This article continues the discussion started in our recent blog about Benefits Review Board (BRB) decisions dealing with claims filed years after the alleged injury or injurious exposure. (You may want to read that article first for context.)
Additional statutory provisions
Section 20(a) (33 U.S.C. 920(a)): “In any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary –
(a) That the claim comes within the provisions of this Act.”
“Section 30. Reports to the Secretary
(a) Time for sending; contents; …. Within ten days from the date of any injury, which causes loss of one or more shifts of work, or death or from the date that the employer has knowledge of a disease or infection in respect of such injury, the employer shall send to the Secretary a report ….
(f) Tolling provision. Where the employer or carrier has been given notice, or where the employer or carrier has notice, of any injury or death of an 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 … shall not begin to run against the claim of the injured employee … until such report shall have been furnished ….”
So, if the employer does not file a Form LS-202, Employer’s First Report of Injury, (assuming it has knowledge of the injury), the statute of limitations does not begin to run.
Todd O. Brown v. Global Integrated Security, Incorporated and Insurance Company of the State of Pennsylvania; American Home Assurance Company, BRB No. 20-0435, 09/24/2021
This Defense Base Act case presents another recent example where the BRB reversed an Administrative Law Judge’s (ALJ) denial of compensation benefits based on the ALJ’s finding that the claim was untimely filed.
The claimant worked in Iraq from 2011 to April 2015. He injured his back lifting weights on August 23, 2013. He continued working and first sought treatment for back pain in June 2014. Surgery was scheduled in the U.S. for July 2014 but after two steroid injections, he canceled the surgery. He returned to work, passed a physical, and worked until the end of the contract in April 2015. He returned to the U.S., applied for work as a police officer, passed a physical, and was hired in May 2015. He next sought treatment for back pain in May 2016.
Eventually, the claimant had back surgery on October 17, 2016. He filed an LS-201 notice of injury form on October 14, 2016, for the August 2013 weightlifting injury. The employer filed its Form LS-202, Employer’s First Report of Injury, on October 13, 2016, and the claimant filed a claim for benefits on October 27, 2016. This claim was considered to include a claim for cumulative trauma injury to the back through April 2015.
The Administrative Law Judge (ALJ) found that the employer was not aware of the injury in 2013, first becoming aware of the injury on October 6, 2016, and finding that the claimant’s testimony regarding oral notice to two supervisors in 2013 was not credible. Since the employer was not aware of the injury, the tolling provision of section 30(f) did not delay the running of the section 13(a) one-year statute of limitations.
Note: The employer must show that it met its obligation under section 30(a) to report the injury (or that it did not have notice of the injury) in order to start the statute of limitations running and to overcome the section 20(b) presumption of timeliness.
The ALJ found that the October 27, 2016, claim was untimely, since the claimant should have had the requisite awareness of a work-related injury when he scheduled surgery for his back in July 2014.
Note: The ALJ awarded medical benefits, which are not time-barred.
On appeal, the BRB reversed the ALJ on his finding that the claim for the 2013 injury was untimely, quoting familiar language,
“… the claimant must know that there was an injury which constituted an impairment of earning power. The fact that the claimant has suffered an accident and is aware that he is injured is not the test; the test is the awareness of the suffering of a compensable injury.” (Brown v. Jacksonville Shipyards, Inc., 893 F.2d 294 (11th Cir. 1990)).
It seems that although the claimant may have been aware of an injury when he scheduled surgery in 2014, subsequent events, such as the steroid injections, returning to work, passing two physicals, and going to work as a police officer, erased that awareness.
The 2015 claim for cumulative trauma, which the ALJ considered to be included in the claimant’s claim filed on October 27, 2016, was found to be timely filed as within one year of the September 21, 2016, election for back surgery. But the ALJ denied this claim, finding that the claimant failed to establish his prima facie case for this alleged injury. He found nothing in the record that showed an injury or an aggravation of a back injury at any time. He cited the complete relief of symptoms resulting from the 2013 injury, the return to work, and several normal physical examinations.
The claimant took the position that he was not required to establish a prima facie case before getting the benefit of the section 20(a) presumption of causation for the claimed cumulative trauma.
Note: The elements of a prima facie case: That the claimant suffered a harm and an accident or working conditions existed that could have caused the harm. This is a very light burden.
The BRB dismissed the claimant’s argument, stating that, “… the law is well established that the claimant must establish the elements of his prima facie case in order to invoke the 20(a) presumption.” Section 20(a) does not presume an injury.
The BRB affirmed the ALJ’s finding that the claimant failed to establish a prima facie case for cumulative trauma, but since it had reversed the ALJ on the timeliness of the claim for the 2013 injury the case was remanded for the ALJ to address the remaining issues.
Note: An alert observer may question why a weightlifting injury occurring on personal time would be covered by workers’ compensation as arising out of and in the course of employment. This is a DBA case. If you refer to Longshore Insider articles on the Zone of Special Danger doctrine, you will see that virtually every injury is covered under the DBA (and this doctrine has recently been applied by the BRB for the first time in a case arising under the Nonappropriated Fund Instrumentalities Act). The employer didn’t even bother to contest this issue.
There is the potential for this type of claim to be filed many years after an injury if, as described here, there are intermittent symptoms and the claimant continues working, delaying the point of very specific “awareness” that is required of the “full character, extent, and impact of a work-related injury”.
You can also see an inherent contradiction. There is a 2013 injury, no “awareness” of the injury until 2016 because the claimant has continued to work and has no symptoms, and there is no aggravation of the 2013 injury, including during subsequent, non-covered employment, yet a claim for the 2013 injury (that had apparently resolved itself) is timely in 2016. The injury, which was not disabling and of which the claimant was unaware and without aggravation, reappeared years later.
The conclusion is that the section 12 and 13 notice and claim time limits have little meaning.