Calendar Year 2015, Part III

Calendar Year 2015, Part III
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.


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.
Need Longshore Coverage? Click Here