TOPIC 13

Topics  13.1    Time for Filing of Claims--Generally

Reed v. Bath Iron Works, 38 BRBS 1 (20004).

            In a case of first impression, the Board held that the phrase “without an award,” contained within Section 13(a) refers to payments without an award under the LHWCA.  Therefore, where an employer makes any payments without an award under the LHWCA, the Section 13(a) limitations period is tolled until one year after the employer’s last payment.  Here an employer who had made payments pursuant to a state act, argued that the LHWCA claim was untimely since it came more than one year after the employee knew he had a work-related injury.  However, the Board stated:

It follows that employer’s payment pursuant to the state compensation award constitutes a payment without an award under the Act, and that therefore the statute of limitations was tolled until one year after employer’s last payment… .  As employer’s liability under the Longshore Act had not been determined at the time employer made its payments to claimant under the state award, those payments are considered advanced payments of compensation with regard to employer’s potential liability under the Act.  Therefore, they are payments without an award for purposes of Section 13(a).  Section 14(j) of the Act, 33 U.S.C. § 914(j), has been construed so that any payments by employer intended as compensation may be considered “voluntary” so as to permit employer a credit under the Act….Thus, whether paid purely voluntarily or as a result of an award under another compensation system, the status of payments made without a Longshore award is the same.  Where no award under the Act has yet been entered, a payment by an employer intended as compensation for claimant’s injury must be considered an advance, i.e. voluntary payment of compensation under the Act.

Topic  13.1     Time for Filing of Claims--Starting the Statute of Limitations;                                        Modification--De Minimis Awards

Hodges v. Caliper, Inc., (Unpublished) (BRB No. 01-0742) (June 17, 2002).

            At issue here was whether the claimant timely filed his claim under Section 13(a) in lieu of Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121, 31 BRBS 54 (CRT) (1997). In 1995 the claimant's right eye was injured by a welding spark. Upon medical examination the claimant exhibited mild inflamation of the eye with an area of superficial corneal scar tissue of unknown etiology and was diagnosed with post-traumatic iritis. Subsequently a few months later the claimant's vision tested at 20/20. He continued working and in 1999 noticed a cloud in his field of vision while welding. Upon examination the doctor attributed the claimant's vision problem to a corneal scar that could be removed or reduced by laser surgery and this procedure was authorized by the employer.

            The Board upheld the ALJ's finding that the claimant had not been aware that his eye injury would affect his wage-earning capacity until the onset of his vision clouding in 1999 and therefore, the claim was timely filed. At the OALJ hearing, the employer had also contended that Rambo II required that the claimant file a claim for a de minimis award within one year from the 1995 date of the claimant's eye accident. The ALJ had found it to be unclear whether Rambo II imposes such a requirement and that, in any case, the claimant had no reason to believe before 1999 that his eye injury had a significant potential to diminish his future wage-earning capacity.

            The Board noted that in Rambo II, the Court had declined to determine how high the potential for disability needed to be to qualify as "nominal," since that issue was not addressed by the parties and that instead, the Court had adopted the standard of the circuit courts which had addressed this issue by requiring the claimant to establish a "significant possibility" of a future loss of wage-earning capacity in order to be entitled to a de minimis award. The Board further noted that pertinent to the employer's argument in the instant case, the Court in Rambo II relied in part on the limitations period for traumatic injuries in Section 13(a) as grounds for its approving de minimis awards. The Court had stated that Section 13(a) "bars an injured worker from waiting for adverse economic effects to occur in the future before bringing his disability claim, which generally must be filed within a year of injury." Rambo II, 521 U.S. at 129, 31 BRBS at 57 (CRT). However, the Board found that "statements by the Rambo II Court regarding Section 13(a) were not directly material to the actual Section 22 issue before the Court and, consequently are dicta. Accordingly, the [ALJ] was not required to apply Rambo II to determine whether the claim herein was time-barred.

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Topic  13.1.1  Time for Filing of Claims--Voluntary Payments

Reed v. Bath Iron Works, 38 BRBS 1 (20004).

