TOPIC 20

Topic  20.1     Presumptions—Generally

Announcement-- Possible Gulf War Fire/Lung Cancer Link

            According to the Associated Press, a committee of the Institute of Medicine [a branch of the National Academy of Science, an independent group chartered by Congress to advise the government on scientific matters], states that Gulf War personnel exposed to pollution from the well fires, exhaust and other sources may face an increased lung cancer risk.  More than 600 oil well fires were ignited by Iraqi troops during their retreat from Kuwait in 1991.

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Topic  20.2.1  Presumptions—Section 20(a)—Prima Facie Case 

Mai v. Knight & Carver Marine, (Unpublished)(BRB No. 04-0183)(Oct. 15, 2004).

            This case contains a discussion of the “adverse inference rule.”  Here the Board rejected the claimant’s contention that an adverse inference should have been drawn based on the employer’s failure to produce the claimant’s time cards, which the claimant alleges would have shown maritime employment:

“Such an inference cannot substitute for claimant’s failure to establish an essential element of his claim, namely, that he engaged in maritime employment.  Moreover, employer correctly contends that claimant could have obtained this evidence through discovery, but apparently made no attempt to do so.”

Topic  20.2.1  Presumptions—Prima Facie Case

Phillips v. Chevron, U.S.A., (Unpublished)(BRB No. 03-0613)(June 17, 2004).

            The Board upheld the ALJ's denial of benefits where the claimant alleged that he developed a disabling psychological condition following events surrounding an oil spill because the claimant could not present a prima facie case. The Board noted that while a psychological impairment which is work-related is compensable and that Section 20(a) does apply, in this particular case there was evidence only of personnel issues causing stress, and not an indication that incidents of day-to-day working conditions causing the claimant's illness. The Board noted that it will not second-guess an employer's business practices: "It is not the role of the Board to determine whether the actions taken by employer were based on valid concerns, but rather whether they were legitimate personnel decisions made in the course of business."

Topic  20.2.1  Presumptions--Prima Facie Case

[ED. NOTE:  The following is included for informational purposes only.]

Stroka v. United Airlines, (Unpublished) N.J. Super. Ct. App. Div. (No. a4274-01)(Nov. 26, 2003).

            A New Jersey court of appeals found that a flight attendant who was originally scheduled to work (but was not actually working) on a plane that crashed on September 11, 2001 was not eligible for workers' compensation since her post-traumatic stress syndrome was not triggered while working.

Topic  20.2.1  Presumptions–Prima Facie Case

Haynes v. Vinnell Corporation, (Unreported) (BRB No. 01-0741) (June 17, 2002).

            In this Gulf War Illness case (Defense Base Act) the ALJ referenced the causation burden/scheme of the Persian Gulf War Veterans' Act of 1998, 38 U.S.C. § 1117 et seq., Public Law 105-277, which provides a legal presumption for veterans of the United States military that they were exposed to various toxic substances. While the ALJ acknowledged that statute was not applicable to the instant claimant, who was a civilian employee, the ALJ found that the statute could be considered persuasive in establishing a claimant's prima facie case. The ALJ summarily concluded that the evidence (article submitted stated detrimental effects from exposure were dependent on frequency and level of exposure) was not sufficient to invoke the public law presumption. However, the Board noted that the issue for purposes of the LHWCA is whether the claimant established exposure which could potentially cause the harm alleged. The Board noted that both the claimant and employer were in agreement that the claimant was employed by the employer during the period of time that the employer's base camp experienced both the effects of the oil well fires which burned in Kuwait and the application of pesticides throughout the camp.

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Topic  20.2.3  Presumptions—Occurrence of Accident or Existence of Working Conditions Which Could Have Caused the Accident

Phillips v. Chevron, U.S.A., (Unpublished)(BRB No. 03-0613)(June 17, 2004).

