Top Ten Principles in Occupational Disease Cases – Part Two

On January 18, 2018, we discussed the Top Ten Principles of the Last Employer Rule in Occupational Disease cases and the different applications of the Last Employer Rule as applied in occupational disease cases and traumatic injury cases.

Two recent cases illustrate exceptions to the application of the general principles.

Scott E. Horton v. Specialty Finishes, LLC and Signal Mutual Indemnity Association, Limited; Industrial Marine, Incorporated and American Equity Underwriters, Incorporated, BRB Nos. 17-0168 and 17-0168A, November 15, 2017, is a traumatic injury case.  The injured worker was a rigger whose duties included pressure washing and painting.  He suffered a lower back injury on January 21, 2013, while employed at Specialty Finishes.  He was discharged from treatment on September 18, 2013, with the medical conclusion that he was not able to return to his former work.

He went back to work, however, on December 19, 2013, with Industrial Marine, where his duties included painting and needle gunning, which included “heavy” work.

The claimant last worked on March 30, 2014.  He filed a claim for benefits under the Longshore Act against Specialty Finishes.

According to the General Principles and the Aggravation Rule, any work at Industrial Marine that aggravated his back condition would make Industrial Marine the last responsible employer with liability for all resulting disability.  Remember, unlike occupational disease cases where any injurious exposure assigns liability to the last employer, in a traumatic injury case there must be a subsequent injury that aggravates, accelerates, or combines with the initial injury to constitute a new injury.  So, was Industrial Marine liable in this case based on the principle that the claimant’s work for it aggravated his back condition?

The U.S. Department of Labor’s Administrative Law Judge (ALJ) found that there was no medical evidence that the claimant’s back worsened because of his work for Industrial Marine, and he credited the claimant’s testimony that his back pain was the same after his injury at Specialty Finishes and throughout his employment at Industrial Marine.  He claimed to have felt the same after he stopped working at Industrial Marine.  The ALJ also noted that no claim had been filed against Industrial Marine by the claimant (Specialty Finishes had joined them to the case as a potentially liable defendant).

The ALJ found that Specialty Finishes was the last responsible employer, even though it was not the last employer in time.

So, the last chronologic employer in a traumatic injury case has a defense other than not being the last employer in time.  It can show that no aggravation occurred while the claimant was in its employ.

Somewhat technically, this is not a Natural Progression versus Aggravation case.  The ALJ did not find that the claimant’s back condition worsened while working for Industrial Marine due to the Natural Progression of the injury that occurred while the claimant was employed by Specialty Finishes.  There was neither the Natural Progression nor an Aggravation of a prior injury.  Nothing happened to the claimant’s back while he was employed at Industrial Marine.

Note:  Since no claim was filed by the claimant against Industrial Marine, the question of the Section 20(a) presumption did not apply against it.

The second case is a curious occupational disease case.  The (unpublished) case of Bollinger Shipyards, Incorporated; American Longshore Mutual Association v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor; Kenneth R. Worthey; Thoma-Sea Shipbuilders, L.L.C.; Louisiana Workers’ Compensation Corporation (Fifth Circuit, No. 16-60370, May 17, 2017) involved a claimant who had worked for 15 years as a welding supervisor at Bollinger, where he was exposed to welding fumes, sandblasting dust, industrial cleaning solvents, and other fumes and chemicals.

On March 22, 2010, the claimant’s treating physician performed pulmonary function testing, diagnosed chronic obstructive pulmonary disease, and advised the claimant that he could not return to work.

But the claimant did go back to work.  He worked for Thoma-Sea from March 29 to May 28, 2010, once again in the position of welding supervisor, where he was exposed to the same fumes as at Bollinger.

The claimant filed a claim for benefits under the Longshore Act in July 2010, at which time pulmonary function testing showed essentially the same results as in the March 2010 test.

According to the general principles in occupational disease cases, under Cardillo, the responsible employer is the employer during whose employment the claimant was exposed to injurious stimuli prior to the date that the claimant became aware that he was suffering from an occupational disease arising from employment.  All that is required to assign liability is exposure.  An aggravation of an existing impairment is not necessary in occupational disease cases.  According to the well-entrenched general principles, it would appear that Thoma-Sea was the last responsible employer.  The claimant worked there for two months in the same position he had held at Bollinger.

In this case, the claimant complicated the usual straightforward analysis by going back to work for another employer after he became aware that he was suffering from a work-related occupational disease (based on the March 22, 2010, diagnosis).

So who is the responsible employer in this case?  The Administrative Law Judge and the Benefits Review Board found that Bollinger was liable, even though it was not the last employer to expose the claimant to injurious stimuli.  The Fifth Circuit has affirmed this result.

