Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 133
November 1997
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
Benefits Review Board
In Liggett v. Crescent City Marine Ways & Drydock Co., ___
B.R.B.S. ___, BRB No. 97-0219 (Oct. 16, 1997), Board reversed its prior holdings under §
28(a) of the Longshore and Harbor Workers' Compensation Act, stating that:
. . . an employer is liable for an attorney's fee for services performed prior to
employer's receipt and controversion of a claim upon a claimant's successful
prosecution of that claim, and we expressly overrule our prior decisions to the
contrary. Section 28(a) therefore does not preclude the assignment to employer of
responsibility for the payment of the full extent of claimant's attorney's fees in this
case, and we therefore reverse the district director's ruling that claimant is liable
for the payment of the pre-filing fees.
Slip op. at 7.
This holding affects only discretionary decisions of the district director
which are directly appealed to the Board.
[ 28.1.3, precontroversion liability for attorney's fees ]
In Hansen v. Container Stevedoring Co., ___ B.R.B.S. ___, BRB
Nos. 97-0873 and 97-0873A (Oct. 29, 1997), the Board held that where "a claimant's
retirement is due, at least in part, to his occupational disease, claimant is not a voluntary retiree
and the post-injury provisions at Sections 2(10), 8(c)(23), and 10(d)(2) do not apply."
Where a claimant is unable to perform his prior job due, in part, to an occupational disease, he
"is entitled to an award based on his loss of wage-earning capacity and may therefore be
entitled to permanent total disability compensation pursuant to Section 8(a) of the Act . . .."
It is within the administrative law judge's discretion to credit Claimant's testimony, in addition to
medical evidence, regarding whether his retirement was due in part to an occupational disease.
The Board reiterated that "[w]here a claimant sustains an injury
which results in an award of permanent partial disability and subsequently suffers a second injury
which results in a permanent total disability, he may receive concurrent awards for the two
disabilities." However, the Board stated that "[t]he concurrent awards combined
cannot exceed the 66 2/3 percent of the average weekly wage maximum of Section 8(a)."
The Board overruled the administrative law judge's grant of Claimant's
"motion in limine objecting to employer's submission of evidence regarding the
availability of suitable alternate employment based on employer's failure to answer
interrogatories (regarding the issue)." The Board noted that "employer's witness had
been timely identified within the 20-day period provided in the pre-trial order and the proferred
report (regarding suitable alternate employment) had been timely served within the 10-day period
allowed for the exchange of exhibits . . . and that (claimant) had made no motion for an order
compelling response to his interrogatories under 20 C.F.R. § 18.21." The Board
held that "[t]he administrative law judge's refusal to admit this evidence, which is essential
to one of the central issues of the case, was an extreme sanction which is not warranted by the
offense . . .."
Finally, the Board held that, with regard to Special Fund relief, "an
employer must provide compensation for 104 weeks before its liability may be transferred to the
Special Fund."
[ 2.2.13 and 10.5.2, voluntary retiree and occupational disease; 8.4.3,
concurrent awards of permanent disability; 19.3.5.2, motion in limine]
In Casey v. Georgetown University Medical Center, ___ B.R.B.S.
___, BRB No. 97-975 (Oct. 28, 1997), the Board held that Section 33(g) was inapplicable and
stated the following:
In this case, claimants did not succeed in the district court as summary judgment
was granted in favor of the defendants. Moreover, in excess of $12,000 in court
costs was assessed against them. Claimants thereafter elected to forego their
appeal of the unfavorable verdict in return for a waiver of the defendants' right to
reimbursement of court costs. Although claimants retained money,' which is
consideration' for purposes of their agreement with the defendants, the parties did
not compromise the tort suit and claimants did not receive any settlement
proceeds for the purposes of Section 33(g). Employer's rights under the Act were
not affected by the agreement to withdraw the appeal in the wrongful death claim.
