In a recent unpublished case, the Board reviewed the rules for determining the responsible carrier in a cumulative injury case:
The rule for determining which carrier is liable for the totality of claimant’s disability in a case involving cumulative traumatic injuries is applied as follows: if the disability results from the natural progression of an initial injury and would have occurred notwithstanding a subsequent injury, then the initial injury is the compensable injury, and, accordingly, the carrier at the time of that injury is responsible for the payment of benefits. If, on the other hand, a subsequent work injury aggravates, accelerates, or combines with claimant’s prior injury, thus resulting in claimant’s disability, then the subsequent injury is the compensable injury and the subsequent carrier is fully liable for any disability resulting therefrom. [The first carrier] need not establish that the injury claimant sustained in its employ played no role in claimant’s ultimate disability in order to be absolved of liability. [The first carrier] need establish only that, after [the subsequent carrier] assumed coverage, claimant sustained an injury that aggravated, accelerated or combined with his prior back injury in order for [the subsequent carrier] to be held liable for medical expenses incurred after the second injury. If, however, claimant’s disability is due to the natural progression of [the initial] injury, [the first carrier] remains fully liable for claimant’s medical benefits. … [I]n a traumatic injury case, the subsequent employment must contribute in some way to the resultant disability in order for a subsequent carrier to be held liable. It is insufficient to show merely that claimant’s condition was symptomatic while [the subsequent carrier] provided coverage. (Citations omitted.) Aguilar v. MMKK, Inc. dba Walton Barge Terminal, BRB No. 15-0087 (11/17/15)
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The Board recently held that a change in shift is a legitimate personnel action that does not give rise to a compensable claim.
The claimant worked for the employer as a painter in its sign shop for almost 30 years, working the first shift. The sign shop eventually closed, and the claimant was reassigned to painting ships in the shipyard. Soon thereafter, he was moved to the second shift. In his deposition, “the claimant stated he was not happy with the shift change. He worried about getting home because he did not drive and the bus did not run that late, so he had to hire someone to drive him home. Additionally, his sleep pattern was affected, and he could not concentrate on his work.” One day, the claimant went to the hospital believing that he had an anxiety attack. In fact, he was diagnosed with a stroke. After his discharge, the claimant received treatment for stroke-related issues, depression, and anxiety. He never returned to work. The claimant filed a claim alleging work-related depression, anxiety and strokes. The Board observed that the claimant proved a “harm,” including altered mental status and a stroke. The Board then had to determine whether conditions at work caused the harm. According to the Board, the claimant (through his estate) only alleged the change from the first to the second shift as the cause of the harm. However, the Board held that the claimant’s “shift change does not constitute a ‘working condition’ to which the Section 20(a) presumption applies. Rather, as the administrative law judge properly found, the shift change was a ‘legitimate personnel action’ that cannot result in a compensable injury.” In its analysis, the Board recalled that a psychological injury may be compensable, even if it results from only minimal stress. The psychological injury may be compensable if it results from a work-related accident or conditions at work, but not if it results from a “legitimate personnel action.” Citing an earlier case, the Board explained that a “legitimate personnel action or termination is not the type of activity intended to give rise to a worker’s compensation claim. To hold otherwise would unfairly hinder employer in making legitimate personnel decisions and in conducting its business. Employer must be able to make decisions regarding layoffs without the concern that it will involve workmen’s compensation remedies.” The Board specifically rejected an argument from the claimant that a “legitimate personnel action” must result in the termination of the employee. The claimant seemed to suggest that because he continued working after the employer changed his shift, he continued to endure working conditions that brought about his stress and stroke. In rejecting this argument, the Board explained that “there are other personnel decisions an employer must make to run its business, and not all involve terminations.” Finally, the Board noted that cumulative stress from general working conditions could be compensable. However, because the claimant alleged that his stress resulted solely from the shift change, which was a legitimate personnel decision, the Board affirmed that his claim was not compensable. Raiford v. Huntington Ingalls Industries, Inc., BRB No. 15-0003 (8/24/15) A claimant who fails to report post-accident earnings to an employer may forfeit his right to compensation. Section 8(j) of the Act provides that “the employer may inform a disabled employee of his obligation to report to the employer not less than semiannually any earnings from employment or self-employment, on such forms as the Secretary shall specify in regulations.” Under the regulations, an employer may provide the claimant with an LS-200 form for use in reporting earnings. Section 8(j) also specifies that a claimant forfeits his right to compensation during any period in which he (A) fails to report his earnings when requested, or (B) knowingly and willfully omits or understates any part of such earnings. The Board recently held that these two provisions of Section 8(j)(2) set forth distinct situations when compensation may be forfeited. The Board explained that “Section 8(j)(2)(A) applies when the claimant ‘fails to submit the report on earnings’ when requested to do so, whereas Section 8(j)(2)(B) applies when claimant files the report but ‘knowingly and willfully omits or understates any part of such earnings’ in that filing.