In my opinion, the analysis and reasoning in this case raise questions.  In the Fifth Circuit, where this claim arose, the approach in occupational disease cases is typified in the case of Avondale Industries, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, 977 R.2nd 186 (5th Cir. 1992).  An employer can rebut the presumption of causation by showing that the employee was exposed to the same working conditions at a subsequent covered employer, regardless of the brevity of the exposure, with no de minimus requirement.  Any exposure with the potential to cause disease is considered injurious and assigns liability.

In our present case (Worthey), the “substantial evidence” relied upon by the ALJ for assignment of liability against Bollinger, and approvingly cited by the Fifth Circuit, had to do mostly with the fact that there was no aggravation of the claimant’s lung condition during his employment with Thoma-Sea.  The ALJ found it significant that the July 2010 testing showed essentially the same results as the March 2010 testing.  The ALJ cited testimony that the claimant’s time with Thoma-Sea did not “aggravate” his pulmonary condition, and he even made a specific finding that the claimant’s employment at Thoma-Sea did not “contribute” to the claimant’s disability.

As we’ve seen, there is no need to show an aggravation or contribution to assign liability in occupational disease cases.  Any injurious exposure is enough to assign liability.

Also, under Cardillo the date of injury in an occupational disease case is the date of the claimant’s awareness.  In this case, the ALJ found that this occurred with the March 22, 2010 testing and diagnosis. But the claimant went back to work doing the same type of job, so arguably he wasn’t “disabled” until he left work at Thoma-Sea in May 2010.

What if the date of “awareness” and the date of “disability” are different?  That issue was avoided in this case, because the ALJ found (and the finding was affirmed) that the date of awareness and the date of disability were the same – March 22, 2010 –disregarding the fact that the claimant returned to work after that date doing the same job where he experienced exposure to injurious stimuli.

There are questions.  The ALJ found that awareness and disability both occurred at the same time – March 22, 2010 – based on a pulmonary function test, yet the ALJ awarded disability benefits to commence on May 10, 2010.

The ALJ found that there was no “aggravation” – that is, no new claim, against Thoma- Sea even though the claimant testified that his exposure at Thoma Sea was the “worst”, and that he would cough up “black stuff” every night while working at Thoma-Sea.  Yet, the ALJ made no finding that the claimant was not credible.

By focusing on the date of “awareness” and forcing the conclusion to fit the Cardillo principles, the opportunity was missed to determine what the outcome should be when “awareness” and “disability” do not occur at the same time.

This is an unusual case, but it does illustrate the type of complication that can arise in assigning liability in occupational disease cases.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Last Employer Rule

The Last (Maritime) Employer Rule and the Aggravation Rule are the two methods of assigning liability in Longshore Act cases. Since they are well-established in Longshore Act jurisprudence, it may be useful to summarize the prevailing principles of these doctrines.

Here, in no particular order, are the top ten general principles governing the doctrine of the Last Employer Rule in occupational disease cases under the Longshore and Harbor Workers’ Compensation Act (“the Act”).

The Last Responsible Employer is defined as the last employer covered (by the Act) prior to the injured worker’s awareness of his injury.

  1. The rule of Last Responsible Employer was established in the case of Travelers Insurance Company v. Cardillo, 225 F.2d 137 (2nd) cert. denied 350 U.S. 913 (1955). Note: Cardillo was a hearing loss case, so the Last Responsible Employer doctrine applies in hearing loss cases as well as in occupational disease cases.
  2. In an occupational disease case, the injured worker’s exposure to injurious stimuli need not actually contribute to or aggravate his disability for liability to be assigned. An actual causal relationship between exposure at a specific employer and the disease is not necessary in occupational disease cases.
  3. There is no de minimus Any exposure which has the potential to cause disease will result in the assignment of liability.
  4. In most cases, it is irrelevant that the injured worker’s disease existed while he was working for a previous employer.
  5. Evidence of the long latency period for the development of an occupational disease is not a sufficient defense for the last employer.
  6. The Last Employer Rule is a rule of liability assessment, not jurisdiction. Exposure to injurious stimuli in areas outside the Act’s coverage which occur subsequent to the covered exposure does not alter the liability of the Last Responsible Maritime Employer.
  7. The employer has the burden of proving it is not the Last Responsible Employer by establishing that: 1) exposure to stimuli during its period of employment could not cause the employee’s occupational disease, or 2) the employee performed work covered under the Act for a subsequent employer where he was exposed to injurious stimuli.
  8. The evidence is analyzed for each employer separately and sequentially, starting with the most recent first.
  9. Where the evidence does not clearly indicate which of the covered employers who exposed the injured worker to injury was his last employer, the liability will be assigned against the employer who is claimed against.
  10. Causation is necessary to establish the injured worker’s entitlement to benefits and the issue of causation deals with whether his harm is related to any workplace exposure at any employer. Once causation is established (i.e., that the injury is related to an occupational exposure) the Last Employer Rule allocates liability. The Section 20(a) presumption applies.

