’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the seaman must have a connection to a vessel in navigation or to an identifiable group of such vessels that is substantial in terms of its duration and nature. In Wilcox v. Wild Well Control, Inc., the claimant worked for a relatively brief period on a well in the Gulf of Mexico but lived on a barge that was on site to provide support for the work. The job would have ended in two months if claimant had not been injured. Before this job, he worked for another employer in numerous locations, including a fabrication yard, rigs, barges, and vessels but spent less than 30% of his time in service of any one vessel or group of vessels. Claimant worked as a borrowed employee for the at-injury employer and contended his status as a Jones Act seaman should be evaluated solely on the basis of his most recent employment. The Court held defendants were entitled to summary judgment on the Jones Act claim because claimant was not permanently assigned to work on the new vessel. There was no fundamental change in status that would allow the court to assess the substantial relation prong with sole reference to his time as a borrowed employee.

In Montoya v. Navy Exchange Service Command, 2015 WL4873143 (BRB 14-0379, 14-0379A, 2015), the Board held when an injury occurs before October 1, but the disability begins after October 1, the applicable minimum compensation rate is the rate in effect at time of disability.

Administrative rules state chiropractic treatment is limited to treatment consisting of manual manipulation of the spine to correct a subluxation as shown by x-ray or clinical findings. Nevertheless, the Board has allowed payment for other forms of treatment if needed to make the manipulation effective. In an unpublished decision, Hatcher v. Dynalectric Co., the Board again approved payment of electrical muscle stimulation, intersegmental/mechanical traction, and therapeutic exercises because they were related to the manual manipulation treatment.

A worker who fails to report earnings or knowingly and willfully omits or understates earnings on a LS-200 is subject to suspension of compensation until earnings are accurately reported. In Cutietta v. National Steel & Shipbuilding Co., the Board held the mere failure to file a report justifies suspension, but if the worker files a report, compensation cannot be suspended unless the worker knowingly and willfully omitted or understated earnings.

When a worker cannot return to usual and customary employment, to avoid PTD the employer must prove the worker could obtain and perform alternative suitable employment. If the employer offers the worker a suitable modified job, and the worker refuses the offer, the worker is not likely to receive PTD. In Warner v. Naval Personnel Command/MWR, the claimant argued the job employer offered as a third assistant in a classroom was work created out of employer’s beneficence, was not necessary, and therefore was sheltered employment and not representative of earning capacity. The Board disagreed. The inquiry should focus on whether the work would be profitable to an employer, i.e., does the employer gain a benefit from the employee’s work or is the employee being paid for doing nothing? The Board remanded with instructions to determine if claimant was capable of performing the job and if, in effect, she would be paid for doing nothing.

In Albina Engine & Machine v. Director, OWCP [McAlister], the 9th Circuit held in an occupational disease claim involving multiple employers the judge should evaluate the evidence consecutively, in reverse chronological order, but in an injury claim, the analysis should be simultaneous. Judge Dorsey, in Rodney Rhymes v. Washington United Terminals, issued an order concluding the reverse chronological order analysis should be used in a cumulative trauma claim because the simultaneous analysis could not be applied to work done at nine or more employers over a fifteen year period. This decision is not yet final, but if appealed, it would challenge the 9th Circuit’s comments regarding the analysis required in responsibility claims.

Please contact me at ncole@sbhlegal.com if you have any questions.