John M. Vittone
Chief Judge

Thomas M. Burke
Associate Chief Judge

I. Longshore

   A. Circuit courts of appeals

Newport News Shipbuilding and Dry Dock Co., Case No. 99-2356 (4th Cir. Apr. 24, 2000)(unpublished).

   In the instant case, Newport News sought reconsideration of the ALJ's order awarding benefits because it alleged that it was unaware of the fact the case had been assigned to a different ALJ on remand from the circuit court. Newport News asserted that it never received notice of the reassignment of the case despite the fact that notice was served at the correct address to the attorney of record as shown in the administrative file at OALJ. After reviewing the record and the ALJ's order denying reconsideration, the circuit court found that it could discern no reversible error on the part of the ALJ. The circuit court stated that Newport News failed to demonstrate how the ALJ's determination [that notice delivered to the correct address was sufficient to warn Newport News of the potential waiver of their right to a hearing] rendered her refusal to grant reconsideration contrary to the law.

[Topic 19.3.6 Procedure Formal Hearing]

   B. Benefits Review Board Decisions

Alexander v. Triple A Machine Shop, ___ B.R.B.S. ____, BRB Nos. 99-0763 and 99-0763A (Apr. 20, 2000).

   This matter has been appealed to the Board and Circuit court on numerous times. In the latest version, Claimant challenged the ALJ's award of credit to Employer for the settlement monies paid to Claimant by other longshore employers. Agreeing with the Employer, the Board found the "law of the case " doctrine to be in effect and thus, the Board's prior determination that Employer is entitled to a credit for settlement monies paid to Claimant by other longshore employers for the same disability, as a matter of law, constitutes the law of the case.

   Employer challenged the ALJ's utilization of the Third Edition of the AMA Guides in determining the extent of Claimant's respiratory impairment as of 1983 inasmuch as the standards contained in that edition were not in effect at the time the pulmonary function studies were administered in 1983. [Employer conceded that the ALJ correctly used the Third Edition of the AMA Guides in determining the extent of Claimant's respiratory impairment as of June 13, 1989, but averred that the fact that the Third Edition is the appropriate edition to use in determining impairment in 1989 does not mean that its use is appropriate in determining the extent of Claimant's impairment in 1983.]

   Rejecting the Employer's contention, the Board affirmed the ALJ's finding. "In cases involving voluntary retirees [such as this one], the [LHWCA] requires impairment ratings to be based on medical opinions using the criteria contained within the AMA Guides. Section 2(10) defines the term "disability" with respect to claims for permanent partial disability under Section 8(c)(23) by voluntary retirees as "permanent impairment, determined (to the extent covered thereby) under the guides to the evaluation of permanent impairment promulgated and modified from time to time by the American Medical Association,..." (Underscoring by the Board.)

[Topic 85.5 Law of the Case Doctrine; Topic 2.2.13 Definitions Occupational Diseases: General Concepts; Topic 8.13.1 Hearing Loss Introduction and General Concepts]

Turk v. Eastern Shore Railroad, Inc., ___ B.R.B.S. ___, BRB No. 99-938 (Apr. 13, 2000).

   In this matter Employer challenged Claimant's coverage (both situs and status) under the LHWCA. Employer owns rail yards on the Virginia Eastern Shore and Norfolk area. Trains needing to cross the Chesapeake Bay traverse it via barges. In order to get a train onto a barge, the trainmen uncouple the cars, attach them to"reach cars" and push the cars with a locomotive over a "float bridge." [Reach cars are empty rail cars that are light enough to roll onto the float bridge and long enough to cross the float bridge to push or pull the revenue-producing cars onto or off of the barge. They extend the reach of the locomotive, as the locomotives are too heavy for the float bridge. The float bridge is a structure which is hinged to the shore, is approximately 80 to 100 feet long, and has four tracks which align with those on the barge, allowing rail cars to pass between the land and the barge. The float bridge is supported by a pontoon which can be raised or lowered depending on the barge level and the tide.]

   In order to get a train onto a barge, the trainmen uncouple the cars, attach them to the reach cars and push them with a locomotive over the float bridge. Jobs that also must be performed by trainmen when a barge is about to arrive or depart include: pinning the barge to the float bridge, releasing or setting brakes and wheel chocks on the train cars, shifting the train cars around the yard, coupling and uncoupling rail cars, hooking and unhooking hoses, and operating the float bridge.

   Claimant, who was called to work every time a barge came in, was performing his duties as a trainman when he was injured. Specifically, he was preparing to operate the hydraulic cylinder on the float bridge when, in attempting to compensate for its damaged condition by trying to insert a pin into the mounting to secure the cylinder, he lost his footing and wrenched his back. The ALJ found that the float bridge, which extends over navigable waters, resembles a pier because barges dock there. Thus he found situs. Next he determined that Claimant satisfied the status requirement because Claimant performed maritime employment in that he performed tasks integral to the loading and unloading process.

   Employer first contended that Claimant was a railroad worker, rather than a maritime employee, and therefore should not be covered by the LHWCA. The Board specifically noted that "The mere fact that employer operates a railroad does not prevent its rail yard from being a covered situs under the LHWCA."