The Last Responsible Employer Rule in occupational disease cases has a counterpart in traumatic injury cases, known as the Aggravation Rule, but there are differences.

For example, under the Aggravation Rule, there must be an aggravation, acceleration, or contribution to an existing impairment, constituting a new injury.  Exposure alone, as in occupational disease cases, is not enough for liability to be assessed against the last employer.

The determination of the responsible employer in cumulative traumatic injury cases turns on the distinction between whether a claimant’s disability is the result of the “natural progression” of a work-related injury or an “aggravation” of that injury.  Natural progression means that the disability would have occurred and been the same without the occurrence of a subsequent injury or aggravation.  If the disability results from the natural progression of an initial injury, then the employer at the time of that initial injury is the Responsible Employer for the entire disability.  But if the conditions of employment with a subsequent employer aggravated, accelerated, or combined with the earlier injury, then the employer at the time of the later injury is liable for the entire resulting disability.

Also, the burden of proof to avoid liability among potentially liable employers is simultaneous, rather than sequential last-to-first as in occupational disease cases.

Also, in cumulative traumatic injury cases, the U.S. Department of Labor’s Benefits Review Board has created an extra statutory credit for the last employer in scheduled award cases.  The Last Employer will get a dollar-for-dollar credit in the later case for previously scheduled awards involving the same schedule.  There is no similar credit for the last employer in occupational disease cases.

The Last Responsible Employer rule and its assignment of liability are well-established, but it is not automatic.  Next month, we will discuss two recent cases where the last employer chronologically was found not to be liable for benefits.  One is a traumatic injury case, and the other is a curious occupational disease case.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Longshore Act Jurisprudence – Calendar Year 2017 Part II

This is Part Two of a brief review of some interesting Longshore Act cases from calendar year 2017.

In the Matter of the Complaint of Buchanan Marine, L.P., as Bareboat Charterer of the Barge B-252, In the Matter of the Complaint of A.P. Franz, Jr., Trustee, as Owner, Tilcon New York, Inc. v. Wayne Volk, Karen Volk, Second Circuit, No., 16-1092-cv, October 27, 2017

A primary issue in this case was whether a barge worker qualified as a “seaman” for purposes of the Jones Act and the general maritime law.  The injured worker was a “barge maintainer”, responsible for inspecting barges and repairing any damage so that the barge could be loaded with rock at a quarry, and then performing a final inspection after loading.

He worked an hourly shift, went home at the end of each workday, and did not eat or sleep on any of the barges.  He did not belong to a maritime union or hold a maritime license.  He only worked on the barges while they were secured to the dock.

The Second Circuit affirmed the district court’s dismissal of the worker’s Jones Act and general maritime law claims, finding as a matter of law that he was not a seaman.  His work was not of a “seagoing nature”, and he did not have a substantial relationship to the vessels.

This sensible decision is in contrast with the recent Fifth Circuit decision in Naquin v. Elevating Boats, LLC, 744 F.3d 927 (5th Cir. 2014), in which a similar land-based ship repair worker was found to be a seaman.

Sharon Reagan (Widow of William Reagan) v. Thames Shipyard and Repair and Liberty Mutual Insurance Company, BRB No. 16-0682, May 11, 2017

In this asbestos case, the U.S. Department of Labor’s District Director issued a Compensation Order dated July 14, 2015, finding that Electric Boat Corporation was the last responsible employer and liable for all benefits under the Longshore Act.  This Order was not appealed and thus was final.

Thames Shipyard subsequently requested that the claimant withdraw her claim against it, and the claimant refused.  Thames then went to the Office of Administrative Law Judges (ALJ) with a request that the claim against it be dismissed.

The claimant argued that although Electric Boat was the responsible employer, Thames was the second to last employer and the claim against it should not be dismissed because it could be liable if Electric Boat should one day default.

The Benefits Review Board (Board) affirmed the ALJ’s dismissal of the claim against Thames, holding that there is no basis in the law for contingent liability on the part of Thames.  All liability is assigned to the last responsible employer (Electric Boat here by final Compensation Order) such “that there can only be one responsible employer in occupational disease cases”.