(citations omitted). Moreover, the funds which the defendants waived were not
settlement funds to which employer would be entitled to credit.
Slip op. at 5.
The Board then concluded that a district court's rejection of a wrongful
death claim did not collaterally estop a claim under the Act. Although the parties involved and
burdens of production and persuasion were the same in the two cases, the administrative law
judge "has greater latitude in admitting expert evidence than did the district court"
such that collateral estoppel was inapplicable.
Finally, the Board upheld the administrative law judge's conclusion that
Claimant's exposure to halothane hastened his death and his calculation of Claimant's wage loss.
The Board stated that:
In this case, decedent was working until his occupational disease hospitalized him
and caused his death. The administrative law judge's use of decedent's wages in
the year prior to his death is consistent with the case law and it furthers the goal of
compensating claimant's for the full extent of wage loss due to decedent's death
from his occupational disease.
[ 33.7, third party settlements; 85.1, collateral estoppel ]
In Wiggins v. Newport News Shipbuilding & Dry Dock Co., ___
B.R.B.S. ___, BRB No. 97-255 (Oct. 23, 1997), the Board held that "the district director is
authorized to set deadlines for the (submission of a) Section 8(f) application regardless of
whether a separate prior request has been made in accordance with Section 702.321."
Section 702.321 provides that an employer or carrier may file such an application sua
sponte. The Board remanded the case and directed that the administrative law judge
reconsider whether Employer was excused from filing the § 8(f) application in accordance
with the deadline set by the district director based upon "when employer reasonably knew
the case might meet the legal requirements for obtaining Section 8(f) relief, when evidence
relevant to these requirements was available, and any other facts having an impact on employer's
filing a Section 8(f) application."
[ 8.7.9.2, timeliness of petition for § 8(f) relief ]
In Jones v. Aluminum Co. of America, ___ B.R.B.S. ___, BRB
No. 97-287 (Oct. 16, 1997), the Board held that Claimant did satisfy the "status" test
as he maintained conveyor belts and "the loading process did not end until the raw material
reached the storage facility." As a result, Claimant's work in "maintenance of the
conveyors which transported bauxite from the ships to employer's storage facility for later use in
the manufacturing process" was covered as "the conveyor system did not move
stored cargo, but instead moved shipped cargo that was still in the unloading process."
The Board further concluded that, although Claimant spent about one
percent of his time maintaining the conveyor belts, he was covered because such employment
"was a regular, nondiscretionary part of (his) job."
[ 1.7.1, "status" of employment ]
In Herold v. Stevedoring Services of America, ___ B.R.B.S. ___,
BRB No. 96-1080 (Apr. 28, 1997), the Board affirmed the administrative law judge's finding that
Port of Astoria was liable for benefits awarded to Claimant because it "had the right to
control the details of claimant's work as it had a rule requiring linesmen to wear hard hats and
vests, and it furnished the truck used in the tie-up service." The Board further held that the
administrative law judge "rationally found that the method of payment was not dispositive
as it pointed to both the Port and (Stevedoring Services of America) as the employer, and that the
right to fire claimant was a neutral factor."
[ 75.1, determining employer-employee relationship, "right to control
details of work" test ]
In Porter v. Kwajalen Services, Inc., ___ B.R.B.S. ___, BRB No.
97-212 (Sept. 25, 1997), the Board upheld an administrative law judge's "finding that
claimant cannot unilaterally rescind the settlement as the settlement is binding upon claimant and
not subject to rescission after it was approved by the administrative law judge . . .." The
Board further concluded that the "administrative law judge properly found he lacked
jurisdiction to set aside his compensation order after it had been filed in the district director's
office since no timely motion for reconsideration was filed (within ten days) and since
settlements approved pursuant to Section 8(i) of the Act are not subject to modification under
Section 22 of the Act . . .."
[ 8.10.6, withdrawal of claim/settlement; 8.10.8, modification of
settlement ]