   Similarly, Employer argued that the barge and the float bridge combine to form a very unique railroad bridge between its two facilities and that the float bridge should not be considered a covered situs under the LHWCA because it is part of the operations of a railroad. In affirming the ALJ, the Board stated that it believed the definition of "pier" set forth in Hurston v. Director, OWCP, 989 F.2d 1547, 26 B.R.B.S. 180(CRT) ((th Cir. 1993), is broad enough to encompass a structure such as the float bridge herein." Employer had argued that Hurston required a pier to be built on pilings. However, the Board noted that Hurston also stated that the question of whether a structure is covered is a factual one "which depends on the structure's appearance and location." The structure in the instant case, on pontoons, not pilings, extends out from land over the navigable waters and connects to the land by hinges, much like a floating dock or pier.

   The Board also rejected Employer's argument that a pier must be "customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel" as being contrary to the grammatical structure of the sentence in the LHWCA. It noted that neither the Supreme Court nor the Fourth Circuit has specifically determined whether areas enumerated in Section 3(a) are qualified by the phrase "customarily used" as are non-enumerated areas. It further noted that both courts have indicated that the purpose of the 1972 amendments was to expand coverage landward and that reading the statute to require a functional analysis of enumerated areas might not accord to that purpose.

   Significantly, the Board also stated that "Even absent the analogy with a pier, the float bridge would be a covered situs since Section 3(a) states that an area is covered if it is an "other adjoining area customarily used by an employer in loading, unloading, [etc.]" The float bridge directly abuts the Chesapeake Bay, and its raison d'etre is as a juncture between land and water transportation.

   As to status, Employer argued that Claimant's duties were railroading functions, performed by trainmen anywhere: he did not load and unload cargo; rather, he coupled and uncoupled trains. In rejecting this argument the Board stated, "While we agree that claimant performed railroading functions, and his duties of releasing and setting brakes and wheel chocks or of moving rail cars are common among trainmen, we are persuaded that, as very few trainmen assist in the docking process by pinning barges to a float bridge or by operating a hydraulic float bridge which sits on a navigable body of water to move train cars about, claimant's duties also include maritime activities Even employer itself admitted its method of transporting rail cars across a body of water is unique."

[Topics 1.6 Situs; 1.7 Status]

Gilliland v. E.J. Bartells Co., Inc., ___ B.R.B.S. ___, BRB Nos. 99-698 and 99-698A (Apr. 5, 2000).

   In this Section 33 claim, Employer approved the third party settlements. However, the parties could not resolve their differences with regard to the computation of Employer's offset of compensation against both the annuity portion of the third party settlement and the recovery by the dependent children. The ALJ found that the term "net income" in Section 33(f) of the LHWCA means the income "actually received." Thus, he concluded that the value of the annuity for purposes of Employer's offset must be based upon the actual monthly annuity 's present value. The ALJ also found that the amounts received by the decedent's children under the third-party settlement are excluded from employer's offset.

   Claimant contended that the ALJ erred in offsetting Employer's liability for benefits against the actual value of the monthly payments of the annuity rather than offsetting its liability against the present value of the annuity when it was purchased. Claimant argued that the present value of the annuity [when purchased] is the amount on which Employer based its approval of the third-party settlement, and she also questioned Employer's entitlement to a credit against the interest included in the annuity payments, as it would not be permitted to take a credit against any interest she would have earned by investing a lump sum payment. However, the ALJ found that the term "net income" in Section 33(f) of the LHWCA means the income "actually received." Thus, he concluded that the value of the annuity for purposes of employer's offset must be based upon the actual monthly annuity payments Claimant receives, as the LHWCA does not provide for a reduction of the annuity to its present value.

   In Cretan v. Bethlehem Steel Corp., 24 B.R.B.S. 35 (1990), aff'd in part and rev'd in part, 1 F.3d 843, 27 B.R.B.S. 93 (CRT) (9th Cir. 1993), cert. denied, 512 U.S. 1219 (1994), the Board addressed the application of a present value factor to an annuity to determine the employer's credit against the third-party settlements. Specifically, the Board rejected the Cretans' assertion that the ALJ correctly reduced the annuity to its present value, concluding that the LHWCA does not provide for such a calculation. The Board stated in Cretan, that instead, the employer was entitled to an offset in the amount of the lump sum payment, plus a "continuing credit" based on the actual payments made each month to the claimant. Importantly, in this case the Board noted that, although the Ninth Circuit's decision in Cretan was overruled by Ingalls Shipbuilding, Inc. v. Director, OWCP [Yates], 519 U.S. 248, 31 B.R.B.S. 5 (CRT) (1997), neither court addressed the portion of the Board's decision relevant to the instant case.

   The Board's Cretan decision was based on its decision in Maples v. Textports Stevedores Co., 23 B.R.B.S. 302, aff'd sub nom. Textports Stevedores Co. v. Director, OWCP, 931 F.2d 331, 28 B.R.B.S. 1 (CRT) (5th Cir.1991)(credit computation is made on a dollar-for-dollar basis; a reduction to present value of the compensation to be paid was not authorized by the plain language of the LHWCA.).

   Noteworthy are two assertions by the Director. First, the Director asserts that the most compelling reason for not using the present value method is to protect claimants. If the credit is taken only as the money is actually received, the risk for non-payment by the annuity company is placed on the employers and not on the claimants: i.e., if the credit is taken from the purchase price, the employer is free from liability from that point until the credit is expended, whereas, if the credit is taken against each payment, non-payment by the annuity company acts to reinstate the employer's liability sooner. Thus, claimants are protected from risk of loss and there will be no under compensation. Second, the Director [as well as Employer] also notes that the Employer based its approval of the third-party settlement on the entire package, including the schedule of payments, and not just on the cost of the annuity.

