This blog will cover some of the interesting cases decided during the calendar year 2022. Let’s start with the US Department of Labor’s (DOL) Benefits Review Board (BRB) and the Defense Base Act (DBA).
Tony Barhorst v. Combat Support Association, Ltd. and Insurance Company of the State of Pennsylvania; Director, Office of Workers’ Compensation Programs, US Department of Labor, BRB No. 21-0180, April 27, 2022
The claimant was working as a carpenter in Kuwait when he was injured in a motor vehicle accident only three weeks into his one-year government contract. The issues of interest to me in the case involve the calculation of the claimant’s Average Weekly Wage (AWW) and the question of Suitable Alternate Employment (SAE).
The claimant presented a prima facie case that he could not return to his former employment due to the injury; thus he was totally disabled. At that point, the burden of proof shifted to the employer to convert total disability to partial by establishing SAE, that is, 1) considering the claimant’s age, education, background, and other vocational factors, what type of jobs can he perform or be capable of being trained for, and 2) which of the jobs are reasonably available in his community that he could realistically secure following a diligent job search.
Note: This is a paraphrase of the test set out in New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031 (5th Cir. 1981), which applied to this case arising in the jurisdiction of the federal 11th Circuit Court of Appeals since 5th Circuit decisions dated prior to 10/01/1981 are binding precedent in the 11th Circuit in the absence of intervening 11th Circuit authority. Remember Turner. We’ll see this again in subsequent cases.
The employer presented four customer service-type jobs requiring no particular qualifications (for example, taking reservations for Disney World), which it argued constituted SAE The DOL’s Administrative Law Judge (ALJ) found that the employer’s vocational experts did not persuasively explain how the claimant’s employment history in heavy unskilled manual labor with no computer or office experience provided him with the transferable skills required for the customer service jobs. This was affirmed by the Benefits Review Board (BRB). So, the employer lost on the issue of SAE
Regarding the calculation of the claimant’s AWW, the employer argued that using only the claimant’s overseas earnings for the three weeks for which he worked would result in an excessively high AWW, that the ALJ should use the period of one year prior to the injury (the claimant was not working prior to going to Kuwait), and that the calculation should not include the Foreign Area Living Allowance (FALA) added to the claimant’s contract salary. The employer lost on each argument.
The BRB affirmed the ALJ’s findings under section 10(c) (33 USC. 910(c)), which gives the ALJ broad discretion in arriving at a reasonable AWW He found that the contract established that the claimant intended to work for one year and that his expected earnings represented his wage-earning capacity at the time of the injury. The BRB also affirmed the inclusion of the FALA payments in the calculation of the AWW as they were readily calculable payments made directly to the claimant.
Archie Butcher v. Service Employers International, Inc. and Insurance Company of the State of Pennsylvania; D, OWCP, BRB No.21-0025, August 29, 2022
This case involved the DBA’s Zone of Special Danger doctrine (Zone), and the remarkable thing about it is that the claimant managed to find his way out of the Zone. He worked in Iraq and was seriously injured while on R&R in Thailand, as a result of what appears to have been a moped accident (the claimant had no recollection of the accident).
His choices of whether and where to go on R&R were voluntary, he had no work-related duties while on R&R, and he paid his own way. The issue was whether this voluntary recreational activity, occurring as the ALJ found 5,000 miles from his work location, was covered by the DBA under the Zone of Special Danger doctrine. This inaptly named doctrine has been discussed several times at the Longshore Insider. Very briefly, it provides coverage if the injury results from “one of the risks of the employment, an incident of the service, foreseeable if not foreseen” (O’Leary v. Brown-Pacific-Maxon, Inc., 340 US 504 (1951)). It applies when injuries occur “within the zone created by the obligations and conditions of the employment.” There are limits: “… there is a pale of cognoscibility, however, which stops short of astonishing risks ‘unreasonably’ removed from employment.” (R.F. (Fear) v. C.S.A., Ltd., 43 BRBS 139 (2009)). Clear?
The BRB affirmed the ALJ’s denial of coverage. It found that “… to impose coverage under such circumstances would make Employer an insurer of Claimant’s health and well-being twenty-four hours a day, seven days a week regardless of his whereabouts.” The injury did not arise within the “conditions or obligations” of employment. There was a dissenting opinion. It would have applied conventional Zone of Special Danger analysis to find coverage. It raised the question as to whether the BRB was introducing a geographic or distance limit in Zone cases. I don’t think so, as this case stands on its own, but it’s an interesting question.
Bassim Albonajim v. AECOM and Ace American Insurance Co.; D, OWCP, BRB No. 21-0495, September 30, 2022
The claimant worked as a translator in Iraq from October 2010 until August 2011, after which he returned to the US, where he worked continuously at full-time employment. He was diagnosed with Post Traumatic Stress Disorder (PTSD) in July 2020 based on his brief overseas employment nine years previously. He filed a claim for benefits under the DBA on August 18, 2020.
The ALJ granted Summary Decision for the claimant, finding that his condition was related to the 11 month employment which had ended nine years previously, and he found that the claim was timely filed since the claimant first became “aware” of his condition based on the July 1, 2020, PTSD diagnosis. The ALJ denied disability benefits, however, applying section 10(i) and finding that the claimant did not suffer a loss of wage-earning capacity. Section 10(i) provides that the AWW on the date of injury should be used, and the claimant was working. The ALJ did award medical benefits, which are never time-barred.
Section 10 states, “… the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation ….” Section 10(i) states, “For purposes of this section with respect to a claim for compensation for death or disability due to an occupational disease …, the time of injury shall be deemed the date on which the claimant or employee becomes aware… of the relationship between the employment, the disease and the death or disability”.
The BRB’s decision on appeal is interesting for the way in which they got around the inconvenient language of section 10(i) and found a way to award benefits based on his earnings from 10 years prior to the date of injury. The BRB found that while section 10(i) does specify that the date of injury in occupational disease (O.D.) cases (such as PTSD) is the date of awareness (here 07/2020) and that section 10 provides that, “… the average weekly wage of the injured employee at the time of the injury (emphasis added) shall be taken as the basis upon which to compute compensation …”, the BRB adopted the argument of the Director that the language in section 10(i) would produce an “untenable” result in this case and rationalized that section 10(i) does not specifically, expressly, in so many words, require that the AWW on the date of awareness in O.D. cases of “delayed onset PTSD” must be used. From there, it was clear sailing. The claimant was no longer employable overseas (of course, the chances are remote that he would ever consider making the choice to go back to a war zone); thus he was deprived of his economic choice to return to overseas employment. This far-fetched, fictional loss of choice constitutes a loss of wage-earning capacity for which the claimant is entitled to be compensated. Having reasoned section 10(i) out of the case (if not completely out of the Act), it was a simple matter for the BRB to decide to remand the case back to the ALJ with instructions to use section 10(c) to ascertain the AWW, presumably based on the 10-year-old overseas, war-zone earnings.
Note: In some federal circuits, appeals from BRB decisions go to the federal circuit courts of appeals as established in the 1972 Amendments to the Act. In other federal circuits, these appeals go to federal district court. By my count, DBA appeals go to federal district court in the 4th, 5th, 6th, and 11th Circuits. Appeals go to the Circuit Court of Appeals in the 7th and 9th Circuits. The remaining circuits have not ruled on the issue.
The US Supreme Court recently had an opportunity to resolve this circuit court jurisdictional conflict, but it declined to review the case of Carswell v. E. Pihl & Sons, 999 F.3d 18 (3d Cir.) 05/27/2021.
In Part Two, I’ll discuss non-DBA BRB cases. Look for that Longshore Insider blog to publish in February 2023.