2015, Part II - Benefits Review Board

2015, Part II - 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 AEU's Longshore Insider.
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