Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 132
August - October 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeals
In Donaldson v. Coastal Marine Contracting Corp., ___ F.3d ___,
Case No. 96-9295 (11th Cir. July 16, 1997), with regard to the congressional amendment
directing the Board to refer all longshore claims which are pending more than one year to the
appellate court, the Eleventh Circuit commented that "[w]hether or not the Congress
viewed the Benefits Review Board heavily laden with work and court of appeals idle and
underworked does not appear from the record. However, the Act does transfer Board work to the
judiciary." The court then reviewed and affirmed the administrative law judge's decision
in one sentence to state that it was "adequately supported and due to be upheld."
[ 21.3, review by U.S. court of appeals ]
B. Benefits Review Board
In Buchanan v. International Transportation Services, ___
B.R.B.S. ___, BRB Nos. 96-1424, 96-1424A and 96-1424S (July 9, 1997), the Board held that
an employer "may be relieved of liability for disability and/or medical benefits in a two-injury case by establishing that a subsequent work-related injury aggravated the employee's
condition." It stated the following:
In this case . . . Metropolitan bears the burden of proving, without benefit of . . . a
presumption . . . by a preponderance of the evidence that there was a new injury or
aggravation with ITS (a second employer) in order to be relieved of its liability as
responsible operator. (citation omitted). ITS, on the other hand, must prove that
claimant's condition is the result of the injury with Metropolitan in order to escape
liability. A determination as to which employer is liable requires that the
administrative law judge weigh the evidence.
Finally, the Board stated that it is "bound by the controlling law in the Ninth Circuit, in
whose jurisdiction this claim arises" to hold that the decision in Hunt v. Director,
OWCP, 999 F.2d 419 (9th Cir. 1993) permits counsel for a medical care provider seeking
reimbursement of medical costs to be awarded legal fees under the Act.
[ 2.2.7, natural progression of injury; 70.1, responsible
employer; 70.3 successive injuries and the aggravation rule ]
In Perez v. International Terminal Operating Co., ___ B.R.B.S.
___, BRB No. 97-0261 (Sept. 26, 1997):
[E]mployer was impleaded as a third-party defendant in the tort litigation by the
defendant trucking company, and participated to some extent in the settlement
negotiations by agreeing to compromise its lien.
As summarized by the Board, Employer's risk manager testified before the administrative law
judge that "employer was only waiving a portion of the lien and was not otherwise
interested in participating in the third-party action."
In applying Pool v. General American Oil Co., 30 B.R.B.S. 183
(1996), the Board held the administrative law judge's "finding that Section 33(g) applies to
this case is affirmed . . .." The Board further stated the following:
That employer waived part of its lien is insufficient to preclude application of
Section 33(g), . . . , especially in view of the fact that it was impleaded into the
tort suit by the defendant, and employer's specific statement that the compromise
of its lien was not to be construed as approval of the settlement. We therefore
affirm the administrative law judge's determination that Section 33(g) bars
claimant's entitlement to future compensation for his failure to obtain written
approval of the third party settlement.
[ 33.7, written approval of third party settlement ]
In Jackson v. Universal Maritime Service Corp., ___ B.R.B.S.
___, BRB No. 96-1536 (Aug. 14, 1997), the Board held that the district director, and not the
administrative law judge, has the authority to change a claimant's physician. Because this
determination by the district director is purely discretionary, it is reviewable on direct appeal to
the Board under an "abuse of discretion" standard. Consequently, Claimant's
argument that he was entitled to a hearing before an administrative law judge, because there were
disputed factual questions regarding the change, was without merit.
[ 7.5, change of physicians ]
In Fox v. West State, Inc., ___ B.R.B.S. ___, BRB Nos. 96-1781
and 96-1781A (Sept. 29, 1997), the administrative law judge concluded that an injured worker's
prior stroke and cardiac conditions "did not impair him or affect his wage-earning
capacity" and that "claimant obtained employment despite his prior conditions up
until his 1993 injury." As a result, the Board held that it was error for the administrative
law judge to then conclude that Employer had failed to find suitable alternate employment based
upon his employability in light of these conditions:
Although claimant . . . lacked credible affirmative evidence that his prior
conditions affected his employability, he persuaded the administrative law judge
that the vocational evidence was insufficient to meet employer's burden because
the expert did not explicitly state claimant would realistically be hired given his
history.
To the contrary, the Board reiterated that "employer is not required to act as an
employment agency for the employee." Rather, as noted by the Board:
[e]vidence that claimant's prior history makes his obtaining a job unrealistic is
relevant to (the) complementary burden borne by claimants. If, in fact, employers
will not hire applicants with claimant's history of stroke and cardiac problems, it
will be apparent when a claimant demonstrates that his diligent job search was
unsuccessful. In this case, however, there is no evidence that claimant in fact
diligently sought employment within the jobs shown to be available.
>
The Board then affirmed the administrative law judge's computation of the
workers' average weekly wage under Section 10(c) of the Act. The Board noted the following:
We affirm the administrative law judge's finding that claimant's actual earnings as
a fully duty machinist in the year prior to his injury are a reasonable
representation of his annual earning capacity.
. . .
[A]lthough there is evidence that employer made accommodations for claimant
because of his post-surgical limitations and claimant was medically advised
earlier not to perform such exertions, he nonetheless performed this work
successfully for a significant period of time in 1993.
. . .
Inasmuch as the administrative law judge rationally found based on claimant's
successful performance of this work for a significant period that his earnings in
that job reasonably represented his annual earning capacity, we affirm that
determination and reject employer's arguments to the contrary. (citation omitted).
[ 8.2.4.2, suitable alternate employment; 10.4.5, calculation of
average weekly wage under Section 10(c) ]