   Thus, the Board affirmed the ALJ's determination that Employer's offset against Claimant's third-party settlement under Section 33(f) is to be made on a dollar-for-dollar basis. Consequently, it was proper for him to conclude that Employer has a continuing credit against the amount Claimant receives under the annuity each month rather than require the annuity to be reduced to its present value at the time of the third-party settlement.

   In the instant case Employer also appealed the ALJ's decision to exclude all third-party proceeds received by decedent's children from the computation of employer's credit under Section 33(f). Employer contended that it is entitled to an offset of an additional $30,000 ($15,000 per each then-dependent child) and that the ALJ misapplied the Ninth Circuit's ruling in Force by failing to differentiate between dependent and non-dependent children. Instead of individual apportionment, employer asserts that its offset against its liability to Claimant should be computed using an "aggregate" method because apportionment serves no purpose when everyone involved is a person entitled to compensation under the LHWCA.

   The Board stated, "While we agree that this "net amount" properly includes the $30,000 paid to the two dependent children, we hold that employer, in this case, has waited too long to obtain its Section 33(f) credit against those fund." The Board noted that the decision in Force provides that an employer may offset its liability to a particular claimant only against third-party proceeds received by that claimant. Specifically, the Board stated that this portion of the Ninth Circuit's decision in Force was not affected by the Supreme Court's decision in Yates and is still good law. "Had employer sought a credit against their third-party recovery while they were still receiving compensation, there is no question that employer would have been entitled to a credit against the daughters' benefits. As decedent's daughters are no longer receiving benefits under the [LHWCA,] employer's only continuing obligation is to claimant. Allowing an offset for the daughters' recoveries against claimant's entitlement would run counter to the established case law explicitly allowing an offset against compensation due for the proceeds apportioned only to that person entitled to compensation."

   Thus, the Board continues to hold that the individualized apportionment method is to be used to determine an employer's credit under Section 33(f). If an employer fails to take its Section 33(f) credit during a period when it is liable for compensation to that claimant, it may not seek reimbursement retroactively out of benefits due another claimant.

[Topic 33.6 Employer Credit for Net Recovery; Topic 33.6.2 Apportionment]

O'Kelley v. Department of the Army/NAF, ____ B.R.B.S. ____, BRB No. 99-0810 (May 2, 2000).

   The main issue in this matter involves causation and invocation of the Section 20(a) presumption and whether or not it was rebutted. Claimant, who suffered from polio during his early childhood, was employed as the superintendent of the Follow Me Golf Course at Fort Benning, Georgia from 1980 through June 22, 1995. During his tenure he was responsible for determining the need for and directing the application of numerous insecticides, herbicides, and fungicides. As a result of these employment duties, Claimant, who was not issued protective clothing until sometime during 1987-1988, was exposed to fumes during the preparation and application of these materials. During his period of employment, Claimant experienced dizziness and instability while walking, as well as coughing, speech difficulties, and a worsening in the pulling of his facial muscles.

   The ALJ determined that Employer failed to rebut the Section 20(a) presumption. The ALJ further found that Claimant's work-related exposures aggravated his current neurological disorder. Employer challenged the invocation of the Section 20(a) presumption as well as whether or not it has been rebutted.

   Employer does not dispute that Claimant has suffered a harm, i.e., a neurological condition, and that Claimant presented evidence of his exposure to pesticide fumes during his employment. Rather, Employer challenges invocation of the presumption on the grounds that no credible evidence exists that Claimant's exposure to pesticides could have caused his current neurological condition. However, the ALJ specifically set forth the testimony of Dr. Dawkins, who opined that Claimant's chemical exposures aggravated his neurological condition and the ALJ noted that Employer's expert, Dr. Gerr, conceded that Claimant had been exposed to some pesticides and chemicals that can cause some symptoms similar to those which Claimant described. Thus the Board upheld the ALJ's invocation of the presumption.

   Next the Board addressed the rebuttal issue. It noted that where aggravation of a pre-existing condition is at issue, an employer must establish that work events neither directly caused the injury nor aggravated the pre-existing condition resulting in injury. In establishing rebuttal of the presumption, however, proof of another agency of causation is not necessary. Rather, the testimony of a physician that no relationship exists between an injury and a claimant's employment is sufficient to rebut the presumption.

   The ALJ found that while Dr. Gerr opined within a reasonable degree of medical certainty that Claimant's present medical condition was neither caused nor contributed to by his exposure to chemicals while working for employer, the doctor conceded on cross- examination that it was possible that Caimant's condition is work-related. Additionally, the ALJ noted that Dr. Gerr offered no opinion as to the cause of Claimant's condition present condition. The ALJ thus concluded that since Dr. Gerr could neither "rule our" the possibility that Claimant's condition is work-related nor determine the cause of Claimant's ailments, his testimony was insufficient to rebut the presumption. However, siding with the Employer, the Board found that the ALJ erred in concluding that the testimony of Dr. Gerr was insufficient to establish rebuttal.

   The Eleventh Circuit, within whose jurisdiction the instant claim arises, has espoused a "ruling out" standard when addressing the issue of rebuttal of Section 20(a). This circuit adheres to the line of cases that the LHWCA places on an employer the duty of rebutting the Section 20(a) presumption with evidence that the employee's employment neither caused nor aggravated his harm. Under this line, where none of the physicians of record expresses an opinion ruling out a causal connection, the circuit has previously determined that there was no direct concrete evidence sufficient to rebut the presumption.

