This is Part 3 of the Longshore Insider blog series examining the circumstances surrounding unique cases decided during 2022.
Michael D. Cadrecha v. Ben M. Radcliff Construction, Inc. and American Interstate Insurance Company; Director, Office of Workers' Compensation Programs, BRB No. 22-0296, November 23, 2022
The claimant appealed a US Department of Labor's District Director's (DD) Order denying the claimant's request to withdraw his claim for compensation.
The claimant was employed by an uninsured subcontractor (although the purported identity of the employer and general contractor changed during the adjudication process) when he suffered a serious fall injury. He filed a civil tort suit in state court based on section 5(a) 's (33 USC 905(a)) election of remedy provision in cases where the employer is uninsured. He also filed a claim for compensation under the LHWCA.
Note: The statute has no provision governing the withdrawal of a claim. Withdrawals are authorized in the Regulations at 20 CFR 702.225 if the request is made for a "proper purpose" and is in the claimant's "best interest."
The claimant wanted to withdraw his compensation claim under the LHWCA so that he could pursue his negligence lawsuit. The DD denied the withdrawal request because 1) the claim was covered under the LHWCA, and 2) under section 4(a), if the subcontractor fails to properly insure, the general contractor is responsible for the claim.
On appeal, the BRB vacated the DD's Order and remanded the case. It noted that the DD failed to analyze the regulatory "proper purpose" standard but that in the past, the BRB has held that choosing to pursue a tort claim against the employer under section 5(a) is a "proper purpose" to support a withdrawal request so the DD was reversed on that point. The BRB also found that the DD failed to consider the appropriate factors under the claimant's "best interest" requirement, such as likelihood of success in the tort suit and the potential recovery, which would have to be considered on remand. On remand, the DD must also consider whether the proper parties have been joined.
Marvin Siver (o/b/o Estate of Ruth Siver v. Kaiser Aluminum & Chemical Corp. and Allianz Resolution Management o/b/o Fireman's Fund Insurance Company and Kaiser Steel Resources, Inc. and Hartford Accident & Indemnity Co. and California Insurance Guarantee Association o/b/o/ Industrial Indemnity; D, OWCP, BRB No. 21-0426, November 7, 2022
This is another recent series of West Coast cases involving section 33(g).
Note: Section 33(a) provides that an injured worker (or other person entitled to compensation such as a widow (PETC)) (or his or her representative) may proceed in tort against a third party if he believes that the third party may be liable for damages for negligently causing the workplace injury.
Section 33(f) gives the employer the right to offset the net recovery by the employee in the third-party lawsuit against the employer's compensation liability.
Section 33(g) protects the employer's interests.
If the PETC (or representative) enters into a settlement, he or she must either (1) obtain the prior written approval of the settlement from both the employer and the insurance carrier if the settlement is for an amount less than the employer's compensation liability, or (2) give written notice to the employer of any settlement or judgment in the third-party lawsuit in the injured worker's favor regardless of the amount of the recovery.
In this case, the widow purportedly signed disclaimers renouncing any interest in third-party asbestos lawsuits filed by the representative of the deceased's estate. These disclaimers were not published, presented to anyone, or filed anywhere. No written approval of the settlements was obtained from the employer/carrier, nor was notice given. The ALJ granted Summary Decision in favor of the employer under section 33(g), barring the widow's claim for benefits under the Act since she had entered into and was bound by the settlements. The BRB affirmed.
There's no sense in getting too deep into this case at this stage. This is most likely not the last word. In two prior cases involving widows, section 33(g), and disclaimers (Hale and Verducci), the Ninth Circuit reversed the BRB's decisions barring claims under the Act. The difference in this case, in the opinion of the BRB, was that the representative of the heirs, including the widow, had power of attorney from the widow, providing clear evidence that he acted on behalf of the widow in entering into the settlements. Thus, the widow had both "entered into" and was "bound by" the settlements. We'll continue to follow this case for further developments.
William Ross v. MTC East/Ports America and Ports Insurance Company; D, OWCP, BRB N0. 21-0559, September 30, 2022
This is another case involving the issue of Suitable Alternate Employment (SAE).
The claimant longshoreman suffered head and neck injuries, and he made a prima facie case for total disability in that he could not return to his former job. The ALJ found that the employer established the existence of SAE in the form of four jobs (receptionist, cashier, car transporter, and porter) as well as several lighter-duty jobs on the waterfront. The employer's vocational rehabilitation expert (VRE) testified that she had spoken with employers, who confirmed that the jobs were available and that on-the-job training would be provided. The ALJ also found that the claimant had not engaged in a diligent job search (he had not applied for any of the jobs, nor did he seek any of the less strenuous jobs on the waterfront).
On appeal to the BRB, the employer encountered the BRB's interpretation of the so-called Turner test, which we have seen before.
Note: The two-part test: 1) considering the claimant's age, background, etc., what can the claimant physically and mentally do following the injury, that is, what types of jobs is he capable of performing or capable of being trained to do, and 2) within this category of jobs that the claimant is reasonably capable of performing are there jobs reasonably available in the community for which the claimant can compete and which he could realistically secure.
At the urging of the Director, the BRB found that the ALJ had not adequately analyzed part two of the Turner test. In fact, the ALJ had found that the identified jobs were reasonably available and that there may be many jobs like them reasonably available that the claimant would likely secure had he diligently sought one. The ALJ credited the vocational expert's testimony that she had spoken with employers, that the jobs were available, and that training would be provided. Nevertheless, the BRB adopted the Director's argument that a proper analysis under part two of the Turner test would explain how the claimant's age, experience, literary status, and limited education would make him a competitive applicant for the identified jobs and that he would realistically obtain them.
On remand, if the ALJ finds (again) that the employer has met its burden (this time using the Director's preferred formulation), he may reinstate his finding that the claimant did not diligently search for employment, as that finding is supported by substantial evidence. Since this does not necessarily rule out an award of permanent partial disability, the ALJ must make findings with regard to a loss of wage-earning capacity.
Steven Franke v. Force Protection, Inc. and Allied World National Assurance Company, BRB No. 21-0622, December 8, 2022
This DBA case involved a modification request by the employer under section 922 based on a change in condition. The claimant had been adjudicated as permanently and totally disabled following a back injury in Kuwait. Briefly, and to show that it's not impossible, the employer was successful. The ALJ found that the claimant's condition had changed to permanent and partial disability, based largely on the acceptance of suitable alternate employment established by the employer.
The BRB affirmed, finding that the claimant had the requisite skills and underlying experience to perform four of the jobs presented by the employer. In the process, the BRB also found that jobs requiring licensing are not speculative or unsuitable as a matter of law. One difference in this case from many other cases where SAE is an issue is that the claimant had more favorable vocational factors than you usually see in Longshore Act claimants.