            The Board upheld the ALJ's denial of benefits where the claimant alleged that he developed a disabling psychological condition following events surrounding an oil spill because the claimant could not present a prima facie case. The Board noted that while a psychological impairment which is work-related is compensable and that Section 20(a) does apply, in this particular case there was evidence only of personnel issues causing stress, and not an indication that incidents of day-to-day working conditions causing the claimant's illness. The Board noted that it will not second-guess an employer's business practices: "It is not the role of the Board to determine whether the actions taken by employer were based on valid concerns, but rather whether they were legitimate personnel decisions made in the course of business."

Topic  20.2.3  Presumptions--Occurrence of Accident or Existence of Working Conditions Which Could Have Caused the Accident

[ED. NOTE:  The following is included for informational purposes only.]

Stroka v. United Airlines, (Unpublished) N.J. Super. Ct. App. Div. (No. a4274-01)(Nov. 26, 2003).

            A New Jersey court of appeals found that a flight attendant who was originally scheduled to work (but was not actually working) on a plane that crashed on September 11, 2001 was not eligible for workers' compensation since her post-traumatic stress syndrome was not triggered while working.

Topic  20.2.3  Presumptions--Occurrence of Accident or Existence of Working Conditions Which Could Have Caused the Accident

Haynes v. Vinnell Corporation, (Unreported) (BRB No. 01-0741) (June 17, 2002).

            In this Gulf War Illness case (Defense Base Act) the ALJ referenced the causation burden/scheme of the Persian Gulf War Veterans' Act of 1998, 38 U.S.C. § 1117 et seq., Public Law 105-277, which provides a legal presumption for veterans of the United States military that they were exposed to various toxic substances. While the ALJ acknowledged that statute was not applicable to the instant claimant, who was a civilian employee, the ALJ found that the statute could be considered persuasive in establishing a claimant's prima facie case. The ALJ summarily concluded that the evidence (article submitted stated detrimental effects from exposure were dependent on frequency and level of exposure) was not sufficient to invoke the public law presumption. However, the Board noted that the issue for purposes of the LHWCA is whether the claimant established exposure which could potentially cause the harm alleged. The Board noted that both the claimant and employer were in agreement that the claimant was employed by the employer during the period of time that the employer's base camp experienced both the effects of the oil well fires which burned in Kuwait and the application of pesticides throughout the camp.

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Topic  20.2.4  Presumptions--ALJ's Proper Invocation of Section 20(a)

Burley v. Tidewater Temps, Inc., 35 BRBS 185 (2002).

            Here the Board found the ALJ's exclusion from evidence of a labor market survey to be an abuse of discretion and a violation of 20 C.F.R.. § 702.338 ("...The [ALJ] shall inquire fully into the matters at issue and shall receive in evidence the testimony of witnesses and any documents which are relevant and material to such matters. ...) by excluding this relevant and material evidence. Significantly, the Board stated:

Moreover, given the importance of the excluded evidence in this case and the administrative law judge's use of permissive rather than mandatory language in his pre-hearing order, employer's pre-hearing submission of its labor market survey to claimant ...does not warrant the extreme sanction of exclusion.

            While the submission time of this report did not comply with the pre-trial order, employer argued that it was reasonable in that it was in direct response to a doctor's deposition taken only four days prior to the time limit. Furthermore, the employer argued that the ALJ's pre-trial order used the permissive rather than mandatory language ("Failure to comply with the provisions of this order, in the absence of extraordinary good cause, may result in appropriate sanctions.")

            In ruling in favor of the employer on this issue, the Board distinguished this case from Durham v. Embassy Dairy, 19 BRBS 105 (1986) (Held: ALJ has discretion to exclude even relevant and material evidence for failure to comply with the terms of a pre-hearing order even despite the requirements of Section 702.338) and Smith v. Loffland Bros., 19 BRBS 228 (1987) (Held: party seeking to admit evidence must exercise due diligence in developing its claim prior to the hearing.) The Board noted that Durham did not involve the last minute addition of a new issue, i.e., the availability of suitable alternate employment, but rather employer's failure to list a witness, whose testimony would have been with regard to the sole issue in that case, in compliance with the ALJ's pre-hearing order. Similarly, the Board distinguished Smith as a case where the party did not exercise due diligence in seeking to admit evidence.

