OFFICE OF ADMINISTRATIVE LAW JUDGES
UNITED STATES DEPARTMENT OF LABOR
MONTHLY DIGEST # 123
October 1995 - January 1996
A. Circuit courts of appeals
In Ingalls Shipbuilding, Inc. v. Director, OWCP
(Yates), 65 F.3d 460 (5th Cir. 1995), the Fifth Circuit
defined a "person entitled to compensation" completely
contra to the Ninth Circuit's opinion in Cretan v.
Bethlehem Steel Corp., 1 F.3d 843 (9th Cir. 1993), cert.
denied, ___ U.S. ___, 114 S. Ct. 2705 (1994). In
Yates, it was held that a widow who entered into a
settlement agreement prior to her husband's death, was not a
"person entitled to compensation" under Section
33(g)(1) and was, therefore, exempt from that subsection's
written approval requirement. The Fifth Circuit reasoned that,
at the time of the pre-death settlements, the claim for death
benefits of the then-wife (now widow), had not vested.
In Yates, the Fifth Circuit also held that Employer's
offset rights are limited to a credit under Section 33(f) for the
net amount received by Claimant (widow) since Claimant is the
"person entitled to compensation," and not her children
in the instant case. The resolution of this issue is in
accordance with Force v. Director, OWCP, 938 F.2d 981 (9th
Cir. 1991); I.T.O. Corp. of Baltimore v. Sellman, 967 F.2d
971 (4th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.
Ct. 1579 (1993).
[ 33.7.1, Circuit Quirks Within 33(g); 33.6, Employer
Credit for Net Recovery By "Person Entitled To
Compensation" ]
B. Benefits Review Board
In Kubin v. Pro-Football, Inc. d/b/a Washington
Redskins, 19 B.L.R. 1-__, BRB No. 92-0701 (Sept. 27,
1995)(published), a case arising under the District of Columbia
Workers' Compensation Act, Claimant sustained a back injury while
practicing for the Redskins in 1981 and continued to play
football until 1986 when he voluntarily retired after
experiencing a recurrence of back pain. Prior to the 1981
injury, he sustained several injuries playing college football.
The Board held that Claimant was entitled to the §
20(a) presumption "as it is undisputed that he sustained a
harm, a disabling back condition, and that an incident occurred .
. . while performing mandatory exercises for Employer which could
have caused the harm." Significantly, the Board held that
even where the record does not include any medical evidence
establishing a causal relationship between the disability and the
injury, Claimant prevails unless Employer submits evidence
sufficient to break the causal nexus.
In addition, the Board held that where a latent disability
surfaces "years after the initial injury," average
weekly wage may be calculated based on Claimant's earnings at the
time he is disabled rather than when his accident occurred.
Thus, where Claimant sustained an injury in 1981, but continued
to play football until his retirement in 1985 when his disability
became manifest, the administrative law judge properly calculated
Claimant's average weekly wage based upon his higher 1985
earnings. In so holding, the Board adopted the rule set forth in
Johnson v. Director, OWCP, 911 F.2d 247, (9th Cir. 1990),
that for purposes of calculating average weekly wage in traumatic
injury cases, the time of injury is when its disabling effects
become manifest. Similarly, The Board held that Claimant is
entitled to the statutory maximum compensation rate available at
the time his permanent partial disability award commenced, in
1986 rather than the rate in effect at the time of Claimant's
injury in 1981.
Finally, the Board upheld the administrative law judge's
denial of Section 8(f) relief on the grounds that Employer failed
to establish the pre-existing permanent partial disability
element of §8(f) entitlement, despite evidence of prior
injuries.
[ 20.2.1, Prima Facie Case; 8.7.3.2, Mere Fact of a
Previous Injury is Insufficient; Injury Must Produce
Serious lasting Problem; 10.1, Average Weekly Wage in
General; 10.1.1, Time of Injury; 6.2, Minimum and
Maximum Limits ]