   In the instant case, the Board found that Employer has met its burden of rebuttal. The Board noted that an employer is not required to establish another agency of causation in order to rebut the Section 20(a) presumption. The Board noted that a review of Dr. Gerr's reports and hearing testimony reveals that he stated unequivocally that Claimant's work- related chemical exposures did not cause, contribute to, or aggravate his present medical condition. Dr. Gerr stated at all times that his opinion regarding the lack of a causal nexus was rendered within a reasonable degree of medical certainty. The Board found that Dr. Gerr's admission on cross-examination of a possible causal connection between Claimant's employment and his present medical condition, Dr. Gerr's statement regarding "possibilities" reflects his opinion that in the medical profession there is no absolute certainty. This acknowledgment, according to the Board, does not render his opinion equivocal, as Dr. Gerr repeatedly expressed his opinion that no causal relationship exists between Claimant's present condition and his employment with Employer. Thus, the Board held that Employer has produced evidence sufficient to sever the causal relationship between Claimant's employment and his harm. "To hold otherwise,..., would raise the standard regarding rebuttal of the presumption to an unreasonable level since, as Dr. Gerr implied during his hearing testimony, 'absolute certainty' is a difficult concept in the medical profession."

[Topic 20.2.4 ALJ's Proper Invocation of Section 20(a); Topic 20.3 Employer has Burden of Rebuttal]

Plourde v. Bath Iron Works Corp., ____ B.R.B.S. ____, BRB No. 99-836 (May 9, 2000).

   In the instant case, the Board reversed the ALJ's application of the doctrine of collateral estoppel. Under the principle of collateral estoppel, a party is barred from re- litigating an issue decided in prior litigation if: (1) the issues at stake are identical in both cases; (2) the issue was actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation was a critical and necessary part of the judgment in the earlier action. In order for collateral estoppel effect to be given to a court's finding by an ALJ deciding a claim under the LHWCA, the same legal standards must be applicable in both forums.

   In the instant case, Employer paid Claimant total disability benefits under the Maine Workers' Compensation Act. Subsequently the Maine Workers' Compensation Board reduced Claimant's benefits to 75 percent of his average weekly wage, based on a finding that Claimant had some residual work capacity. Claimant then filed a claim under the LHWCA seeking permanent total disability. While noting that the general definition of "disability" appears to be similar under the state and federal schemes, the Board found that the allocations of burdens of production and proof differ materially under the two schemes.

   Under the Maine scheme, either the employer or the worker may petition for a review of incapacity (i.e. total disability) previously determined by degree or agreement, on the ground that the claimant's incapacity has subsequently been increased, diminished or eliminated. Employer-movant must establish through medical evidence that the employer has regained the physical capacity to perform some work. The state law requires the employer to show initially only that the claimant is no longer physically totally disabled and has acquired an earning capacity based, in most case, solely on medical evidence.

   The ALJ found the state and LHWCA substantially the same because Employer first must show Claimant's ability to return to work. The Board found that this burden under the state law is not comparable to Employer's burden under the LHWCA. Once a claimant has shown his inability to return to his usual work under the LHWCA, the burden shifts to the employer to establish the availability of suitable alternate employment. It is manifestly insufficient under the LHWCA for the employer to show merely that the claimant has some capacity to work or that the claimant can perform certain tasks. The employer must show the realistic availability of actual jobs that the claimant can perform in order to meet its burden of establishing the availability of suitable alternate employment under the LHWCA. The employer's initial burden under the Maine Act, that of coming forward with nothing more than medical evidence evincing an ability to work, therefore is significantly lighter than that required under the LHWCA (to meet its burden of establishing suitable alternate employment under the LHWCA, employer must provide evidence of actual positions, either at its facility or on the open market, that claimant can perform, given his age, education, vocational background and physical restrictions).

   In addition the Board found that the state burden on a claimant is greater than that required under the LHWCA Under the Maine law, once the employer establishes a claimant's physical capacity to work, the claimant must show that work is unavailable to him within his restrictions in order to retain total disability benefits or to obtain a large partial disability award. Although a claimant under the LHWCA bears a complementary burden of establishing reasonable diligence in attempting to secure alternate employment, this burden does not arise until employer's burden of establishing suitable alternate employment is satisfied.

   In the instant case, the Maine Board found that Claimant herein did not meet his burden of production on the work search issue. Under the LHWCA, however, this burden would not arise in the absence of credited evidence of suitable alternate employment.

   The Board concluded, "As employer's burden of establishing suitable alternate employment under the [LHWCA] is greater than its burden of establishing claimant's ability to work under the state act, and as claimant bore a higher burden of establishing his inability to perform any work under state law than that required under the [LHWCA], we reverse the [ALJ's] finding that collateral estoppel effect must be given to the state determination."

[Topic 85.2 Effect of Prior State Proceeding on a Subsequent Federal Claim]

Turk v. Eastern Shore Railroad, Inc., ___ B.R.B.S. ___, BRB No. 99-938 (Apr. 13, 2000).

   In this matter Employer challenged Claimant's coverage (both situs and status) under the LHWCA. Employer owns rail yards on the Virginia Eastern Shore and Norfolk area. Trains needing to cross the Chesapeake Bay traverse it via barges. In order to get a train onto a barge, the trainmen uncouple the cars, attach them to"reach cars" and push the cars with a locomotive over a "float bridge." [Reach cars are empty rail cars that are light enough to roll onto the float bridge and long enough to cross the float bridge to push or pull the revenue-producing cars onto or off of the barge. They extend the reach of the locomotive, as the locomotives are too heavy for the float bridge. The float bridge is a structure which is hinged to the shore, is approximately 80 to 100 feet long, and has four tracks which align with those on the barge, allowing rail cars to pass between the land and the barge. The float bridge is supported by a pontoon which can be raised or lowered depending on the barge level and the tide.]

