ISSUE: 2015 Part Three

This is a continuation of a brief list of calendar year 2015 Longshore Act related cases from the Benefits Review Board and the federal courts of appeal that I found interesting.

Crosby Forbes v. Norfolk Southern Railway Company c/o Norfolk Southern Corporation, BRB No. 14-0307, 4/16/15

This dispute involved the calculation of the claimant’s average weekly wage (AWW).  The claimant was a low seniority longshoreman with typical annual gaps in his employment history during periods when work was not available.  In the 52 weeks preceding his injury, he did not work for a total of 85 days due to his low seniority and the lack of work, and there were periods during which he received unemployment benefits.

The Administrative Law Judge (ALJ) derived the AWW by dividing the claimant’s actual earnings for the year preceding the injury by 52 weeks under section 10(c).  Among other things, the claimant objected to the use of 52 weeks as the divisor.  He argued that the ALJ should have subtracted the 85 days for which work was unavailable to him.

The ALJ noted that the claimant’s work history showed that he was not a 5 or 6 day worker, so section 10(a) did not apply for calculating the AWW.  He used section 10(c), which gives the ALJ considerable discretion to arrive at a reasonable AWW.

The Benefits Review Board affirmed the ALJ’s calculation, noting that the ALJ may account for time lost due to an unrelated injury, a strike, or other non-recurring events, but in this case the non-work time was a regular and recurring consequence of the claimant’s low seniority.  The ALJ’s method in this case reasonably accounted for the intermittent nature of the claimant’s work history and reasonably approximated his earning capacity at the time of the injury.  Basically, the ALJ found that this claimant missed time every year because of his low seniority, it was not a non-recurring event, and so the entire 52 weeks was used as the divisor.

Note:  The $5,610 that the claimant was paid in unemployment benefits was not included in the calculation, since these payments did not constitute “wages”.

Luigi A. Malta v. Wood Group Production Services; Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, BRB No. 144-0312, 5/29/15

The claimant was employed as a warehouseman offshore in state waters, providing support on the “Central Facility” for various connected satellite oil and gas platforms.  The Central Facility consisted of living quarters for workers who were operating the satellite production platforms plus a warehouse and 3 cranes for loading and unloading vessels carrying supplies and equipment for the satellite platforms.  A large part of the claimant’s job was the loading and unloading of the supplies and equipment.

There is the well known Herb’s Welding, Inc. v. Gray, 470 U.S. 414 (1985), principle that work on fixed oil and gas platforms in state territorial waters is not maritime employment (so no status) and the fixed platforms are considered to be artificial islands (so no situs).  Did this claimant’s work fall outside Herb’s Welding for coverage under the Longshore Act?

The ALJ denied the claim for Longshore Act benefits.  He found that the claimant did not meet situs as the Central Facility was not an “other adjoining area” customarily used for maritime activity under section 3(a) of the Longshore Act.  He found that the operations at the location where the claimant worked were in furtherance of drilling for oil and gas, which is not a maritime purpose.

The BRB reversed.  The BRB found that the claimant’s job involved “loading and unloading a vessel”, covered employment in the plain words of the statute, thus making the Central Facility an area customarily used for a maritime function.  The nature of the cargo that is loaded/unloaded is not determinative.  There is no independent connection to maritime commerce required so the loading and unloading of equipment and supplies used in oil and gas exploration qualified as maritime employment.

Jason Mosier v. BAE Systems, BRB No. 14-0359, 6/23/15

This claim involved a wrist injury for which the employer paid temporary total disability benefits as well as a scheduled award for a 5% permanent impairment to the left arm. Two years later the claimant filed a claim for medical benefits for treatment of chronic wrist pain, depression, and post traumatic stress disorder related to the original wrist injury.

The employer maintained that these symptoms were unrelated to the wrist injury but rather were due to an intervening electrical injury that was not employment related.

The ALJ found that the claimant’s testimony was sufficient to invoke the section 20(a) presumption of causation in the claimant’s favor, that the presumption was rebutted by the employer, and that based on the record as a whole the claimant did not establish a compensable work related claim.

