Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 126
September - October 1996
Benefits Review Board
In Abbey v. Navy Exchange, ___ B.R.B.S. ___, BRB No. 93-0819
(Sept. 10, 1996), the Board noted that § 702.321(b)(3) requires that the Director, Office of
Workers' Compensation Programs, as "the guardian of the Special Fund," raise and
plead the absolute defense that Employer waived its claim for § 8(f) relief for failure to
timely file an application. The Board concluded that the Director's obligation in this regard was
not "satisfied by the district director's statement of the defense in a referral letter."
Rather, the Director must specifically plead the defense before the administrative law judge on
his own behalf.
[ 8.7.9.2, Director must affirmatively plead § 8(f) defense
]
In Trice v. Virginia International Terminals, Inc., ___ B.R.B.S.
___, BRB Nos. 93-1154 and 93-1154A (Sept. 23, 1996), the Board held that container royalty
payments received by Decedent should have been included in the calculation of his average
weekly wage "since container royalty payments (were) made pursuant to the collective
bargaining agreement between (the shipping and longshore associations), and (were) taxable
income, . . .." Moreover, under § 14(j) of the Act, the Board reiterated that
"where a union contract does not specifically provide that vacation and holiday payments
are intended in lieu of compensation, an employer is not entitled to a credit for vacation and
holiday payments" against the compensation owed. Finally, the Board stated that the
Decedent-Claimant was entitled to cost of living adjustments under
§ 10(f) "only during periods of permanent total disability, not temporary total
disability."
[ 14.6.3, commutation of benefits under § 14(j); 10.7.1, cost
of living increase under § 10(f) ]
In Lewis v. Todd Pacific Shipyards Corp., ___ B.R.B.S. ___, BRB
No. 93-0661 (Sept. 12, 1996), the Board upheld an administrative law judge's finding that the
claim was timely filed under §§ 12 and 13 of the Act as the time period for filing did
not commence to run where Claimant was "advised by a physician in 1983 of the
possibility' that he had a work-related lung disease." Due to the inconclusive nature of the
physician's opinion, Claimant "was not aware nor should he have been aware (that he had
an occupational disease) at any time prior to the fall of 1988, when Dr. Barnhart diagnosed . . .
asbestos-related pleural disease,' that he had an employment-related lung condition." With
regard to the issue of responsible employer in occupational disease cases, the Board reiterated
that "the last employer to expose the employee to injurious stimuli prior to his awareness
of
his occupational disease is liable for compensation." In this vein, the Board held that
"Employer bears the burden of demonstrating that it is not the responsible employer, which
it can do by establishing that claimant was exposed to injurious stimuli while performing work
covered under the Act for a subsequent employer."
In addition, the Board upheld the administrative law judge's refusal
to reopen the record based upon the change in law contained in the United States Supreme
Court's decision in Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469 (1992)where the party "waited more than three months after . . . issuance (of Cowart)
and until after the administrative law judge's adverse decision before attempting to raise the
applicability of Section 33(g)(1) in light of Cowart." Under § 702.336, the
Board noted that a new issue may be raised "only prior to the issuance of the
administrative
law judge's decision." Finally, in awarding an attorney's fee, the Board held that counsel's
request of $150.00 per hour was reasonable as was his request for $40.00 per hour for the
services of his legal assistant.
[ 12.3.2, notice of occupational disease injury under § 12; 13.1,
timeliness of filing in occupational disease claim; 28.6.1, hourly rate in
attorney fee award; 19.02, reopening the record ]
In Meardry v. International Paper Co., ___ B.R.B.S. ___,
BRB Nos. 93-1693 and 93-1693A (Sept. 12, 1996), the Board held that an employee who
regularly unloaded barges was covered under § 2(3) of the Act. Moreover, the Board held
that it was proper for the administrative law judge to credit "claimant's testimony that he
was exposed to loud noises while working at employer's barge facility and that he was not
furnished any ear protection." Although Employer asserted that "noise
studies"
revealed that the barge area in which Claimant worked "was not considered a high noise
area,'" the Board concluded that Employer "failed to establish the noise levels of the
barge area, and thus did not demonstrate that claimant suffered no exposure to industrial noise
while working in the barge operations." In addition, the Board held that "Claimant's
arguably greater exposure to noise while working elsewhere in the non-maritime' sections of the
mill does not undermine the administrative law judge's finding that claimant was injured on a
covered situs." Finally, the Board reiterated that Claimant was entitled to interest on
unpaid benefits as of the date they became due under § 14(b) of the Act, which is the date
the "employer has knowledge of the work-related injury, or notice of such injury pursuant
to Section 12."