            In a case of first impression, the Board held that the phrase “without an award,” contained within Section 13(a) refers to payments without an award under the LHWCA.  Therefore, where an employer makes any payments without an award under the LHWCA, the Section 13(a) limitations period is tolled until one year after the employer’s last payment.  Here an employer who had made payments pursuant to a state act, argued that the LHWCA claim was untimely since it came more than one year after the employee knew he had a work-related injury.  However, the Board stated:

It follows that employer’s payment pursuant to the state compensation award constitutes a payment without an award under the Act, and that therefore the statute of limitations was tolled until one year after employer’s last payment… .  As employer’s liability under the Longshore Act had not been determined at the time employer made its payments to claimant under the state award, those payments are considered advanced payments of compensation with regard to employer’s potential liability under the Act.  Therefore, they are payments without an award for purposes of Section 13(a).  Section 14(j) of the Act, 33 U.S.C. § 914(j), has been construed so that any payments by employer intended as compensation may be considered “voluntary” so as to permit employer a credit under the Act….Thus, whether paid purely voluntarily or as a result of an award under another compensation system, the status of payments made without a Longshore award is the same.  Where no award under the Act has yet been entered, a payment by an employer intended as compensation for claimant’s injury must be considered an advance, i.e. voluntary payment of compensation under the Act.

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Topic  13.1.2  Time for Filing of Claims--Section 13(b) Occupational Disease

Bath Iron Works Corp. v. U.S. Labor, [Onebeacon f/k/a Commercial Union York Insurance Co. v Knight], 336 F.3d 51 (1st Cir. 2003).

            The First Circuit upheld the timeliness of a widow's claim for benefits filed more than 3 years after her husband's death. The ALJ had found that she had not had any reason to believe or suspect that there was an interrelationship between the worker's death and work-related asbestos exposure until shortly before the claim was filed. The death certificate had listed as the cause of death "adenocarcinoma, primary unknown" of "3 mos."duration. The ALJ found that even had the widow known that her husband died of mesothelioma, she had no reason to link that disease to her husband’s asbestos exposure in the workplace.

            In upholding the ALJ, the First Circuit found that Section 13(b)(2) creates a "'discovery rule' of accrual," deferring the commencement of the statute of limitations until an employee or claimant has or should have an awareness "of the relationship between the employment, the disease, and the death or disability." The court noted that the scope of its review is to determine that the ALJ used the correct legal standard. " An ALJ's ultimate conclusion of when a claimant 'becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the disability'...does not present a pure question of law amenable to de novo appellate review. Rather, this fact-intensive determination is one that a reviewing tribunal should disturb only if unsupported by 'substantial evidence.'" The First Circuit also concluded that Section 20(b) does create a presumption of timeliness under Section 13(b)(2), and that the burden is on the employer to demonstrate noncompliance with the requirements of Section 13(b)(2).

Topic  13.1.2  Time for Filing of Claims--Section 13(b) Occupational Diseases

Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210 (2003).

            The Court held that former employees can recover damages for mental anguish caused by the  “genuine and serious” fear of developing cancer where they had already been diagnosed with asbestosis caused by work-related exposure to asbestos.  This adheres to the line of cases previously set in motion by the Court.  See Metro-North Commuter R. Co. v. Buckley, 521 U.S. 424 (1997)(When the fear of cancer “accompanies a physical injury,” pain and suffering damages may include compensation for that fear.)  The Court noted that the railroad’s expert acknowledged that asbestosis puts a worker in a heightened risk category for asbestos-related lung cancer, as well as the undisputed testimony of the claimants’ expert that some ten percent of asbestosis suffers have died of mesothelioma. Thus, the Court found that claimants such as these would have good cause for increased apprehension about their vulnerability.  The Court further noted that the claimants must still prove that their asserted cancer fears are genuine and serious.

[ED. NOTE: Mesothelioma is not necessarily preceded by asbestosis.]

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Topic  13.2     Time for Filing of Claims--Defining a Claim

Stevedoring Services of America v. Director, OWCP, 297 F.3d 797 (9th Cir. 2002).

            The "last employer doctrine" does not contemplate merging two separate hearing loss claims into one. Here the claimant had filed two separate hearing loss claims based on two separate reliable audiograms. There was no dispute that the claimant's jobs at both employers were both injurious. The Ninth Circuit, in overruling both the ALJ and the Board, noted that, "[n]o case holds that two entirely separate injuries are to be treated as one when the first one causes, or is at least partially responsible for, a recognized disability."

            The Ninth Circuit explained that, "[I]t is clear that had the first claim been dealt with expeditiously, the second claim would have been considered a separate injury....It was only fortuitous that the case was delayed to the point that the second claim became part of the same dispute. It is true that the “’last employer doctrine' is a rule of convenience and involves a certain amount of arbitrariness. However, the arbitrariness does not extend to an employer being liable for a claim supported by a determinative audiogram filed previously against a separate employer that simply has not been resolved."