The BRB agreed with the ALJ that the claimant had established his prima facie case based on his testimony alone, but it remanded the case for the ALJ to reconsider the issue of the section 20(a) presumption since he had not discussed several of the medical reports.

The BRB also vacated the ALJ’s decision that the employer had rebutted the presumption of causation.  Since this case arose in the federal Eleventh Circuit court of appeals (states of AL FL, GA), the BRB was looking for medical evidence from the employer “ruling out” a causal connection between the harm and the claimant’s employment.  In the Eleventh Circuit, the BRB follows Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294 (11th Cir. 1990)).

Note:  The BRB is aware that all of the other circuits have rejected the “ruling out” standard for rebutting the section 20(a) presumption, but it invoked it in this case nonetheless, following the law of the circuit.

Monty J. Carter v. Captain Elliott’s Party Boat and Texas Mutual Insurance Company, BRB No. 15-0016, 8/24/15

This was a “situs” case.  The claimant had the job title “port engineer”, and his regular duties involved repair, maintenance, and refurbishing of his employer’s vessels.  He also regularly maintained the employer’s dock and serviced spare parts and equipment.

At the time of his injury he was repairing a fence at one of the employer’s inland properties located 12 to 13 miles from its primary facility adjacent to navigable waters.  The claimant met status, since most of his work was maritime in nature.  But to be covered by the Longshore Act you must independently satisfy both status and situs.

The claimant argued that he spent 90% of his time doing maritime work on a covered situs, at the employer’s primary facility, and the work he did at the non-covered situs was exclusively related to the employer’s maritime activities so his injury should be covered.

This argument won’t work under the Longshore Act (although it might work under the Outer Continental Shelf Lands Act if there is a “substantial nexus” between a landside injury and the employer’s activities on the outer continental shelf).  The ALJ found that the location of the injury was not a covered situs and denied the claim.  The BRB affirmed.  In a case arising in the Fifth Circuit (LA, MS, TX) an area is an “adjoining area” only if it borders on or is contiguous with navigable waters.  Unlike status, situs is determined at the moment of injury, which in this case was on the employer’s inland property.

Note:  The problematic issue of “walking in and out of coverage” is status related.  Workers can and do walk in and out of situs.

Jeremy Schofield v. Federal Marine Terminals and Signal Mutual Indemnity Association, Limited, BRB No. 15-0035, 8/31/15

In this case, the indemnity compensation liability was settled for a lump sum under section 8(i).  The employer remained liable for future medical benefits.  The case ended up at the Benefits Review Board when the employer questioned the need for the claimant’s continuing use of narcotic medication.

The BRB acknowledged that, “Between March 2010 and January 2014 the claimant tested positive for marijuana and methadone, which had not been prescribed, as well as for higher than normal levels of prescription opiates and oxycodone.”

The employer’s medical specialists were of the opinion that the claimant was not a good candidate for opioid therapy and recommended that future treatment be targeted toward non-narcotic options.

To summarize, the ALJ concluded that the claimant was presented with two valid treatment options and that the claimant had the right to choose his own course of treatment.  Furthermore, the ALJ found that the claimant’s use of narcotic medications to treat his work-related back condition was reasonable and necessary.  The employer was liable for the claimant’s narcotics.  The BRB affirmed.

Nathaniel E. Raiford (Deceased) v. Huntington Ingalls Industries, Incorporated, BRB No. 15-0003, 8/24/15

This case involved a claimant who worked in a paint department for nearly 30 years, working the first shift.  He then was reassigned and moved to the second shift.  Shortly thereafter he suffered a stroke and did not return to work.  He had complained of sleeping pattern disruptions, problems with concentration, anxiety and depression following the shift change.

Were the stroke and its effects related to his employment and thus compensable under the Act?  Did the shift change constitute a working condition sufficient to establish the prima facie case and thus trigger the section 20(a) presumption of causation?

The ALJ found, and the BRB affirmed, that a shift change does not constitute working conditions for the purposes of the prima facie case and for the application of the section 20(a) presumption.

Work related stress may establish working conditions for a psychological injury, but not as a result of a legitimate personnel action.  The consequences of legitimate personnel actions on the part of the employer, such as layoffs and shift changes, will not constitute working conditions on which a claim can be based.

