Burden of Proof

Burden of Proof
How is the winner determined when a controverted Longshore case goes to a formal hearing at the Office of Administrative Law Judges?

The ALJ considers all of the testimony and all of the documentary evidence, medical and otherwise, for credibility, weight, and relevance, and the prevailing party is the one that meets its “burden of proof”.

Although the claimant has the overall burden of proof by persuasion by a preponderance of the evidence, the Longshore Act uses a burden shifting framework at different points during the adjudicatory process.

I’ll look at a few examples of how the burden of proof shifts from one party to the other and what this means for the outcome of the case.

Section 20(a)
The initial burden of proof in a Longshore claim is on the claimant.  He must establish his prima facie case.  He must demonstrate the existence of an injury or harm and that a work related accident occurred or working conditions existed which could have caused the harm.  This is a light burden.  In most cases, the claimant can establish his prima facie case simply by testifying that he had pain or an illness at work even if it is not supported by witnesses or medical evidence.

Once the claimant meets this initial burden of proof a rebuttable presumption arises in the case in favor of the claimant under section 20(a) that the harm or pain is work related.

At this point, the burden of proof shifts to the employer on the issue of causation by virtue of the fact that the claimant has established his prima facie case and has the benefit of the application of the section 20(a) presumption.  The employer’s burden to rebut the presumption is one of “production” rather than “persuasion”.  The employer must produce “substantial evidence” that, IF believed (credibility or persuasion is not involved at this stage) would show that the harm or pain is not work related.

Note:  Substantial evidence is that relevant evidence that is more than a scintilla but less than a preponderance – that would cause a reasonable person to accept the fact finding.

If the employer meets its burden of proof and produces substantial evidence to rebut the presumption, then the presumption drops from the case and the burden of proof shifts back to the claimant to prove or persuade on the issue of causation by a preponderance of the evidence based on the record as a whole.

So we see at the threshold issue of whether or not the injury was work related, that the burden of proof on the claimant to establish the prima facie case shifts to the employer to rebut the section 20(a) presumption and then shifts back to the claimant to prevail on this issue by a preponderance of evidence.

Section 49
Section 49 of the Longshore Act (33 U.S.C. 948(a)) prohibits an employer from discriminating against an employee because the employee has claimed compensation under the Act.  The initial burden of proof is on the claimant to establish a prima facie case of discrimination.  To do this, a claimant must demonstrate that his employer committed a discriminatory act motivated by discriminatory intent.  He must produce enough evidence to permit the trier of fact to infer that the employer had discriminatory intent.

For example, a claimant could show that he was singled out for discipline or fired immediately after filing a claim.

Once the prima facie case of discrimination is established the burden of proof shifts to the employer to show that there was no discriminatory intent, i.e., any discipline imposed was not due to the filing of a compensation claim.

Once the employer produces evidence of lack of discriminatory intent the burden shifts back to the claimant to persuade by a preponderance of the evidence that there was discriminatory intent.

So once again the initial burden of proof is on the claimant, then it shifts to the employer, then it shifts back to the claimant.

Last Responsible Employer – Multi Employer Occupational Disease Case
The employer responsible for paying benefits under the Longshore Act in an occupational disease (OD) case is the last covered employer to expose the employee to injurious stimuli prior to the date that he becomes aware that he is suffering from an occupational disease arising out of employment.  How are the burdens of proof distributed when there are multiple potentially liable employers involved as defendants?

I’ll discuss the approach taken by the federal Ninth Circuit Court of Appeals, which frequently sees this type of case.

First, the claimant must establish a prima facie case against each employer named as a defendant in order to keep the employer in the case.  As we’ve seen, once this initial burden of satisfying the prima facie case is met with regard to an employer, the section 20(a) presumption applies to shift the burden of proof to the employer to rebut the presumption by producing substantial evidence to the contrary.  If the presumption is rebutted it drops from the case and the claimant has the burden of proving his case by a preponderance of the evidence.

But there are multiple employers potentially liable, and only the last employer to expose the worker to injurious stimuli in sufficient degree to cause or aggravate the disease will be liable for all benefits.

At this point, each employer has the burden of establishing that it is not the last responsible employer.  It must prove either, 1) that exposure to injurious stimuli did not occur at its worksite, or 2) that the employee performed work covered by the Longshore Act for a subsequent employer where he was exposed.  The adjudicator will decide these questions sequentially for each employer starting with the last and going back in reverse order until he finds the last responsible employer.

Note:  In a multi employer cumulative trauma case the approach is somewhat different.  Instead of the sequential last to first analysis used in OD cases there is more of a simultaneous analysis in cumulative trauma cases due to the natural progression/aggravation/multiple employer nature of the case which requires concurrent review of all of the medical evidence.

Note:  There is a particular situation which arises at the outset of the formal hearing process.  After the parties have submitted their pleadings, briefs, and evidence, either party may request that the ALJ issue a Summary Decision, either with respect to a single issue or on the case as a whole.

The burden of proof is on the party bringing the request, or motion.  The ALJ will review the evidence in the light most favorable to the non-moving party opposing the motion.  If the ALJ finds that there is no material issue of fact raised by the evidence and that the non-moving party cannot win as a matter of law, then he will grant the request for Summary Decision.

Note:  “material” as applied to a question of fact means of such nature that proof of the fact would establish or refute an essential element of the claim or a defense.

Note:  Mere allegations or denials will not be sufficient to successfully oppose a motion for summary decision.  The opposing party must set forth specific facts which establish a genuine issue of fact for trial.

There are many other instances where the Longshore Act shifts the burden of proof during the adjudicatory process, whether to rebut a presumption by producing substantial evidence or to persuade by a preponderance of the evidence.  The “winning” party successfully meets its burden of proof.
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About the Author

Jack Martone joined The American Equity Underwriters, Inc. in 2006, where he serves as Senior Vice President, AEU Advisory Services. Prior to AEU, Jack served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers' Compensation for the U.S. Department of Labor. As Branch Chief, Jack directed the licensing and regulation of insurance carriers and self-insured employers under the Longshore and Harbor Workers’ Compensation Act. Jack received his bachelor’s degree from Fordham University and his Juris Doctorate from St. John’s University School of Law.

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