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DISCLAIMER: The Longshore Benchbook was created solely to assist the Office of Administrative Law Judges as a first reference in researching cases arising under the Longshore and Harbor Workers' Compensation Act, and extension acts, as amended. This Benchbook does not constitute the official opinion of the Department of Labor, the Office of Administrative Law Judges, or any individual judge on any subject. This Benchbook does not necessarily contain an exhaustive or current treatment of case holdings, and should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any given subject referred to therein. It is intended to be used as a research tool, not as final legal authority and should not be cited or relied upon as such.
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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.
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.
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.]
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."
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.
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.
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).
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…."
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) (5th
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 (9th 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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