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. This is the second installment of interesting cases decided during calendar year 2023. Click here to read "Part One: Interesting Cases Decided During Calendar Year 2023."
In this case, the Benefits Review Board (BRB) reversed an Administrative Law Judge’s (ALJ) grant of Summary Decision to the employer on the issues of situs and status.
The claimant was a tire technician who worked at a facility located about 2.1 miles from the navigable water. Between his location and the water were a major highway, several residential neighborhoods, and numerous non-maritime businesses. It appears to be a weak case for situs. The claimant argued, however, that he met the situs requirement for USL&H coverage because he aggravated his knee condition during brief work-related trips to the Port of Savannah.
The ALJ found no aggravation and no situs. He also found that the claimant’s work repairing tires and rims for the chassis did not meet maritime status.
The BRB reversed the ALJ on both situs and status and remanded the case for a fuller discussion of all the evidence on both issues. This case will be an interesting one to follow.
Timeliness of the claim filing was at issue in this case, where a Defense Base Act (DBA) claim was filed 14 years after an auto accident. The claim was found to be timely under Section 913(a) based on the tolling provision of Section 930(f). The employer had not filed Form LS-202, Employer’s First Report of Injury.
Note: Section 930(f) provides that, “Where the employer or carrier has been given notice, or the employer … or carrier has knowledge, of any injury or death of any employee and fails, neglects, or refuses to file report thereof as required by the provisions of subdivision (a) of this section, the limitations in subdivision (a) of section 13 of this Act shall not begin to run against the claim … until such report shall have been furnished ….”
Several other issues were discussed in this decision. The DBA’s Zone of Special Danger doctrine was involved, as was the statutory employer provision of section 904(a) (KBR was liable because its subcontractor was uninsured). Also, the BRB noted that the penalty provision of section 914(e) is mandatory and can be raised at any time. This is an interesting case, and I recommend that you read the entire decision.
This case involved the BRB’s grant of the claimant’s motion for reconsideration of its decision in Apaza v. SOC-SMG, Inc., BRB No. 21-0076 (01/20/2023). (The request for en banc review was denied.)
This case illustrates the difference among the federal circuit courts of appeal on the issue of the proper burdens of proof for the claimant in establishing a prima facie case, in invoking the section 920(a) presumption and rebutting the presumption. The claimant argued that the federal Second Circuit law controlled the disposition of his hearing loss claim under the Defense Base Act since the District Director in DOL’s New York district office had filed and served the ALJ’s Order. The employer argued that Fifth Circuit law controlled.
The BRB applied Second Circuit law to find that the claimant’s burden of proof at the prima facie stage is one of production only and does not involve a credibility determination. The ALJ was reversed, and the BRB found that the section 920(a) presumption of causation was invoked and not rebutted. The hearing loss was work-related as a matter of law. The case was remanded for calculation of an award. We are reminded that the issue of burden of proof to establish a prima facie case may involve a credibility determination in the jurisdiction of the federal Fifth Circuit, which covers the states of Texas, Louisiana, and Mississippi.
This remanded hearing loss claim is back up to the BRB. The case involved a claim filed by a retiree who had worked from 1966 to 1978 in non-maritime employment, then worked for four weeks in 1981 for Ingalls Shipbuilding, and then worked from 1981 until 2010 back in non-maritime employment. Yes, you read that right. The claim is based on four weeks of maritime employment involving questionable exposure, followed by almost 30 years of non-maritime employment filed by a claimant in his ‘seventies.
In 2015, an audiogram showed an 8.4% bilateral hearing loss. The ALJ initially denied the claim, finding that the hearing loss was not caused by the four weeks of maritime employment, which had ended 34 years prior to the audiogram. In the process, the ALJ found that the claimant’s description of his duties during those four weeks was vague and that the claimant lacked credibility.
On the first appeal, the BRB affirmed the ALJ’s denial of the claim based on the preponderance of the evidence in the record as a whole. But based on a remark supposedly made by the claimant to a doctor recorded in a medical report, the BRB found that the ALJ had not properly considered whether the section 920(a) presumption of causation had been invoked and rebutted. (You can see the contradiction. The denial based on the preponderance of the persuasive evidence was affirmed, but to the BRB, there was a question as to whether the evidence at the production-only stage rebutted the section 920(a) presumption.) In the interest of judicial inefficiency, the case went back to the ALJ.
To make an unnecessarily long story short, on remand, the ALJ considered section 920(a) in a formula acceptable to the BRB and again denied the claim. The BRB has now (one would “presume” grudgingly) affirmed that the shipyard employer is not responsible for an elderly claimant’s 8.4% hearing loss based on four weeks of employment involving a vague description of duties from a non-credible claimant from 34 years in the past.
Note: As unbelievable as this case might sound, you really must acknowledge that the disposition is consistent with the literal application of hearing loss jurisprudence under the Longshore Act. That is, for starters, no account is taken of the effects of natural aging or post-maritime employment.
This is an attorney fee case in the context of a DBA claim. It presents a good discussion of how the obligation to pay the (successful) claimant’s attorney fee shifts to the employer under sections 928(a) and 928(b).
The ALJ denied an employer-paid attorney fee in this case under section 928(a) because the employer had not refused to pay “any compensation” on or before the thirtieth day after receiving written notice of the claim and under section 928(b) because there had not been an informal conference in the case. The BRB has adopted the position that an informal conference is a prerequisite to an employer-paid attorney fee under section 928(b) in all federal circuits except for the Ninth, where a less literal interpretation may apply.
The BRB affirmed the fee denial, including the ALJ’s finding that a claim examiner’s letter to the parties did not constitute the equivalent of an informal conference recommendation.
Learn more about informal conferences in the Longshore Insider blog, "3 Things You May Not Know About Informal Conferences."
This case involves an injury that occurred in a parking lot while an employee was jogging on his lunch break. The parking lot was owned by the U.S. Navy but was used by the employees of the non-appropriated fund instrumentality employer, which customarily handled maintenance issues. The decision contains a useful discussion of slip and fall parking lot cases and a lengthy dissent.
My interest here is in the question of whether the lunchtime injury occurred in the course and scope of employment. It was noted that the employer encouraged employees to exercise and that the injury occurred on premises controlled by the employer. The BRB found that the ALJ’s weighing of the evidence was reasonably within his discretion, and the decision to cover the injury was affirmed.
We continue to review cases from the calendar year 2023 and plan to discuss more in “Part Three: Interesting Cases from 2023.”