            Additionally, in Burley, the Board found that the ALJ properly invoked the Section 20(a) presumption, finding that the parties stipulated that the claimant sowed that he suffered an aggravation to a pre-existing, asymptomatic fracture in his left wrist and that conditions existed at work which could have caused this injury.

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Topic  20.3     Presumptions—Employer Has Burden of Rebuttal with Substantial Evidence

Harris v. Elmwood Dry Dock & Repair, (Unpublished) (BRB No. 04-0171)(Oct. 19, 2004).

            At issue in this Section 20(a) case was whether the death of a deceased worker was causally related to his employment.  He died of septic shock caused by aeromanas hydrophilia.  Aeromonas hydrophilia  is a bacterium commonly found in fresh water.  Aeromonas hydrophilia can enter the bloodstream from a cut or puncture would and contact with fresh water, by ingestion from drinking water into the gastro-intestinal tract, or by aspiration directly into the lungs.  Aeromonas hydrophilia may cause skin and soft tissue infection at the site of the cut or would, and intestinal tract infection.  In rare cases it causes pneumonia or sepsis. 

Topic  20.3     Presumptions--Employer Has Burden of Rebuttal With Substantial Evidence

Boone v. Barnhart, Commisioner of Social Security, 353 F.3d 203 (3rd Cir. 2003).

            Here the Third Circuit found that substantial evidence needed to show that the claimant could perform a significant number of jobs existing in the economy was lacking Therefore there was no support for the proposition that the claimant was not disabled and thus not entitled to supplemental Security Income disability benefits. The court, while not making a general ruling, specifically found here that an unexplained conflict between a vocational expert's testimony and the Dictionary of Occupational Titles necessarily requires reversal. The court further found that the vocational expert's testimony in this case was not substantial evidence.

Topic  20.3     Presumptions--Employer has Burden of Rebuttal with Substantial Evidence

Charpentier v. Ortco Contractors, Inc.,  ___ U.S. ___, 124 S.Ct. 825, (Mem.)(Cert. denied December 1, 2003). [See next entry.]

            The Supreme Court refused certiorari in the Fifth Circuit's holding, Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283 (5th Cir. 2003), that the Board failed to give proper deference to the ALJ's assessment of evidence by erecting a higher evidentiary standard for rebutting the Section 20(a) presumption than the one specified in the LHWCA (that an employer submit only "substantial evidence to the contrary"). In this case the worker's heart attack began at home the night before and progressed at work the following day, culminating in cardiac arrest. The medical evidence was to the effect that the only connection between the death and the employment was the fact that the worker was at work when the heart attack process concluded. The Board had expressed several different formulations of the requirement imposed by the LHWCA for proving that an injury is not work-related: (1) "rule out," (2) "unequivocally state," and (3) "affirmatively state." The Fifth Circuit noted that all three of these formulations violated its decision in Conoco v. Director, OWCP, 194 F.3d 684 (5th Cir. 1999). It stated that the LHWCA requires a lower evidentiary standard--that the employer must adduce only substantial evidence that the injury was not work-related.

Topic  20.3     Presumptions–Employer has Burden of Rebuttal with Substantial Evidence

Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283 (5th Cir. 2003).  [See Above.]

            Here the Fifth Circuit held that the Board failed to give proper deference to the ALJ’s assessment of evidence by erecting a higher evidentiary standard for rebutting the Section 20(a) presumption than the one specified in the LHWCA (that an employer submit only “substantial evidence to the contrary”).  In the instant case the worker’s heart attack began at home the night before and progressed at work the following day, culminating in cardiac arrest.  The medical evidence was to the effect that the only connection between the death and the employment was the fact that the worker was at work when the heart attack process concluded.

            The Board had expressed several different formulations of the requirement imposed by the LHWCA for proving that an injury is not work-related: (1) “rule out,” (2) “unequivocally state,” and (3) “affirmatively state.”  The Fifth Circuit noted that all three of these formulations violated its decision in Conoco v. Director, OWCP, 194 F.3d 684 (5th Cir. 1999).  It stated that the LHWCA requires a lower evidentiary standard --that the employer must adduce only substantial evidence that the injury was not work-related.