The Board pointed out that if the responsible employer should default, the claimant could then request payment from the Special Fund under Section 18(b).

Arthur B. Taylor v. SSA Cooper, L.L.C. and Homeport Insurance Company and Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, BRB No. 16-0174, June 30, 2017

This case was discussed in a previous blog post and can be summarized quickly.

An employer can avoid attorney fee liability under section 28(a) if it pays “any compensation on or before the thirtieth day after receiving written notice of a claim for compensation” from the U.S. Department of Labor’s District Director.  The issue was whether medical benefits constitute “compensation” under section 28(a).

The Benefits Review Board’s answer is that “compensation” in section 28(a) means either indemnity or medical benefits.  Fee liability depends on whether there was success in obtaining the claimed but denied benefit.  If an employer pays indemnity benefits but not medical benefits within the thirty days, it may be liable for an employer-paid attorney fee.

Melvin Roy v. Cooper/T.Smith, Incorporated; Ryan Walsh, Incorporated/SSA Gulf and Homeport Insurance Company, BRB No. 16-0603, May 18, 2017

This case was discussed in a previous blog post, illustrating much of what is wrong about the adjudication of hearing loss cases under the Longshore Act.  Essentially, in many instances, there is no time limit for the filing of a hearing loss claim against the last maritime employer, and the maritime employer will find that it is paying for the effects of noise exposure which it did not cause.  In this case, the employee filed a hearing loss claim 21 years after his last day of maritime employment.

Moses Reid, Jr. v. Huntington Ingalls, Inc., BRB No. 17-0304, October 6, 2017

The Melvin case demonstrates several of the inequities in the way that hearing loss claims are adjudicated under the Longshore Act.  Now we have a factually similar case that went the other (correct) way.

The 68-year-old claimant in this case last worked in maritime employment for Huntington Ingalls for one year in 1988/89, last worked anywhere in 2001, and filed a hearing loss claim against Huntington Ingalls in March of 2014, 25 years after his last maritime employment.

The audiologist opined that the claimant’s hearing loss was due to some extent to noise exposure, but recognized other possible sources, such as age, ototoxic medication, and the claimant’s work in non-covered employment following his last maritime employment, such as a driver of dump trucks and cement mixers. She could not differentiate or quantify what the claimant’s hearing loss was as of his last maritime employment in1989.

The Administrative Law Judge (ALJ) also noted that the claimant was only “moderately credible” as to when he first noticed hearing problems, citing such contradictory indications as medical reports during the 1990s and the testing in connection with the claimant’s commercial driving license applications, when no hearing problems were noted.

The BRB adhered to the proper standard of review, affirming the ALJ’s finding that the employer rebutted the section 20(a) presumption with substantial evidence and affirming the ruling that the claimant failed to establish by a preponderance of the evidence that his hearing loss in 2014 was due to his work for the employer in 1988/89.  This is a rational and equitable decision.

 

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

AEU Longshore Blog ISSUE: Review of Longshore Act Jurisprudence for 2017

This is Part One of a brief review of interesting (to me) cases decided during calendar year 2017 by the U.S. Department of Labor’s Benefits Review Board and the federal circuit courts of appeal.

Metro Machine Corporation, d/b/a General Dynamics NASSCO-Norfolk; Signal Mutual Indemnity Association, Limited v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor; Delores Stephenson, Fourth Circuit, January 20, 2017

This is the case of an employee who worked as a pipe fitter from 1983 to 2011, and who had a lifelong history of breathing problems.  Chronic obstructive pulmonary disease (COPD) was diagnosed in 1996, and emphysema was diagnosed in 2001.

After voluntary retirement in 2011, the employee filed a claim for medical benefits on March 30, 2012, based on an incident at work in 2008 when welding and paint fumes were inhaled allegedly aggravating the chronic lung conditions.  The employee also suffered a “secondary injury” when in October of 2011 he suffered a fracture of the T7 vertebra.  His treating physician attributed this to excessive coughing and the long-term intake of steroids for management of his respiratory conditions.

The case offers a useful discussion of the issues of prima facie case, the Section 20(a) presumption, the aggravation rule, and the difference between “primary” and “secondary” injuries.

The one issue in the case that I would like to highlight is the holding that in the Fourth Circuit the Section 20(a) rebuttable presumption of causation applies to secondary injuries (such as the fracture in this case) just as it applies to primary injuries.  The court noted that Section 20(a) does not distinguish between claims concerning primary injuries and those concerning secondary injuries.

Chugach Management Services; Zurich American Insurance Company v. Edwin Jetnil; Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, Ninth Circuit, July 21, 2017.