   In order to get a train onto a barge, the trainmen uncouple the cars, attach them to the reach cars and push them with a locomotive over the float bridge. Jobs that also must be performed by trainmen when a barge is about to arrive or depart include: pinning the barge to the float bridge, releasing or setting brakes and wheel chocks on the train cars, shifting the train cars around the yard, coupling and uncoupling rail cars, hooking and unhooking hoses, and operating the float bridge.

   Claimant, who was called to work every time a barge came in, was performing his duties as a trainman when he was injured. Specifically, he was preparing to operate the hydraulic cylinder on the float bridge when, in attempting to compensate for its damaged condition by trying to insert a pin into the mounting to secure the cylinder, he lost his footing and wrenched his back. The ALJ found that the float bridge, which extends over navigable waters, resembles a pier because barges dock there. Thus he found situs. Next he determined that Claimant satisfied the status requirement because Claimant performed maritime employment in that he performed tasks integral to the loading and unloading process.

   Employer first contended that Claimant was a railroad worker, rather than a maritime employee, and therefore should not be covered by the LHWCA. The Board specifically noted that "The mere fact that employer operates a railroad does not prevent its rail yard from being a covered situs under the LHWCA."

   Similarly, Employer argued that the barge and the float bridge combine to form a very unique railroad bridge between its two facilities and that the float bridge should not be considered a covered situs under the LHWCA because it is part of the operations of a railroad. In affirming the ALJ, the Board stated that it believed the definition of "pier" set forth in Hurston v. Director, OWCP, 989 F.2d 1547, 26 B.R.B.S. 180(CRT) ((th Cir. 1993), is broad enough to encompass a structure such as the float bridge herein." Employer had argued that Hurston required a pier to be built on pilings. However, the Board noted that Hurston also stated that the question of whether a structure is covered is a factual one "which depends on the structure's appearance and location." The structure in the instant case, on pontoons, not pilings, extends out from land over the navigable waters and connects to the land by hinges, much like a floating dock or pier.

   The Board also rejected Employer's argument that a pier must be "customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel" as being contrary to the grammatical structure of the sentence in the LHWCA. It noted that neither the Supreme Court nor the Fourth Circuit has specifically determined whether areas enumerated in Section 3(a) are qualified by the phrase "customarily used" as are non-enumerated areas. It further noted that both courts have indicated that the purpose of the 1972 amendments was to expand coverage landward and that reading the statute to require a functional analysis of enumerated areas might not accord to that purpose.

   Significantly, the Board also stated that "Even absent the analogy with a pier, the float bridge would be a covered situs since Section 3(a) states that an area is covered if it is an "other adjoining area customarily used by an employer in loading, unloading, [etc.]" The float bridge directly abuts the Chesapeake Bay, and its raison d'etre is as a juncture between land and water transportation.

   As to status, Employer argued that Claimant's duties were railroading functions, performed by trainmen anywhere: he did not load and unload cargo; rather, he coupled and uncoupled trains. In rejecting this argument the Board stated, "While we agree that claimant performed railroading functions, and his duties of releasing and setting brakes and wheel chocks or of moving rail cars are common among trainmen, we are persuaded that, as very few trainmen assist in the docking process by pinning barges to a float bridge or by operating a hydraulic float bridge which sits on a navigable body of water to move train cars about, claimant's duties also include maritime activities Even employer itself admitted its method of transporting rail cars across a body of water is unique."

[Topics 1.6 Situs; 1.7 Status]

Gilliland v. E.J. Bartells Co., Inc., ___ B.R.B.S. ___, BRB Nos. 99-698 and 99-698A (Apr. 5, 2000).

   In this Section 33 claim, Employer approved the third party settlements. However, the parties could not resolve their differences with regard to the computation of Employer's offset of compensation against both the annuity portion of the third party settlement and the recovery by the dependent children. The ALJ found that the term "net income" in Section 33(f) of the LHWCA means the income "actually received." Thus, he concluded that the value of the annuity for purposes of Employer's offset must be based upon the actual monthly annuity 's present value. The ALJ also found that the amounts received by the decedent's children under the third-party settlement are excluded from employer's offset.

   Claimant contended that the ALJ erred in offsetting Employer's liability for benefits against the actual value of the monthly payments of the annuity rather than offsetting its liability against the present value of the annuity when it was purchased. Claimant argued that the present value of the annuity [when purchased] is the amount on which Employer based its approval of the third-party settlement, and she also questioned Employer's entitlement to a credit against the interest included in the annuity payments, as it would not be permitted to take a credit against any interest she would have earned by investing a lump sum payment. However, the ALJ found that the term "net income" in Section 33(f) of the LHWCA means the income "actually received." Thus, he concluded that the value of the annuity for purposes of employer's offset must be based upon the actual monthly annuity payments Claimant receives, as the LHWCA does not provide for a reduction of the annuity to its present value.