That’s it for 2015.


jack_crop-72dpiJohn 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.

ISSUE: 2015- Part Two- Benefits Review Board

As I noted last time, calendar year 2015 was a routine year for Longshore Act litigation.  There were no cases decided at the U.S. Supreme Court and no new conflicts were created among the federal courts of appeal.

Previously, I noted some calendar year 2015 cases from the federal courts of appeal that contained interesting (to me) issues.  This time I’ll look at some cases from the U.S. Department of Labor’s Benefits Review Board (BRB).

First, there were significant changes in the composition of the Benefits Review Board in the past year.

Betty Jean Hall was named Chairman and Chief Administrative Appeals Judge in April 2015 (she had been Acting Chair since the retirement of Nancy Dolder in April 2014).

Roy P. Smith retired in September 2014 and Regina C. McGranery retired in May 2015.

Greg J. Buzzard was appointed Administrative Appeals Judge in December 2014.

Ryan C. Gilligan was appointed Vice Chair and Administrative Appeals Judge in May 2015.

Jonathan Rolfe was appointed Administrative Appeals Judge in July 2015.

Judith S. Boggs (August 2004) completes the roster of the Members of the Board along with Judges Hall, Buzzard, Gilligan, and Rolfe.

Benefits Review Board

John Myshka v. Electric Boat Corporation, BRB No. 14-0161, 1/13/15

In this case, the claimant, a welder, settled claims for a lump sum under section 8(i) for hand injuries in 2001, underwent carpal tunnel release surgery, and returned to work.  He again began complaining of hand problems and filed new claims.  Medical evidence showed a permanent partial impairment to the right arm of 5% and to the right fourth finger of 2%.

The Administrative Law Judge (ALJ), noting that these impairment ratings were less than the ratings assigned at the time of the 2001 settlement, ruled that the claimant had failed to establish his prima facie case and denied the claim.  The ALJ reasoned that since the claimant’s condition appeared to be better in 2011 than it had been in 2001, he failed to establish the necessary harm or injury element for his prima facie case.

The BRB reversed and remanded.  It found that, “Uncontroverted evidence establishes that the claimant satisfies both elements of his prima facie case – he sustained a harm (right carpal tunnel syndrome) and working conditions existed that could have caused the harm”.  The claimant testified that his hand condition had worsened.

You can understand the ALJ’s reasoning.  If the impairment rating to the hand was better in 2011 than it had been in 2001 then it could not have been aggravated by continued employment.

The BRB stated:  “Contrary to the Administrative Law Judge’s reasoning, the fact that the claimant may have a lower impairment rating after his recovery from carpal tunnel release surgery than the rating assigned … in 1999 does not establish the absence of a work injury occurring in 2011.”

The case was remanded to the ALJ to reconsider the issue of prima facie case, the application of the section 20(a) presumption, the aggravation rule, and the “Nash doctrine”.  The Nash doctrine is an extra-statutory credit doctrine which gives the employer in scheduled award cases a dollar for dollar credit for previous scheduled awards for the same body part.

Everett Watson v. Fluor Daniel Corporation and The Insurance Company of the State of Pennsylvania, BRB No. 13-0374, 14-0183, 2/25/15

In this Defense Base Act case the claimant had multiple pre-existing heart related conditions.  He underwent surgery, had a pacemaker implanted, and did not return to work.  He claimed that his worsening heart condition was due to the conditions of his employment in Afghanistan.

An Administrative Law Judge found that the claimant failed to satisfy his prima facie case.  His condition was the same after as it had been before his employment.  His heart condition was not caused, contributed to, or aggravated by his employment.

In the alternative, the ALJ found that, assuming that the claimant had established his prima facie case, the section 20(a) presumption of causation was invoked, and the presumption was rebutted by the employer’s production of substantial evidence that the heart condition was not work related.  The ALJ found that based on the record as a whole, the heart condition was not work related.  The claim was denied.

The BRB affirmed this denial.  The ALJ had discussed all of the medical evidence and explained which medical reports and opinions he relied on and why.  The BRB noted that, “It is well established that an Administrative Law Judge is entitled to weigh the medical evidence and draw his own inferences therefrom.”

