OFFICE OF ADMINISTRATIVE LAW JUDGES
UNITED STATES DEPARTMENT OF LABOR
MONTHLY DIGEST # 120
January - February 1995
Benefits Review Board
In Holmes v. Universal Maritime Service Corp., ___
B.R.B.S. ___, BRB No. 92-571 (Jan. 20, 1995), the Board held on
reconsideration that Employer rebutted the § 20(a)
presumption, that the employee's injury was work-related, upon
submission of a physician's report which "unequivocally
severed any relationship between claimant's present condition and
his 1979 symptoms." Indeed, the Board held that "[i]f
an employer submits substantial countervailing evidence to sever
the connection between the injury and the employment, the Section
20(a) presumption no longer controls and the issue of causation
must be resolved on the whole body of proof."
In so holding, the Board rejected arguments that the Supreme
Court's decision in Director, OWCP v. Greenwich Collieries, et
al., 114 S. Ct. 2251 (1994) affects Employer's burden under
§ 20(a), "As an employer may rebut the Section 20(a)
presumption only upon the production of specific and
comprehensive evidence severing the presumed causal connection,
its burden is unchanged by the decision in Greenwich
Collieries."
In Narvell v. Bethlehem Steel Corp., BRB No. 92-731
(Dec. 29, 1994)(unpublished), the Board remanded for
reconsideration of a modification request based upon an alleged
"change in condition," as the Board determined that the
district director's compensation order, which arose out of the
parties' stipulations, was simply an award of benefits based on
the agreement and stipulations of the parties, and was therefore
subject to modification under § 22. The Board stated that
the compensation order was not a § 8(i) settlement outside
the scope of modification under § 22 as the order "did
not provide for the complete discharge of employer's liability,
and did not contain any findings as to whether the compensation
awarded was adequate and not procured by duress as is required
under Section 8(i)... ." Id. at 3.
[ 8.10.8, § 22 modification, required elements of §
8(i) settlements; 22.2, inapplicability of § 22
modification to settlements ]
In Nelson v. Guy F. Atkinson Construction Co., ___
B.R.B.S. ___, BRB No. 91-1850 (Feb. 14, 1995), Claimant failed to
satisfy the situs requirement of § 3(a) where, at the time
of his injury, Claimant was preparing and excavating, through the
use of explosives, an area of dry land that would eventually
become a navigational lock. The Board held that the injury did
not occur on actual navigable waters; specifically, the fact that
the site of an injury will be under navigable water at some point
in the future does not render the site navigable at the time of
the injury. The Board also held that the injury did not occur on
an adjoining area as Claimant set forth no evidence that, the
site of the injury was used by an employer for maritime
activities. In the Ninth Circuit, where this claim arose, the
situs test is not met merely because the injury occurred adjacent
to water.
[ 1.6, situs "over water" and "over
land" ]
In White v. Peterson Boatbuilding Co., ___ B.R.B.S. ___,
BRB Nos. 89-0282, 89-0282A (Jan. 11, 1995), the Board held that
Claimant's failure to obtain Employer's prior approval of a
third-party malpractice settlement did not affect Employer's
liability under the Act for disability resulting from a work-
related injury. Specifically, after injuring his back while
working for Employer, Claimant was hospitalized during which time
Claimant was dropped by two nurses, causing him to suffer
incontinence, bowel and bladder problems, and impotence.
Claimant later settled a malpractice claim against the hospital,
and Employer suspended voluntary disability payments. In
affirming the administrative law judge's determination, the Board
stated that, because the third party settlement was based on the
injuries suffered in the hospital and was independent of the
benefits being claimed under the Act, the provisions of § 33
were not triggered.
[ 33.7.3, Employer's involvement in third-party settlements
]
In Krohn v. Ingalls Shipbuilding, Inc., ___ B.R.B.S. ___,
BRB No. 91-1744 (Dec. 28, 1994), the Board held that the
administrative law judge erred in awarding decedent's benefits to
the Special Fund based upon a finding that Claimant died and left
no statutory heirs. Specifically, the administrative law judge
concluded that Claimant was entitled to 15.62 weeks of
compensation for a 7.81% hearing impairment, and ordered that
Employer pay such compensation to the Special Fund. To the
contrary, the Board held that pursuant to § 8(d), which
mandates that "the total amount of the award unpaid at the
time of death shall be payable to or for the benefit of
(Claimant's) survivors," an employee has a vested interest
in benefits which accrue during his lifetime, and after his
death, his estate is entitled to those benefits, regardless of
when the award is actually entered.
In regard to a separate issue, the Board held that the district
director has the sole authority to excuse an untimely filing for
reimbursement of medical benefits pursuant to § 7(d)(2) of
the Act. Therefore, citing to Toyer v. Bethlehem Steel
Corp., ___ B.R.B.S. ___, BRB No. 90-989 (Nov. 14, 1994), the
Board remanded the case to the district director for a decision
regarding whether such a filing would be excused in this case.
[ 8.5, death benefits for survivors; 7.6,
reimbursement]
