This Longshore Insider blog reviews interesting cases decided during calendar year 2023 relevant to the Longshore and Harbor Workers’ Compensation Act (Longshore Act) (33 U.S.C. 901 et seq.). The U.S. Department of Labor’s Benefits Review Board (BRB) and the federal courts decided the cases discussed in this blog. In this blog, I will only cite the cases and highlight the one issue I found most interesting from each.
Maxine Pelker v. Owens Corning Fiberglass and Travelers Property Casualty Company of America; Columbia J & S a/k/a Columbia Asbestos; E.J. Bartells Company and SAIF Corp.; Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, BRB Nos. 22-0017, 22-0017A (01/27/23)
This case involves the issue of “constructive approval” under section 933(g) of the Longshore Act.
Note: 33 U.S.C. Section 933(g) provides that, “If the person entitled to compensation enters into a settlement with a third person … for an amount less than the compensation to which the person would be entitled under this Act, the employer shall be liable for compensation … only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed ….”
In this case, the Administrative Law Judge (ALJ) found that the widow was entitled to death benefits but was barred by section 933(g). The widow raised the issue of “constructive approval” to excuse the failure to obtain the employer/carrier’s written approval of third-party settlements. The theory was that the employer/carrier’s full knowledge of and even participation in the third-party litigation and settlements satisfied the requirements of section 933(g) without needing the “merely ministerial” requirement of written approval. Based on the plain language of the statute requiring written approval, the BRB affirmed the denial of benefits.
Randall E. Hood v. Reefer Express, L.L.C. and Signal Mutual Indemnity Association, BRB No. 21-0245, (01/31/2023)
This is one of several cases in which the BRB ruled that an ALJ erred by assessing the claimant’s credibility at the initial stage of determining whether the claimant met the burden of establishing his prima facie case.
Note: In Talisha K. Rose v. Vectrus Systems Corp. and Insurance Company of the State of Pennsylvania; Director, OWCP, BRB No. 20-0379 (12/29/2022), the BRB, in an en banc decision, considered the question of what the claimant’s burden of proof is in establishing a prima facie case in order to invoke the Section 920(a) presumption. The BRB held that the claimant’s burden at this stage is one of production only rather than persuasion, which precludes credibility determinations.
Note: The BRB acknowledged that the issue may be treated differently in cases arising in the federal Fifth Circuit.
Omas Multhimo Villanueva Zuniga v. Triple Canopy, Inc. and Continental Insurance Company; Director, OWCP, BRB No. 21-0629 (02/08/2023)
This is a delayed filed claim arising under the Defense Base Act.
The claimant worked as a security guard in Iraq from October 2005 to November 2006. He was diagnosed by his doctor with Post Traumatic Stress Disorder (PTSD) in October 2019, and he then filed a claim for disability benefits based on PTSD and for hearing loss.
The ALJ found that the claim for PTSD was untimely filed, but he proceeded in his decision to consider the full record and to deny the claim based on the preponderance of the evidence standard. The BRB, of course, reversed the ALJ’s finding on timeliness since, in its opinion, the ALJ did not adequately consider the claimant’s “awareness” of the effect of the claimed injury on his earning power. The BRB did, however, find that this was a harmless error and affirmed the denial of PTSD benefits since the ALJ had fully considered the merits of the claim.
As for the hearing loss claim, the BRB found that the ALJ impermissibly considered credibility in denying the section 920(a) presumption at the prima facie stage, so the case was remanded for consideration of the hearing loss claim.
Charlie C. Parker v. J.A.Z. Industries of Florida, L.L.C. and Signal Mutual Indemnity Association, BRB No. 21-0632 (02/21/2023)
This case involved the issue of Suitable Alternate Employment (S.A.E.) for a reefer mechanic who had injured his back and sought benefits for Permanent Total Disability. The employer brought the claimant back to work at light duty. The ALJ found that the work was legitimate and not “sheltered employment” and that it qualified as S.A.E. Where the employer offers a suitable job, it is not necessary to examine jobs on the open market to establish a wage-earning capacity. The ALJ awarded benefits for Permanent Partial disability.
Kujtim Osmani v. Service Employees International, Inc. and Insurance Company of the State of Pennsylvania; Director, OWCP, BRB No. 21-0568 (02/27/2023)
The claimant, a citizen of Kosovo, worked in Iraq and Afghanistan from September 2005 through April 2008. He filed a claim for psychological injuries on July 22, 2019.
The ALJ found that the claim was untimely under Sections 912(a) and 913(a), but he proceeded to discuss the merits. He found that the claimant was not entitled to the section 920(a) presumption of causation, but he considered the merits of the claim and denied benefits based on the preponderance of the evidence.
Note: Section 912(a) of the LHWCA provides that, “Notice of an injury or death … shall be given within thirty days after the date of such injury ….”
Note: The time limit is one year in a case involving an occupational disease. Section 912(d) provides that “Failure to give such notice shall not bar any claim … (1) if the employer … had knowledge of the injury or death, (2) the deputy commissioner determines that the employer or carrier has not been prejudiced by failure to give such notice, or (3) if the deputy commissioner excuses such failure ….” Section 913(a) provides that, “… the right to compensation shall be barred unless a claim is filed therefor within one year after the injury or death ….”
Note: Two years for claims based on an occupational disease. The BRB found that the ALJ’s decision was flawed under section 912(d) and that the ALJ also erred when he found that the claimant failed to invoke the section 920(a) presumption. The BRB decided that both constituted “harmless error” since the ALJ fully considered the merits of the claim. The denial was affirmed.
The Director, OWCP, objected to the legality of the claimant’s deposition testimony because he had been deposed in Kosovo, and Kosovo law prohibits depositions without government approval. The BRB dismissed this objection since it had been raised for the first time on appeal and because the claimant had waived any objection (he only objected after the ALJ had denied the claim). This issue arose in other D.B.A. cases as well, with similar results.
Steve Bussanich v. Marine Terminal Corporation d/b/a Ports America and Ports Insurance Company; Director, OWCP, BRB No. 22-0071 (03/30/2023)
This published decision involved the claimant’s appeal of the ALJ’s grant of Summary Decision to the employer. The claimant had sought modification under Section 922, and the ALJ denied the request as untimely.
Note: Section 922 provides that, “Upon his own initiative , or upon the application of any party in interest … on the ground of a change in condition or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case, ….”
The claim had previously been denied up to and including an appeal to the federal Ninth Circuit Court of Appeals. The date of last payment of compensation was June 6, 2017. The application for modification was filed on December 3, 2020, clearly past the one-year last payment of compensation but within one year from the Ninth Circuit’s denial dated December 10, 2019.
The claimant argued that the one-year time requirement should be measured from the date that the Ninth Circuit’s decision became final. The BRB agreed with the Director, OWCP’s argument that when there is a “rejection” of a claim, the time for requesting modification runs from the date of the final decision on appeal. The ALJ’s grant of Summary Decision was reversed, and the case was remanded.
I will continue to evaluate cases decided during 2023 as the year progresses. Please continue checking the AEU Longshore Insider for Part Two in the months ahead.
