This is Part 4 of the Longshore Insider blog series examining the circumstances surrounding unique cases decided during 2022.
This is a very interesting, published decision from the Benefits Review Board (BRB). It involves a Defense Base Act (DBA) claim, but the primary issue is not peculiar to the DBA. In fact, it is central to every claim filed under the LHWCA and extensions.
Procedural history: The BRB granted reconsideration en banc of its decision in BRB No. 20-0279 dated May 25, 2021. In that decision, the BRB had affirmed an Administrative Law Judge's (ALJ) denial of benefits based on the ALJ's determination that the claimant had failed to establish her prima facie case. The denial was based on the ALJ's assessment of the claimant's credibility. That denial has now been reversed.
The claimant had filed a claim for a psychological injury caused by her work in Afghanistan. The ALJ found that the claimant did not establish a psychological harm and thus did not establish her prima facie case necessary to invoke the Section 20(a) (33 U.S.C. 920(a)) presumption of causation. The ALJ had weighed the claimant's credibility in determining whether she established her prima facie case.
Note: In order to establish a prima facie case, a claimant must show that she suffered a harm and that either a work accident or working conditions existed that could have caused or contributed to the harm. On reconsideration, the BRB has now reversed the denial of benefits in a lengthy and comprehensive decision which reviews burdens of proof at the various stages of the claims process. Central to the discussion is the question of whether the claimant's credibility can be permissibly considered at the initial, prima facie stage.
In its decision, the BRB conducted a review of prior circuit court and BRB decisions dealing with the issues of which parties bear what burden of proof at the different stages of the claims process and what type of evidence satisfies the different burdens. In the process, the BRB acknowledged language in several prior BRB decisions, indicating that the claimant bears some form of burden of persuasion at the initial invocation of the prima facie case. Those prior inconsistencies are overruled and eliminated in the present decision. The decision includes a majority opinion, a concurring and dissenting opinion, and a dissenting opinion.
I'll summarize the findings, but it's certainly worthwhile to read the entire opinion.
The claimant bears the initial burden to establish a prima facie case. This is a burden of "production" only, as opposed to a burden of "persuasion." It is a light burden and does not include an assessment of credibility. It merely requires the production of "some evidence" that goes beyond the mere assertion of filing a claim. The successful invocation of the prima facie case gives rise to the section 20(a) presumption of causation in the claimant's favor.
The presumption shifts the burden of proof to the employer. The employer now has the same burden of "production" of "substantial evidence" (more than a scintilla) in order to rebut the presumption. Again, there is no burden of persuasion at this point. The employer must merely produce evidence that, if it were to be substantiated, throws factual doubt on the claimant's evidence.
If the section 20(a) presumption is rebutted by the employer, then it drops from the case, and the claimant bears the ultimate burden of "persuasion" to prove that the injury is work-related and is compensable by a preponderance of the evidence. This is where credibility is weighed.
Note: The BRB recognizes that in the federal Fifth Circuit Court of Appeals (states of TX, LA, MS) a credibility determination may play a role at the prima facie stage.
Barring unexpected determinations at the federal Circuit Courts of Appeal, I think that we can consider this issue resolved.
This DBA case considers under what circumstances the DBA, an extension of the LHWCA that generally covers work on overseas U.S. military bases and public works government contracts outside of the continental U.S. may apply to an injury that occurred in the U.S.
The claimant was a flight attendant working for an employer with a large charter flight contract with the Department of Defense (DOD). She was injured in an auto accident while driving back home in Texas from a mandatory drug test. This occurred on a "reserve day" on which she was required to be on call and available for work. During her employment, she had worked on 83 flights under the DOD contract, of which 44 had been international. She had no upcoming flight scheduled on the day of the injury.
The Administrative Law Judge, as affirmed by the Benefits Review Board, found that the DBA covered her injury. The ALJ found that her next assignment most likely would be an international flight pursuant to the "public work" contract her employer had with the DOD, and that the mandatory drug test was in the course of her employment under that contract. On appeal, the court reversed the finding of DBA coverage. Briefly, the court found that the employer's DOD contract was not a contract only for overseas flights; it included both domestic and overseas charters. It was only speculation that her next assignment would be an overseas flight, and she had no flight, international or otherwise, scheduled on the day of injury. So, the employer's contract with the DOD was not a "public works" contract, as that term is used in the DBA. It covered many charter flights, both domestic and international. The drug test was required under the overall contract and not an overseas flight.
Note: The question is not decided whether DBA coverage would have applied if the employer's contract was only for overseas flights or if the claimant had been preparing for an upcoming, scheduled overseas flight.
These highlighted cases provide further insight into the decision-making process surrounding workers' compensation claims and the Longshore Act.