In this case, the claimant earned income from rental properties following his injury. After considering the claimant’s testimony and surveillance evidence, the ALJ determined that the claimant played a significant role in managing his property to the extent that he engaged in self-employment. The employer had issued an LS-200 to the claimant. The claimant completed the form, but failed to report this rental income as earnings from self-employment. Because the claimant returned the form, the Board held he did not fail to “submit” the form as required by Section 8(j)(2)(A), so the question then became only whether the claimant knowingly and willfully omitted his earnings from his rental property. The Board remanded the claim to the ALJ for a determination on this issue. On another issue, the Board held that an employer is not entitled under Section 3(e) to a credit for California Employment Development Department (“EDD”) benefits paid to a claimant . As the Board explained, EDD benefits provide “short-term disability payments to disabled workers. … This program is state-mandated and funded, in part, through employee payroll deductions.” Under California law, an employee cannot receive EDD benefits if he is entitled to workers’ compensation benefits, and the EDD can file a lien to recover any overpayments. In this case, the employer paid compensation benefits, and reimbursed the EDD its lien. The Board refused a credit to the employer, noting that Section 3(e) only allows a credit for payments made pursuant to “any other workers’ compensation law.” The Board found “on the facts of this case” that the employer failed to demonstrate that EDD benefits are paid pursuant to a workers’ compensation law. In limiting its decision to the specific facts of the case, the Board seemed to leave open the possibility that it could reach a different conclusion if presented with a different record. Cutietta v. National Steel and Shipbuilding, BRB No. 14-0335 (7/8/15) The zone of special danger doctrine of the Defense Base Act applies to local nationals working in their home country who are injured during their off-duty hours, the Benefits Review Board recently held.
The DBA covers employees who are neither citizens nor residents of the United Stated States and who are employed in their homelands by DBA employers. The zone of special danger doctrine provides that a DBA employee may be within the course of employment when injured, even if the injury did not occur within the space and time boundaries of work, if the “obligations or conditions of employment” create a “zone of special danger” out of which the injury arose. At one time in the 1950s, the DBA was amended to remove non-U.S. citizens from coverage. However, later amendments restored this coverage. The Board held as a matter of law that these Congressional changes to the DBA did not prohibit application of the zone of special danger doctrine to local nationals, because the doctrine was first announced by the Supreme Court in 1951, prior to the amendment removing non-U.S. citizens from coverage. Moreover, the Board noted, when Congress later restored coverage, it did not include any restrictions against covering local nationals. The Board further explained that the application of the zone of special danger doctrine to cases involving local nationals who are injured while working in their home countries involves a factual determination. “The zone of special danger doctrine may or may not be applicable to a local national working for a DBA employer in his home country, depending on the specific circumstances presented by the individual case. As is generally true for DBA cases involving the application of the zone of special danger doctrine, the question of whether the doctrine is applicable to a claim filed by a local national is a factual determination ….” In this case, the claimant, a citizen of the Republic of the Marshall Islands, lived on a small island in the Republic. He worked at the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site near the Island, for employers providing logistical support for the missile site. At times, the claimant worked on an island only accessible by boat or helicopter. Work assignments on this island required that employees remain on the island during off-duty hours. While employees worked on the island, the employer provided food and ice. However, the claimant, who suffers from diabetes, had been advised by his doctor to eat fish whenever possible. One day after work, while wearing “flip-flop style sandals,” the claimant went fishing on the reef on the island for his dinner. He slipped and cut his right foot on the coral. After a few days, the cut required significant medical attention, and a claim resulted. The Board affirmed the ALJ’s determination that “claimant’s presence on Gagan Island for four days was due solely to the fact that the obligations and conditions of his employment required it; he could not have been there otherwise, as access to the island was restricted and claimant could leave the island only by utilizing the transportation provided by employer. Thus, contrary to employer’s argument, the fact that claimant was working in his home country is not dispositive of the zone of special danger inquiry in this case as claimant’s presence at the particular place of his injury, Gagan Island, was due solely to the obligations and conditions of his employment.” Jetnil v. Chugach Management Services, BRB No. 14-0361 (7/21/15) An employee benefit plan may recover attorney’s fees incurred in obtaining reimbursement for medical benefits paid to a claimant.
