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.
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.