Randall Stovall v. Total Terminals International and 10 others, BRB No. 14-0266, 14-0266A, 2/27/15

This is a typical West Coast multi-employer case where identity of the responsible employer is an issue.  This case involved review of an ALJ’s rejection of a section 8(i) lump sum settlement application.

The claimant and one of the defendants (Total Terminals International (TTI)) submitted an application for a lump sum settlement under section 8(i) of the Act.  The ALJ disapproved the settlement on the grounds that it did not include the signatures of all the parties to the claim (i.e., all of the potentially liable employers).

The ALJ cited the Longshore regulations at 20 C.F.R. 702.242, which states that a complete section 8(i) application “be in the form of a stipulation signed by all parties”.

The BRB reversed the ALJ’s action and remanded.  It pointed out that the ALJ’s rationale was erroneous.  Any potentially liable employer may opt to settle separately with the claimant.  The claimant and TTI sought to settle only claims against TTI.  The reference in the regulations on which the ALJ relied means only those parties to the individual claim addressed in the settlement application.

The BRB also noted that there is no credit for settlements with other employers in a non-scheduled award case for the employer found ultimately liable.

Raymond Babick v. Todd Pacific Shipyards, BRB No. 14-0177, 3/30/15

In this case the BRB discussed the shifting burdens of proof in a discrimination claim under section 49 (33 U.S.C. section 48(a)).The claimant had a total of 7 accidents between 2005 and February 2010.  Following his latest accident the claimant returned to work, was given an unsatisfactory performance report and was suspended for 3 days for violation of a safety rule.

The ALJ found that the claimant established a prima facie case of discrimination, which the employer failed to rebut, awarded back wages, and levied a $4,000 penalty.

Section 48(a) prohibits an employer from discharging or discriminating (treating like individuals differently) against an employee because he has claimed compensation.  The remedy is reinstatement and lost wages.

The BRB resolved existing ambiguities in the case law and adopted a “shifting burden (of proof)” analysis in section 48(a) claims.

First, the initial burden is on the claimant to establish his prima facie case and demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent.

Next, this gives rise to a rebuttable presumption that the employer was motivated at least in part by the claimant’s claim filing.  The burden then shifts to the employer to prove that it was not motivated, even in part, by the claimant’s exercise of rights under the Act.  This burden, to rebut the presumption, is one of production of substantial evidence only (not persuasion by a preponderance of the evidence at this stage).

Finally, if the presumption is rebutted, the burden of proof shifts back to the claimant to prove his claim of discrimination by a preponderance of the evidence.

Note:  The insurance company is not a party to discrimination claims.

James Baker, Jr. v. Gulf Island Marine Fabricators, LLC; Director, Office of Workers’ Compensation Programs, United States Department of Labor, BRB No. 14-0344, 7/14/15

In this Outer Continental Shelf Lands Act (OCSLA) case the claimant worked as a carpenter at the employer’s land based facility fabricating topside living quarters to be incorporated onto the tension leg oil platform Big Foot. The first issue concerned whether the tension leg platform was a vessel and thus whether the claimant’s job would be considered shipbuilding.

The BRB affirmed the ALJ’s finding that the Big Foot was not a vessel but rather would end up as a fixed platform for oil extraction on the outer continental shelf (OCS).

So the claimant is not covered under the Longshore Act as a shipbuilder.  But is he covered under the OCSLA since he is involved in platform construction?

The ALJ and BRB cited the Supreme Court’s decision in Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012), noting that the OCSLA covers injuries occurring “as the result of operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources … of the subsoil and seabed of the (OCS)” (43 U.S.C. section 1333(b)).  The worker is covered if his activities are the “result” of the OCS operations, i.e., they have a substantial nexus to the OCS operations, or there is a significant causal link between the injury and the employer’s on-OCS operations conducted for the purpose of extracting natural resources from the OCS.

The ALJ found, and the BRB affirmed, that the living quarters being constructed were not unique to OCS operations and the claimant’s employer would have no role in the installation or operation of the platform on the OCS.  Thus the “significant causal link” to the employer’s on-OCS operations was missing.

The claimant is not covered under the OCSLA.

I’ll pick up the rest of the 2015 cases from the BRB next time.




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.