   In Cretan v. Bethlehem Steel Corp., 24 B.R.B.S. 35 (1990), aff'd in part and rev'd in part, 1 F.3d 843, 27 B.R.B.S. 93 (CRT) (9th Cir. 1993), cert. denied, 512 U.S. 1219 (1994), the Board addressed the application of a present value factor to an annuity to determine the employer's credit against the third-party settlements. Specifically, the Board rejected the Cretans' assertion that the ALJ correctly reduced the annuity to its present value, concluding that the LHWCA does not provide for such a calculation. The Board stated in Cretan, that instead, the employer was entitled to an offset in the amount of the lump sum payment, plus a "continuing credit" based on the actual payments made each month to the claimant. Importantly, in this case the Board noted that, although the Ninth Circuit's decision in Cretan was overruled by Ingalls Shipbuilding, Inc. v. Director, OWCP [Yates], 519 U.S. 248, 31 B.R.B.S. 5 (CRT) (1997), neither court addressed the portion of the Board's decision relevant to the instant case.

   The Board's Cretan decision was based on its decision in Maples v. Textports Stevedores Co., 23 B.R.B.S. 302, aff'd sub nom. Textports Stevedores Co. v. Director, OWCP, 931 F.2d 331, 28 B.R.B.S. 1 (CRT) (5th Cir.1991)(credit computation is made on a dollar-for-dollar basis; a reduction to present value of the compensation to be paid was not authorized by the plain language of the LHWCA.).

   Noteworthy are two assertions by the Director. First, the Director asserts that the most compelling reason for not using the present value method is to protect claimants. If the credit is taken only as the money is actually received, the risk for non-payment by the annuity company is placed on the employers and not on the claimants: i.e., if the credit is taken from the purchase price, the employer is free from liability from that point until the credit is expended, whereas, if the credit is taken against each payment, non-payment by the annuity company acts to reinstate the employer's liability sooner. Thus, claimants are protected from risk of loss and there will be no under compensation. Second, the Director [as well as Employer] also notes that the Employer based its approval of the third-party settlement on the entire package, including the schedule of payments, and not just on the cost of the annuity.

   Thus, the Board affirmed the ALJ's determination that Employer's offset against Claimant's third-party settlement under Section 33(f) is to be made on a dollar-for-dollar basis. Consequently, it was proper for him to conclude that Employer has a continuing credit against the amount Claimant receives under the annuity each month rather than require the annuity to be reduced to its present value at the time of the third-party settlement.

   In the instant case Employer also appealed the ALJ's decision to exclude all third-party proceeds received by decedent's children from the computation of employer's credit under Section 33(f). Employer contended that it is entitled to an offset of an additional $30,000 ($15,000 per each then-dependent child) and that the ALJ misapplied the Ninth Circuit's ruling in Force by failing to differentiate between dependent and non-dependent children. Instead of individual apportionment, employer asserts that its offset against its liability to Claimant should be computed using an "aggregate" method because apportionment serves no purpose when everyone involved is a person entitled to compensation under the LHWCA.

   The Board stated, "While we agree that this "net amount" properly includes the $30,000 paid to the two dependent children, we hold that employer, in this case, has waited too long to obtain its Section 33(f) credit against those fund." The Board noted that the decision in Force provides that an employer may offset its liability to a particular claimant only against third-party proceeds received by that claimant. Specifically, the Board stated that this portion of the Ninth Circuit's decision in Force was not affected by the Supreme Court's decision in Yates and is still good law. "Had employer sought a credit against their third-party recovery while they were still receiving compensation, there is no question that employer would have been entitled to a credit against the daughters' benefits. As decedent's daughters are no longer receiving benefits under the [LHWCA,] employer's only continuing obligation is to claimant. Allowing an offset for the daughters' recoveries against claimant's entitlement would run counter to the established case law explicitly allowing an offset against compensation due for the proceeds apportioned only to that person entitled to compensation."

   Thus, the Board continues to hold that the individualized apportionment method is to be used to determine an employer's credit under Section 33(f). If an employer fails to take its Section 33(f) credit during a period when it is liable for compensation to that claimant, it may not seek reimbursement retroactively out of benefits due another claimant.

[Topic 33.6 Employer Credit for Net Recovery; Topic 33.6.2 Apportionment]

O'Kelley v. Department of the Army/NAF, ____ B.R.B.S. ____, BRB No. 99-0810 (May 2, 2000).

   The main issue in this matter involves causation and invocation of the Section 20(a) presumption and whether or not it was rebutted. Claimant, who suffered from polio during his early childhood, was employed as the superintendent of the Follow Me Golf Course at Fort Benning, Georgia from 1980 through June 22, 1995. During his tenure he was responsible for determining the need for and directing the application of numerous insecticides, herbicides, and fungicides. As a result of these employment duties, Claimant, who was not issued protective clothing until sometime during 1987-1988, was exposed to fumes during the preparation and application of these materials. During his period of employment, Claimant experienced dizziness and instability while walking, as well as coughing, speech difficulties, and a worsening in the pulling of his facial muscles.

   The ALJ determined that Employer failed to rebut the Section 20(a) presumption. The ALJ further found that Claimant's work-related exposures aggravated his current neurological disorder. Employer challenged the invocation of the Section 20(a) presumption as well as whether or not it has been rebutted.

   Employer does not dispute that Claimant has suffered a harm, i.e., a neurological condition, and that Claimant presented evidence of his exposure to pesticide fumes during his employment. Rather, Employer challenges invocation of the presumption on the grounds that no credible evidence exists that Claimant's exposure to pesticides could have caused his current neurological condition. However, the ALJ specifically set forth the testimony of Dr. Dawkins, who opined that Claimant's chemical exposures aggravated his neurological condition and the ALJ noted that Employer's expert, Dr. Gerr, conceded that Claimant had been exposed to some pesticides and chemicals that can cause some symptoms similar to those which Claimant described. Thus the Board upheld the ALJ's invocation of the presumption.