In a recent case decided by the Board, the ILWU-PMA Welfare Plan (the “Plan”) provided a claimant with medical and disability benefits during the pendency of his disputed claim. The Plan intervened in the administrative proceedings seeking reimbursement of medical benefits provided to the claimant and to assert a lien on compensation benefits paid to the claimant, as provided for in Section 17 of the Act. Section 17 gives a trust fund established pursuant to a collective bargaining agreement a lien, payable by the claimant, for disability benefits paid to a claimant. After a formal hearing, the ALJ awarded the claimant benefits and recognized the Plan’s lien, and found that the Plan was entitled to reimbursement for medical benefits paid. The Plan then sought an attorney’s fee from the employer for the work performed by its attorney in asserting the lien and reimbursement right. The ALJ awarded the fees requested by the Plan. On appeal from this award, the Board explained that the Ninth Circuit, in which this case arose, has held that an employer may be liable for attorneys’ fees for health care providers seeking reimbursement of medical benefits provided to a claimant. The Ninth Circuit found such providers are “persons seeking benefits” as required by Section 28(a) of the Act. However, the Board faced an undecided question because the Plan was an insurance provider, as opposed to a medical provider. The Board relied upon established law holding that an insurer seeking reimbursement for medical benefits provided to a claimant has a right to intervene in administrative proceedings, because its claim is derived from the same nucleus of operative facts as the claimant’s claim for compensation. The Board said that the “combination of the Plan’s right to intervene and its derivative right to reimbursement for claimant’s covered medical benefits” gives the Plan the requisite interest to be a “person seeking benefits” under Section 28(a). Therefore, the Plan was entitled to reasonable attorneys’ fees for time spent recovering a claimant’s medical benefits to the extent the benefits are owed to the insurer as reimbursement of covered medical expenses. However, the Board held that the Plan cannot recover attorney’s fees for time spent enforcing its lien under Section 17. Under Section 17, the claimant has the obligation to repay the trust fund, here the Plan, out of compensation received, for disability benefits paid to the claimant by the trust fund. Therefore, the Board held, a Section 17 trust fund does not pursue benefits on behalf of a claimant, and therefore is not a “person seeking benefits” as required by Section 28(a). Therefore, “the employer cannot be held liable for the attorney’s fees incurred in validating its lien against the claimant’s disability benefits.” Despite this holding, the Board nevertheless agreed with the ALJ and awarded the Plan fees incurred advancing its reimbursement for medical expenses and in recovering its lien. The Board approved the ALJ’s determination that the “Plan’s efforts to establish that employer is liable for claimant’s medical benefits were inextricably intertwined with its efforts to show the compensability of the claim.” The ALJ further found that “[s]eparating the efforts to show [employer] was liable for the medical care from the efforts to create the fund on which [the Plan] had its lien would not only be difficult, the effort required would be disproportionate to the result.” Grierson v. Marine Terminals Corp., BRB No. 14-0314 (5/19/15) The Office of Administrative Law Judges adopted new Rules of Procedure effective June 18, 2015. The OALJ published certain corrections to the new rule on July 1, 2015, and the text of the new rules, with corrections, may be found here. According to the OALJ, the "revisions make the regulations more accessible and useful to parties. The revisions also harmonize administrative hearing procedures with the current FRCP and with the types of claims now heard by OALJ, which increasingly involve whistleblower and other workplace retaliation claims, in addition to a longstanding caseload of occupational disease and injury claims."