            The court opined that, "[T]reating the two claims separately is supported by sound public policy principles. n hearing loss cases, a claimant is likely to continue working even after the onset of disability. If a later audiogram is conducted--something the claimant will undoubtedly undergo in the hope of getting compensated for any additional injury--the first employer can simply point to the later audiogram as ‘‘determinative' and hand off the burden of primary liability."

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Topic  13.3     Time For Filing Claims--Awareness Standard

Bath Iron Works Corp. v. U.S. Labor, [Onebeacon f/k/a Commercial Union York Insurance Co. v Knight], 336 F.3d 51 (1st Cir.  2003).

            The First Circuit upheld the timeliness of a widow's claim for benefits filed more than 3 years after her husband's death. The ALJ had found that she had not had any reason to believe or suspect that there was an interrelationship between the worker's death and work-related asbestos exposure until shortly before the claim was filed. The death certificate had listed as the cause of death "adenocarcinoma, primary unknown" of "3 mos." duration. The ALJ found that even had the widow known that her husband died of mesothelioma, she had no reason to link that disease to her husband’s asbestos exposure in the workplace.

            In upholding the ALJ, the First Circuit found that Section 13(b)(2) creates a "'discovery rule' of accrual," deferring the commencement of the statute of limitations until an employee or claimant has or should have an awareness "of the relationship between the employment, the disease, and the death or disability." The court noted that the scope of its review is to determine that the ALJ used the correct legal standard. " An ALJ's ultimate conclusion of when a claimant 'becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the disability'...does not present a pure question of law amenable to de novo appellate review. Rather, this fact-intensive determination is one that a reviewing tribunal should disturb only if unsupported by 'substantial evidence.'" The First Circuit also concluded that Section 20(b) does create a presumption of timeliness under Section 13(b)(2), and that the burden is on the employer to demonstrate noncompliance with the requirements of Section 13(b)(2).

Topic  13.3     Time for Filing of Claims--Awareness Standard

Newport News Shipbuilding & Dry Dock Co. v. Williams, (Unpublished) (No. 01-2072) (2002 WL  1579570) (July 11, 2002) (4th Cir. 2002).

            In this matter the ALJ found that the claimant's filing a claim four years after an injury was not timely. The Board reversed, finding that the claimant had no reason to be aware of a likely impairment of his earning power until almost four years after the injury when he underwent a nerve block. The employer appealed contending that the Board had substituted its own finding of fact for that of the ALJ. The Fourth Circuit upheld the Board, noting that Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20 (4th Cir. 1991) was controlling. The court held that the question of whether the claim was timely filed related to when the claimant knew, or had reason to know, that his injury was likely to impair his earning capacity and that seeking ongoing treatment, experiencing pain, or knowing of a possible future need for surgery, are legally insufficient to trigger the running of the one-year limitations period.

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Topic  13.3.1  Time for Filing of Claims--Effect of Diagnosis/Report

Newport News Shipbuilding & Dry Dock Co. v. Williams, (Unpublished) (No. 01-2072) (2002 WL1579570) (July 11, 2002) (4th Cir.2002).

            In this matter the ALJ found that the claimant's filing a claim four years after an injury was not timely. The Board reversed, finding that the claimant had no reason to be aware of a likely impairment of his earning power until almost four years after the injury when he underwent a nerve block. The employer appealed contending that the Board had substituted its own finding of fact for that of the ALJ. The Fourth Circuit upheld the Board, noting that Newport News Shipbuilding & Dry Dock Co. v. Parker, 935 F.2d 20 (4th Cir. 1991) was controlling. The court held that the question of whether the claim was timely filed related to when the claimant knew, or had reason to know, that his injury was likely to impair his earning capacity and that seeking ongoing treatment, experiencing pain, or knowing of a possible future need for surgery, are legally insufficient to trigger the running of the one-year limitations period.

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Topic  13.3.2  Time For Filing Claims--Occupational Diseases

Bath Iron Works Corp. v. U.S. Labor, [Onebeacon f/k/a Commercial Union York Insurance Co. v Knight], 336 F.3d 51 (1st Cir. 2003).

            The First Circuit upheld the timeliness of a widow's claim for benefits filed more than 3 years after her husband's death. The ALJ had found that she had not had any reason to believe or suspect that there was an interrelationship between the worker's death and work-related asbestos exposure until shortly before the claim was filed. The death certificate had listed as the cause of death "adenocarcinoma, primary unknown" of "3 mos."duration. The ALJ found that even had the widow known that her husband died of mesothelioma, she had no reason to link that disease to her husband’s asbestos exposure in the workplace.