   Next the Board addressed the rebuttal issue. It noted that where aggravation of a pre-existing condition is at issue, an employer must establish that work events neither directly caused the injury nor aggravated the pre-existing condition resulting in injury. In establishing rebuttal of the presumption, however, proof of another agency of causation is not necessary. Rather, the testimony of a physician that no relationship exists between an injury and a claimant's employment is sufficient to rebut the presumption.

   The ALJ found that while Dr. Gerr opined within a reasonable degree of medical certainty that Claimant's present medical condition was neither caused nor contributed to by his exposure to chemicals while working for employer, the doctor conceded on cross- examination that it was possible that Caimant's condition is work-related. Additionally, the ALJ noted that Dr. Gerr offered no opinion as to the cause of Claimant's condition present condition. The ALJ thus concluded that since Dr. Gerr could neither "rule our" the possibility that Claimant's condition is work-related nor determine the cause of Claimant's ailments, his testimony was insufficient to rebut the presumption. However, siding with the Employer, the Board found that the ALJ erred in concluding that the testimony of Dr. Gerr was insufficient to establish rebuttal.

   The Eleventh Circuit, within whose jurisdiction the instant claim arises, has espoused a "ruling out" standard when addressing the issue of rebuttal of Section 20(a). This circuit adheres to the line of cases that the LHWCA places on an employer the duty of rebutting the Section 20(a) presumption with evidence that the employee's employment neither caused nor aggravated his harm. Under this line, where none of the physicians of record expresses an opinion ruling out a causal connection, the circuit has previously determined that there was no direct concrete evidence sufficient to rebut the presumption.

   In the instant case, the Board found that Employer has met its burden of rebuttal. The Board noted that an employer is not required to establish another agency of causation in order to rebut the Section 20(a) presumption. The Board noted that a review of Dr. Gerr's reports and hearing testimony reveals that he stated unequivocally that Claimant's work- related chemical exposures did not cause, contribute to, or aggravate his present medical condition. Dr. Gerr stated at all times that his opinion regarding the lack of a causal nexus was rendered within a reasonable degree of medical certainty. The Board found that Dr. Gerr's admission on cross-examination of a possible causal connection between Claimant's employment and his present medical condition, Dr. Gerr's statement regarding "possibilities" reflects his opinion that in the medical profession there is no absolute certainty. This acknowledgment, according to the Board, does not render his opinion equivocal, as Dr. Gerr repeatedly expressed his opinion that no causal relationship exists between Claimant's present condition and his employment with Employer. Thus, the Board held that Employer has produced evidence sufficient to sever the causal relationship between Claimant's employment and his harm. "To hold otherwise,..., would raise the standard regarding rebuttal of the presumption to an unreasonable level since, as Dr. Gerr implied during his hearing testimony, 'absolute certainty' is a difficult concept in the medical profession."

[Topic 20.2.4 ALJ's Proper Invocation of Section 20(a); Topic 20.3 Employer has Burden of Rebuttal]

Plourde v. Bath Iron Works Corp., ____ B.R.B.S. ____, BRB No. 99-836 (May 9, 2000).

   In the instant case, the Board reversed the ALJ's application of the doctrine of collateral estoppel. Under the principle of collateral estoppel, a party is barred from re- litigating an issue decided in prior litigation if: (1) the issues at stake are identical in both cases; (2) the issue was actually litigated in the prior litigation; and (3) the determination of the issue in the prior litigation was a critical and necessary part of the judgment in the earlier action. In order for collateral estoppel effect to be given to a court's finding by an ALJ deciding a claim under the LHWCA, the same legal standards must be applicable in both forums.

   In the instant case, Employer paid Claimant total disability benefits under the Maine Workers' Compensation Act. Subsequently the Maine Workers' Compensation Board reduced Claimant's benefits to 75 percent of his average weekly wage, based on a finding that Claimant had some residual work capacity. Claimant then filed a claim under the LHWCA seeking permanent total disability. While noting that the general definition of "disability" appears to be similar under the state and federal schemes, the Board found that the allocations of burdens of production and proof differ materially under the two schemes.

   Under the Maine scheme, either the employer or the worker may petition for a review of incapacity (i.e. total disability) previously determined by degree or agreement, on the ground that the claimant's incapacity has subsequently been increased, diminished or eliminated. Employer-movant must establish through medical evidence that the employer has regained the physical capacity to perform some work. The state law requires the employer to show initially only that the claimant is no longer physically totally disabled and has acquired an earning capacity based, in most case, solely on medical evidence.

   The ALJ found the state and LHWCA substantially the same because Employer first must show Claimant's ability to return to work. The Board found that this burden under the state law is not comparable to Employer's burden under the LHWCA. Once a claimant has shown his inability to return to his usual work under the LHWCA, the burden shifts to the employer to establish the availability of suitable alternate employment. It is manifestly insufficient under the LHWCA for the employer to show merely that the claimant has some capacity to work or that the claimant can perform certain tasks. The employer must show the realistic availability of actual jobs that the claimant can perform in order to meet its burden of establishing the availability of suitable alternate employment under the LHWCA. The employer's initial burden under the Maine Act, that of coming forward with nothing more than medical evidence evincing an ability to work, therefore is significantly lighter than that required under the LHWCA (to meet its burden of establishing suitable alternate employment under the LHWCA, employer must provide evidence of actual positions, either at its facility or on the open market, that claimant can perform, given his age, education, vocational background and physical restrictions).

