July 24, 2013
by Norman Cole

Longshore Recent Caselaw Update

norman coleHere are a few interesting, if not noteworthy Longshore decisions for employers to be aware of.

When a worker sustains an injury and produces evidence the injury could have been caused by work, the injury is presumed compensable, per §20(a), until the employer produces affirmative evidence the injury is not work related.  In Insurance Company of State of Pennsylvania v. Director, OWCP, the 5th Circuit held the §20(a) presumption does not apply to secondary injuries, such as an infection that develops as a consequence of a work related surgery but was not directly caused by the on the job injury.  Instead, the claimant must prove the secondary injury is the natural and unavoidable consequence of the initial injury.  The 9th Circuit has not yet indicated if it agrees or disagrees with the 5th Circuit’s interpretation. 

§3(c) bars compensation if due to the willful intent of the employee to injure or kill himself.  In Kealoha v. Director, OWCP, the 9th Circuit held a self inflicted wound or death is compensable if there is a direct and unbroken chain of causation between a compensable work related injury and the suicide attempt.  Claimant need not demonstrate it stemmed from an irresistible suicidal impulse – the standard often cited in suicide claims.

In an unpublished decision, Watson v. Service Employees International, Inc., the Board offered extensive comment on how to evaluate self employment income as a measure of residual earning capacity.  Neither gross receipts or taxable income provide a good indication of residual earning capacity.  Depending on the circumstances, it might be reasonable to determine the cost of hiring another person of equivalent skill and experience to perform the same work, i.e., the value of the work performed, less the profits or goodwill.

The 5th Circuit, in an en banc decision in New Orleans Depot Services v. Director, OWCP, reversed its earlier panel’s decision, which had concluded a container repair mechanic was injured on a covered situs and had performed work integral to loading and unloading.  Critics of the panel decision argued the area where containers were repaired had no docks, piers, or wharfs, was 300 yards from a canal, and the area was not chosen because of access to a waterway.  Additionally, critics argued container repair was not customary maritime work a dockworker or longshoreman would have to perform to successfully transfer cargo between ship, and the work was not done to load or unload or repair vessels.  The full court reversed because it adopted the 4th Circuit’s definition of situs.  The adjoining area must border on or be contiguous with navigable waters, and the area where claimant was injured did not meet that standard.  The 9th Circuit adopted a different standard in Brady-Hamilton Stevedoring Company v. Herron, 568 F.2d 137, 7 BRBS 409 (9th Cir. 1978).  It requires consideration of four factors: (1) Suitability of the site for maritime uses listed in §3(a) (unloading or unloading a vessel; or building or repairing a vessel); (2) Whether the site is primarily devoted to uses in maritime commerce; (3) The proximity of the site to a waterway; and (4) Whether the site is as close as feasible to the waterway given all of the circumstances.

If you have any questions about these decisions or other issues involving LHWCA claims, you can e-mail me at: .