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Topic  20.3.1  Presumptions—Failure to Rebut

Boh Brothers Construction Co. v. Booker (Unpublished) (No. 04-60464 Summary Calendar)(5^th Cir. Nov. 10, 2004).

            In determining that the ALJ’s factual conclusions were supported by substantial evidence, the Fifth Circuit noted that Employer’s Counsel “does not make the distinction between findings of fact and conclusions of law.”  The court explained that in Section 20(a) cases the relevant legal standard assesses the admissibility of expert opinion for purposes of assisting the factfinder.  The employer had argued that although the ALJ and Board appeared to conduct the requisite burden-shifting regime, “the practical effect of their decision in the case” was to presume coverage for the claimant.  The court found that “This approach aims to reframe the ALJ’s factual findings as mistaken conclusions of law subject to de novo review and, as such, has no merit.

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Topic  20.4.1  Presumptions—Evidence Based on Record as a Whole

Cooper/T Smith, Inc, v. Veles, (Unreported)(No. 03-60809)(5th Cir. March 17, 2004); 2004 U.S. App. LEXIS 5077.

            In this Section 20(a) presumption case, the employer faulted the ALJ for preferring the testimony of treating physicians over the respondent's expert witness and for crediting the claimant's testimony with respect to the difficulties caused by his knee and back. However, the Fifth Circuit found that the ALJ's findings were supported by substantial evidence, and that the Board acted properly in refusing to gainsay them. The court found that although the respondents pointed to the employer's physician's doubts that the back injury flowed from the claimant's limp, and also pointed to the claimant's "hypersensitivity" to pain, it was within the ALJ's purview to exercise his judgment in evaluating witnesses' credibility and in assembling the evidence presented to him. "Merely because different determinations of credibility could have led to different conclusions, does not mean that the ALJ's fact finding was unsupported by substantial evidence."

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Topic  20.5.1  Presumptions—Application of Section 20(a)—Causal Relationship of Injury to Employment

Darling v. Bath Iron Works Corp., (Unpublished)(BRB No. 04-0285)(Dec. 17, 2004).

            In this psychological injury case the Board made it clear that without Congressional action, it has no plans to deviate from using the general causation standard [“arises out of and in the course of employment”] for psychological injury  cases as well as for physical injury cases.  The employer had suggested that the Board adopt the “clear and convincing” standard codified by the Maine legislature.  In rejecting this suggestion  the Board noted that the general standard for establishing a prima facie case of causation pursuant to Section 20(a) is longstanding and well recognized.

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Topic  20.6.2  Section 20(a) Presumption-Does Not Apply to Jurisdiction

Watkins v. Newport News Shipbuilding & Dry Dock Co., 36 BRBS 21(2002).

            Held, a claimant's work emptying trash barrels from the side of a ship under construction constitutes maritime employment as it is integral to the shipbuilding and repair process, and moreover, is in furtherance of the employer's compliance with a federal regulation. Here the claimant was assigned to employer's Cleaning and Janitorial Department as a cleaner. The first half of her shift she drove a barrel dumpster, which is a machine that empties debris from 55-gallon drums. She or her partner drove the dumpster to the ships' sides, where the dumpster would pick up the full drums and dump them into the machine. The barrels contained trash and shipbuilding materials such as welding rods and strips of iron. The claimant testified that the shipbuilders would fill the barrels during the course of the day, and the crane would take the full barrels off the vessels and place the barrels at the ships' sides. In addition, the claimant and her partner would drive around to other shipyard buildings and dump dumpsters.

            This case is also noteworthy as to the Board's treatment of the Section 20(a) issue. The Director had argued that the ALJ should have given the claimant the benefit of the Section 20(a) presumption as to jurisdiction. The Board stated that it "need not address the general scope of the Section 20(a) presumption in coverage cases, as the courts have held that the Section 20(a) presumption is not applicable to the legal interpretation of the Act's coverage provision." The Board then cited to several circuits that support this view. However, the Board neglected to point out that several circuits hold opposing views.

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Topic  20.7     Section 20(b) Presumption That Notice of Claim Has Been Given

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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