   In addition the Board found that the state burden on a claimant is greater than that required under the LHWCA Under the Maine law, once the employer establishes a claimant's physical capacity to work, the claimant must show that work is unavailable to him within his restrictions in order to retain total disability benefits or to obtain a large partial disability award. Although a claimant under the LHWCA bears a complementary burden of establishing reasonable diligence in attempting to secure alternate employment, this burden does not arise until employer's burden of establishing suitable alternate employment is satisfied.

   In the instant case, the Maine Board found that Claimant herein did not meet his burden of production on the work search issue. Under the LHWCA, however, this burden would not arise in the absence of credited evidence of suitable alternate employment.

   The Board concluded, "As employer's burden of establishing suitable alternate employment under the [LHWCA] is greater than its burden of establishing claimant's ability to work under the state act, and as claimant bore a higher burden of establishing his inability to perform any work under state law than that required under the [LHWCA], we reverse the [ALJ's] finding that collateral estoppel effect must be given to the state determination."

[Topic 85.2 Effect of Prior State Proceeding on a Subsequent Federal Claim]

Padilla v. San Pedro Boat Works, ___ B.R.B.S. ___ BRB No. 99-862 (May 17, 2000).

   In May of 1996 Claimant tripped, injuring his left knee, left shoulder and low back. He underwent total knee replacement in September of 1996 and also was diagnosed with lumbar disc disease. The ALJ found that the parties agreed that Claimant sustained injuries to his left knee and low back in the work incident of 1996. He also found that Claimant's back condition was aggravated by the work accident and was permanently impaired as a result. He concluded that Claimant sustained a 50 percent impairment to his left lower extremity and a permanent impairment to his low back. Inasmuch as Employer established the availability of suitable alternate employment, the ALJ awarded Claimant benefits under Section 8(c)(2) for the impairment due to the knee injury and under Section 8(c)(21) for a loss in wage-earning capacity due to the back injury, to run concurrently. To prevent the award from exceeding the statutory maximum weekly benefit of 66 2/3 percent of Claimant's average weekly wage, the ALJ ordered Employer to pay the benefits under the schedule at a portion of Claimant's compensation rate until they are paid in full.

   Employer argues that the award of benefits under the schedule for a period of over 245 weeks is contrary to the LHWCA because the LHWCA requires full payment of benefits over the period of time mandated in the schedule. Employer suggested establishing a method whereby the scheduled award is paid first and in full, and payment of the unscheduled award commences thereafter. It argues that this manner of payment is consistent with the LHWCA, is consistent with precedent established in Brady-Hamilton Stevedore Co. v. Director, OWCP, 58 F.3d 419, 29 B.R.B.S. 101(CRT) (9th Cir. 1995), and properly factors out any effects of the injury to the scheduled member from the award under Section 8(c)(21). Claimant argues that he is entitled to concurrence awards, and urged affirmance of the ALJ decision. Interestingly, the Director, who previously promoted the employer's position herein in I.T.O. Corp. of Baltimore v. Green, 185 F.3d 239, 33 B.R.B.S. 139(CRT) (4th Cir. 1999), modifying 32 B.R.B.S. 67 (1998), declines to express an opinion, stating he is "in the process" of reconsidering his statutory construction in light of the Fourth Circuit's decision in Green.

   After determining that Claimant was entitled to both an award of benefits under Section 8(c)(2) for his knee injury and under Section 8(c)(21) for his back injury, the ALJ had to determine how those awards should be paid. Based on the decisions in Green and Brady- Hamilton, the ALJ concluded that Claimant was entitled to benefits for both injuries to be paid concurrently. Realizing that payment in full of both awards at the same time would exceed the maximum benefit Claimant is permitted under the LHWCA, he awarded Claimant's weekly unscheduled benefits to be paid at the full compensation rate and awarded weekly scheduled benefits to be paid in a amount equal to the difference between 2/3 of Claimant's average weekly wage and Claimant's weekly unscheduled benefits. Payments under the schedule would be made until such time as Employer paid that compensation in full and unscheduled benefits would continue for the duration of the disability.

   Approvingly, the Board stated:

In light of the facts and case precedent, we affirm the [ALJ's] awards. Under Brady- Hamilton, the [ALJ]can make "whatever adjustments" are necessary to prevent overpayment, and he has made the adjustment here by following the lead of the Fourt Circuit. Thus, as Green is the only authority on calculating concurrent Section 8(c)(21) and scheduled awards for permanent partial disability, and as the method established in Green complies with Brady-Hamilton, we conclude that the [ALJ's] adjustments to the awards in this case are reasonable.

   While Section 8(f) relief ultimately was denied in this case, several of the Board's comments bare mentioning. The Board noted that other cases involving concurrent awards and Section 8(f) relief shed little light on the instant case. During its Section 8(f) deliberations, the Board opined that since Claimant is not being compensated for one "overall" disability, it is logical to require employer to establish entitlement to Section 8(f) relief from both awards individually, especially in view of the potential statutory differences in employer's liability in cases of scheduled partial disability as opposed to those involving an award for a loss in wage-earning capacity."

   Interesting, Employer, at one point, argued that the ALJ's adjustment to the award (due to claimant's entitlement to concurrent awards), resulting in benefits payable over the course of over 245 weeks, makes it eligible for Section 8(f) relief. However, the Board did not need to reach this question since the Section 8(f) issue was otherwise resolved.

[Topic 8.4.3 Concurrent Awards of Permanent Disability; Topic 8.4.5 Permanent Total v. Permanent Partial Disability;]