[ 14.1, interest on unpaid benefits under § 14(b) ]
In Ehrentraut v. Sun Ship, Inc., ___ B.R.B.S. ___, BRB
No. 93-1600 (Sept. 12, 1996), the Board held that the judicially created "manifest
requirement" for § 8(f) relief must be proven in post-retirement occupational disease
cases. In satisfying this burden, however, the Board noted the following:
[I]n a traumatic injury case(), a pre-existing permanent partial disability manifest
prior to the second injury is also manifest during employment. However, the Act
as amended in 1984 also provides for compensation for occupational diseases,
including those which become manifest only after an employee has retired
(citations omitted). Inasmuch as the standard stated by the courts provides for
manifestation of a prior permanent partial disability prior to the second injury, we
will not impose an extra rule or special requirement in occupational disease cases.
Requiring a pre-existing disability to be manifest prior to the last date of
employment or the last date of exposure to harmful stimuli, would, in cases such
as this, create a hurdle over which employers often could not bound, and we
decline to erect such a barrier without compelling reasons.
The Board then concluded that, in occupational disease cases, "in
order to be entitled to Seciton 8(f) relief an employer must establish that the pre-existing
disability was manifest prior to the work-related second injury." In so holding, the Board
stated that, to the extent that its conclusions in Harris and Dubar v. Bath Iron Works
Corp., 25 B.R.B.S. 5 (1991), to the extent that they differ, are overruled.
In Henderson v. Ingall Shipbuilding, Inc., ___ B.R.B.S.
___, BRB No. 93-1334 (Sept. 12, 1996), the Board cited to Fifth Circuit case law to state that,
under § 33(f), "the employer is entitled to credit only the net amount received from
post-death third-party settlements by the widow, and not the net amounts received from
post-death third-party settlements by the non-dependent children." Moreover, the Board
held
that Employer bears the burden of proof regarding apportionment of third-party settlements. The
Board also determined that notwithstanding the fact that "provisions contained in the
post-death settlement releases provide a contractual basis for allowing employer to offset the net
amount of the recoveries of both claimant and the non-dependent children," the provisions
did "not clearly indicate an intent to grant employer a credit against any larger portion of
the settlement amount than would be subject to a compensation lien, and, second, that a
compensation lien would be imposed on only the settlement proceeds received by the widow
inasmuch as she was the only party to the settlement who was entitled to compensation."
Finally, with regard to pre-death settlements entered into by Claimant and Decedent, the Board
cited Fifth Circuit law to state that Claimant's right to death benefits had not, at that time, vested such that she was not "a person entitled to
compensation" under the Act for purposes of § 33(f) and, therefore, Employer was
not entitled to "an offset against claimant's death benefits for the pre-death settlement
recoveries."
[ 33.6.1, Employer credit for pre- and post-death settlements under §
33(f); 33.6.2, apportionment ]
In Ljubic v. United Food Processors, ___ B.R.B.S. ___,
BRB Nos. 93-1949 and 93-2255 (Sept. 11, 1996), the Board held that, where a worker spent
forty
percent of his time in "[t]he repair and maintenance of docks and unloading
equipment" his injury, which occurred when he fell off of a ladder while repairing the roof
of Employer's building, was covered under the Act as "a claimant cannot walk in and out
of
coverage." Moreover, the Board upheld the administrative law judge's finding that the
employee was not an "aquaculture worker" under § 2(3)(E) because he
"was not employed exclusively to repair fish processing,
cleaning and canning equipment and buildings, notwithstanding that he was employed by a
cannery."
[ 1.8, maritime employment and coverage under the Act ]
In Dominey v. ARCO Oil and Gas Co., ___ B.R.B.S. ___,
BRB No. 94-2471 (Aug. 20, 1996), the Board reiterated that, in order to be entitled to §
8(f) relief, Employer must demonstrate that "a claimant's total disability was caused by
both the work injury and the pre-existing condition." The Board then held that it was
proper for the administrative law judge to divide " disability' into economic' and physical'
elements" to conclude that Employer need not establish that Claimant's
"economic" disability was due to the work-related injury alone in order to be entitled
to § 8(f) relief.
[ 8.7.6, relief under § 8(f) -- physical, not economic, disability must be
due to pre-existing condition combined with work-related injury ]