The issue in this Defense Base Act (DBA) case was whether the judicially-created zone of special danger doctrine may be applied to a local national employed in his home country.  The zone of special danger doctrine dates back to the U.S. Supreme Court case of O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951).  The goal is to compensate employees for injuries resulting from reasonable and foreseeable activities in isolated or dangerous locales.

The claimant in this case was a citizen of the Republic of the Marshall Islands, and he was on a work assignment on the remote Kwajalein Atoll.  The injury occurred when the claimant traveled by boat to a remote island of the Atoll.  While there on his time off, he engaged in the common practice of reef fishing, where he slipped and cut his foot on coral.

The employer argued that the zone of special danger doctrine applies only to employees who are sent abroad from the United States.

The court noted that the DBA does not distinguish between employees sent abroad from their home country and local nationals, but it also noted that no court has specifically decided this issue, although language in two cases from other circuits (the Fifth and the First) seems to support the employer’s argument.

The Ninth circuit stated that in facts such as presented in this case the conditions of employment for local nationals may very well subject them to remote, uninhabited, and inconvenient locales, even in their home country.

The Court affirmed the decisions of the Administrative Law Judge and the Benefits Review Board and concluded that the claimant’s injury was covered by the Defense Base Act under the zone of special danger doctrine.

Robert Dallas v. United States of America, Fifth Circuit, February 27, 2017

This was a seemingly straightforward case of a claimant employed by the U.S. Army Corps of Engineers as the master of a towboat owned by the Corps.  He was injured and brought suit against the Corps under the Jones Act and the general maritime law.

The federal district court granted the defendant’s motion to dismiss the suit on the basis of lack of subject matter jurisdiction.  The court ruled that the Federal Employees’ Compensation Act (FECA) was the claimant’s exclusive remedy.

The Fifth Circuit affirmed the dismissal under the binding U.S. Supreme Court precedent of Johansen v. United States, 343 U.S. 427 (1952), but acknowledged that while FECA provides that it is the exclusive remedy for injured U.S. employees, it also expressly states that it (FECA) “does not apply to a master or a member of a crew of a vessel”.

Is this an exception to the FECA’s exclusivity provision?  Was the Supreme Court wrong in Johansen?  We don’t know because the Fifth Circuit pointed out that “we are not at liberty to consider whether a Supreme Court decision was wrongly decided”.

Kyle Halle v. Galliano Marine Service, L.L.C., C-Innovation, L.L.C., Fifth Circuit, April 19, 2017

This was neither a Longshore Act case nor a Jones Act case, but it is interesting in that it contains a discussion of the two different tests for crewmember status under the Jones Act and the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 213.

The plaintiffs, remotely operated vehicle (ROV) technicians, were suing for unpaid wages for overtime, and the defendants argued that the plaintiffs were “seamen” and thus exempt from the FLSA’s overtime provisions.

The plaintiffs navigate and control ROVs while aboard an ROV Support Vessel, with their duties dedicated only to the ROVs.

The test for seaman status under the FLSA has two prongs:  the first is whether the employee performs as a master or subject to the authority, direction, and control of the master aboard a vessel, and the second is whether the employee’s service is primarily offered to aid the vessel as a means of transportation.  By regulation, there is a 20% test.  If the employee’s duties are more than 20% non-seaman, then he may not meet the “primary” test of prong two.

The broader, more inclusive test for seaman status under the Jones Act and general maritime law is also a two-part test.  First, the employee must contribute to the mission or function of the vessel, and second, he must have a substantial employment connection to a vessel in terms of nature and duration (there is a 30% test for duration).

In this case, summary judgment for the defendants was reversed and remanded, so there is no final outcome.  But the case is interesting nonetheless.

Seaboard Spirit Ltd., Seaboard Ship Management, Inc., Seaboard Marine of Florida, Inc. v. Antwon Hyman, Sieshia Reid

While not from calendar year 2017, this case is worth mentioning as well. The issues in this case were whether the vessel owner is subject to duties beyond the three Scindia duties when it acts as loading stevedore, and if the vessel owner can be sued under both Section 905(b) and Section 933(a) of the Longshore Act.

To shorten a long story (which is detailed in a previous post), a vessel may not be sued by a longshore worker under both section 905(b) and section 933.  If it applies, section 905(b) is the longshore worker’s exclusive remedy for negligence against the vessel.

The vessel may, however, be held to a higher standard of care beyond the section 905(b) Scindia duties where it acts as loading stevedore.  In this case, because the vessel’s crew secured the cargo in the Bahamas, it acted as and assumed the duties and standard of care of an onloading stevedore.

In Part Two, we will continue this review of recent longshore jurisprudence.

 

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John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.