Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 129
April 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
Benefits Review Board
In Plappert v. Marine Corps Exchange, ___ B.R.B.S. ___, BRB Nos.
96-776 and 96-1031 (Feb. 18, 1997), the Board held that, in a case involving a subsequent injury,
"employer is liable for the entire disability if the second injury is the natural and unavoidable
result of the first injury; however, where the second injury is the result of an intervening cause, the
employer is relieved of liability for that portion of the disability attributable to the second
injury." In such a case, the § 20(a) presumption is rebutted where the claimant's
disabling condition is caused by a subsequent, non work-related event.
The Board further held that, Section 8(j) of the Act requires that, upon
Employer's request for earnings information of a "disabled employee," Claimant is
obliged to submit such information "only for earnings during periods of disability, as those
would be the only periods during which an employee's earnings could affect employer's liability for
compensation." Therefore, the Board held that § 8(j) "does not bar claimant's
receipt of benefits in this case, as claimant's omissions from the earnings report, whether intentional
or not, involved earnings received prior to the claimed period of disability."
Finally, the Board held that an administrative law judge is without the
authority to review a discretionary act of the district director where Employer argued that it was not
liable for medical expenses because Claimant did not establish "good cause" before the
district director for failing to file a report of his first treatment within ten days of such treatment as
is required by
§ 7(d)(2) of the Act. However, the Board also held that the "district director has
been granted the general authority of overseeing medical care under Section 7 of the Act, . . . but that
authority does not extend to approving contested medical expenses." (emphasis in
original). Therefore, the Board determined that "[a]s employer contests its liability for two
medical bills, and as it is entitled to a hearing before an administrative law judge on contested issues,
the district director exceeded his authority in awarding payment of those contested bills."
[ 20.3.2, successful rebuttal of § 20(a) presumption; 8.12
submission of earnings report; 7.6 Employer's refusal to reimburse contested
medical expenses ]
In Lewis v. Sunnen Crane Service, Inc., ___ B.R.B.S. ___, BRB No.
96-0910 (Apr. 15, 1997), the Board held that whether Employer (and, therefore, Claimant) was
working on behalf of a consignee, rather than the port, is not determinative in evaluating whether
Claimant was engaged in the loading process for purposes of determining coverage.
The Board vacated the administrative law judge's finding of no jurisdiction
to reiterate its holding that coverage under the Act extends to land-based workers who, although not
actually unloading vessels at the moment of injury, are nevertheless involved in the intermediate
steps of moving cargo between ship and land transportation.
Claimant worked as a crane operator as well as an oiler, who assists the crane
operator. Upon consideration of whether Claimant was covered by the Act pursuant to § 2(3),
the administrative law judge relied upon the "point of rest" theory rejected by the United
States Supreme Court in Northeast Marine Terminal v. Caputo, 432 U.S. 249 (1977) to
conclude that Claimant was not covered based upon the work he was performing at the time of his
injury. Specifically, the judge held that, because the unloading process had been completed by the
time Claimant started working, the goods moved by Employer's crane had left the stream of maritime
commerce. The Board vacated this finding and concluded that the goods were still in the stream of
commerce.
In so holding, the Board differentiated between the Fifth Circuit's
"moment of injury" test, where a claimant is automatically covered if s/he is injured
while engaged in longshore employment, and the Board's own position which emphasizes a
claimant's overall employment to provide continuous coverage. In particular, the Board held that
work cannot be considered "episodic" when it is part of an employee's regular job
assignments.