            In upholding the ALJ, the First Circuit found that Section 13(b)(2) creates a "'discovery rule' of accrual," deferring the commencement of the statute of limitations until an employee or claimant has or should have an awareness "of the relationship between the employment, the disease, and the death or disability." The court noted that the scope of its review is to determine that the ALJ used the correct legal standard. " An ALJ's ultimate conclusion of when a claimant 'becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the disability'...does not present a pure question of law amenable to de novo appellate review. Rather, this fact-intensive determination is one that a reviewing tribunal should disturb only if unsupported by 'substantial evidence.'" The First Circuit also concluded that Section 20(b) does create a presumption of timeliness under Section 13(b)(2), and that the burden is on the employer to demonstrate noncompliance with the requirements of Section 13(b)(2).

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Topic  13.4.5  Time for Filing Claims—Laches

Kirkpatrick v. B.B.I, Inc., 38 BRBS 27 (2004).

            The Board affirmed the ALJ's finding that the claimant was covered by the OCSLA although the claimant was not directly involved in the physical construction of an offshore platform. The parties had stipulated that the worker's "primary job function was supervising the ordering and transportation of materials necessary to the construction of the Conoco platform complex, upon which he was injured." As the claimant's purpose for being on the platform was to procure supplies necessary to construct the platform, and his injury occurred during the course of his duties, his work satisfies the OCSLA status test.

            The Board also found that Sections 12 and 13 apply to a claimant's notice of injury and claim for compensation due to his injury; these sections do not apply to a carrier seeking a determination that another carrier is responsible for claimant's benefits. The Board stated, "There is, in fact, no statutory provision requiring a carrier seeking reimbursement from another carrier to do so within a specified period."

            Here INA claimed that it relied on Houston General's 12 year acceptance of this claim and, to its detriment, "is now facing a claim for reimbursement approaching three-quarters of a million dollars, without the opportunity to investigate contemporaneously, manage medical treatment, engage in vocational rehabilitation, monitor disability status, etc." The Board rejected this argument "as there was no representation or action of any detrimental reliance, there can be no application of the doctrine of equitable estoppel."

            Further, the Board noted that the doctrine of laches precludes the prosecution of stale claims if the party bringing the action lacks diligence in pursuing the claim and the party asserting the defense has been prejudiced by the same lack of diligence. Additionally the Board noted that because the LHWCA contains specific statutory periods of limitation, the doctrine of laches is not available to defend against the filing of claims there under. "As the claim for reimbursement is related to claimant's claim under the Act by extension of OCSLA, and as the Supreme Court has stated that the doctrine of laches does not apply under the OCSLA, the doctrine of laches does not apply to this case.

            The Board found that neither judicial estoppel nor equitable estoppel applied and noted that "jurisdictional estoppel" is a fictitious doctrine.

            The Board vacated the ALJ's ruling that he did not have jurisdiction to address the issue of reimbursement between the two insurance carriers. "Because INA's liability evolved from claimant's active claim for continuing benefits, and because its responsibility for those benefits is based entirely on the provisions of the Act, as extended by the OCSLA, we vacate the [ALJ's] determination that he does not have jurisdiction to address the reimbursement issue, and we remand the case to him…."

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Topic  13.4     Time For Filing Of Claims--Section 13(d):  Tolling The Statute

Lewis v. SSA Gulf Terminals, Inc., (Unpublished) (BRB No. 03-0523)(April 22, 2004).

            When the claimant moved to stay the longshore proceeding until his Jones Act suit was complete, the Board found that the ALJ was within his authority to stay the LHWCA claim.  The Board noted that the ALJ had based his reasoning on the case law applicable in the Fifth Circuit.  Sharp v. Johnson Brothers Corp., 973 F.2d 423, 26 BRBS 59(CRT) (5^th Cir. 1992), cert. denied, 508 U.S. 907 (1993)(If a formal award under the LHWCA is issued after the ALJ makes findings of fact and conclusions of law, the claimant is precluded from pursuing a Jones Act suit, because he had the opportunity to litigate the coverage issue, even if it was not actually litigated.); contra, Figueroa v. Campbell Industries, 45 F.3d 311 (9^th Cir. 1995).  “As the [ALJ] provided a rational basis for canceling the hearing and holding the case in abeyance, and as employer has not demonstrated an abuse [of] the {ALJ]’s discretion in this regard, we affirm …the action.”  The Board however, did not affirm the ALJ’s decision to remand the case to the district director.  Rather, the ALJ must retain the case on his docket and award or deny benefits after a formal hearing is held.

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