A fixed oil and gas production platform in state waters may be a covered situs under the Longshore Act, if it is used in loading and unloading vessels.
The Benefits Review Board recently considered a case involving a fixed production platform in Black Bay, which sits in Louisiana territorial waters of the Gulf of Mexico. The claimant worked as an offshore warehouseman on the Black Bay “Central Facility.” The Central Facility included living quarters for workers who maintained other platforms in the field. The claimant, however, remained on the Central Facility throughout his work shift. The platform had a warehouse and three cranes for loading and unloading vessels. The platform received deliveries of most equipment by boat, including pipes, valves, potable water and other equipment. When any of the satellite platforms needed supplies, the supplies were shipped from the Central Facility by boat. It was undisputed that loading and unloading vessels was a large part of the claimant’s job, and that he performed those tasks on a daily basis. The claimant suffered an injury while unloading a vessel. He was standing in front of the warehouse and was injured by equipment that had just been unloaded by a crane. The Administrative Law Judge found that the claimant’s injury did not occur on a covered situs because the Central Facility is not an “other adjoining area” under the Act. He determined that the Central Facility was used to further drilling for oil and gas, which is not a maritime purpose. The ALJ further noted that the platform was not used to ship oil to or from vessels; the oil instead was shipped from the platform through pipelines. The Board began its analysis noting that a fixed platform is considered an “artificial island” and not navigable waters, citing Herb’s Welding v. Gray, 470 U.S. 414 (1985). As a result, to qualify as a covered situs, the Central Facility had to be an “other adjoining area customarily used by an employer” in loading or unloading a vessel . Citing the U.S. Fifth Circuit’s decision in New Orleans Depot Services, Inc. v. Director, OWCP, 718 F.3d 384 (5th Cir. 2013), the Board explained that an “adjoining” area for purposes of situs must satisfy two components: (1) the geographical component, i.e., it adjoins navigable waters, and (2) a functional component requiring that an employer customarily use the area in loading or unloading vessels. According to the Board, the parties agreed that the geographical component was met. Therefore, it focused its analysis on whether the Central Facility was customarily used for loading and unloading vessels, with the Board instructing that the area need not be used exclusively for maritime purposes. The Board found that the Central Facility was customarily used for loading and unloading as required by the Act. The “uncontroverted evidence in this case reflects that the Central Facility, in essence, functioned as an offshore dock and a collection and distribution facility used to unload and store supplies and equipment delivered from the mainland by vessels and to load materials onto other vessels for delivery to the satellite oil and gas production platforms.” The Board distinguished the Central Facility from the platform in the Fifth Circuit’s decision in Thibodeaux v. Grasso Prod. Management Inc., 370 F.3d 486 (5th Cir. 2004), which was only occasionally used in loading and unloading supplies. More importantly, the Board explained that the fact that only oil and gas related equipment was loaded and unloaded at the Central Facility “does not divest the platform of a maritime purpose.” Instead, the Board focused on the fact that the facility was used in loading or unloading vessels. The Board explained that “the nature of the cargo that was loaded and unloaded is not determinative of the situs inquiry.” The mere fact that the Central Facility was customarily used in loading and unloading vessels gave the platform its maritime nature, and any further search for an independent connection to maritime commerce was unnecessary. Malta v. Wood Group Prod. Servs., BRB No. 14-0312 (5/29/15). Parties in proceedings before the District Directors may now receive service of orders by email. Under Section 19(e) of the Act, parties are entitled to service of compensation orders by certified or registered mail. On June 12, 2015, the Department announced that parties may waive their right to certified mail notice of orders and opt instead to receive notice of orders by email. A copy of the industry notice explaining this process may be read here. To sign up to waive certified mail service and receive orders by email, parties must complete, sign and file one of two new forms, an LS-801 (for employers and carriers) or LS-802 (for claimant's or their representatives. The Department's regulations were revised, at 20 C.F.R. § 702.349, to accommodate this new practice.
The Benefits Review Board has announced a new standard for resolving Section 49 discrimination cases. According to the Board, the claimant bears the burden of proving a Section 49 claim by a preponderance of the evidence, as required by Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994).
Section 49 prohibits an employer from discriminating against an employee because the employee filed a compensation claim. To establish a prima facie case of discrimination, a claimant must show that the employer committed a discriminatory act motivated by discriminatory animus or intent. In Geddes v. Benefits Review Board [Geddes I], 735 F.2d 1412 (D.C. Cir. 1984), the District of Columbia Circuit had held that under Section 49, if a claimant demonstrates that the employer committed a discriminatory act motivated by animus, a rebuttable presumption arises that the animus is due to the claimant’s compensation claim. The court further held that the burden then shifts to the employer to prove that it did not discriminate against the claimant because of the filing of a claim. The D.C. Circuit also explained that the claimant ultimately has a “light burden” of proof, meaning that he “is not required to prove his case by a preponderance of the evidence." The Board now determined that this analysis is inappropriate after Greenwich Colleries. Accordingly, the Board held that: "1. A claimant’s initial burden is to make out a prima facie case of discrimination under Section 49. That is, he must 'produce enough evidence to permit the trier of fact to infer' that the employer committed a discriminatory act motivated by discriminatory animus. If the claimant makes out a prima facie case, he is entitled to a rebuttable presumption that his employer violated Section 49 of the Act. "2. An employer’s burden on rebuttal is one of production only, that is, it must produce substantial evidence that it acted for non-discriminatory reasons. If the employer produces such substantial evidence, the presumption falls from the case. "3. The claimant, who bears the ultimate burden of persuasion, then must prove by a preponderance of the evidence that his employer committed a discriminatory act against him motivated by his claim for compensation under the Act, i.e., that the action was taken because of the claimant’s protected activity." (citations omitted.) Babick v. Todd Pacific Shipyards Corp., BRB No. 14-0177 (3/30/15) The Board recently confirmed that a claimant who has joined multiple potentially responsible employers in a claim may settle with a single employer. The claimant filed claims for back injuries occurring on May 21, 2010 and August 18, 2013, with the latter asserted as a cumulative injury claim. All the employers the claimant worked for between these dates were joined in the proceeding. At one point, the claimant settled with a single employer, Total Terminals International ("TTI"). The administrative law judge disapproved of the settlement, finding it “'deficient in that it does not include the signatures of all parties,' i.e., all the potentially liable employers." The Board vacated this order and confirmed that "[a]lthough several potentially liable employers have been joined in the proceeding, . . . any potentially liable employer may opt to settle separately with claimant." The Board determined that as "the proposed settlement agreement involves only claimant’s claim against TTI, and does not affect the rights or obligations of any other potentially liable employer, claimant and TTI are the only parties who must sign the application in this case." The Board added, however, that the employer ultimately responsible for the claimant's injury is not entitled to a credit for these settlements. See Alexander v. Director, OWCP, 297 F.3d 805 (9th Cir. 2002) and New Orleans Stevedores v. Ibos, 317 F.3d 480 (5th Cir. 2003).
Stovall v. Total Terminals International, LLC, BRB Nos. 14-0266 and 14-0266A (2/27/15) |
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