TOPIC 8.1

Topic  8.1.1    Disability--Nature of Disability (Permanent v. Temporary)—Generally

Gulf Best Electric, Inc. v. Methe, ___ F.3d ___, (No. 03-60749) (5^th Cir. Nov. 1, 2004).  [ED.NOTE:  This case was changed from Unpublished status to Published on December 27, 2004.]

            The Fifth Circuit found that it lacked jurisdiction to consider the claimant’s claim that the Board erred in excluding employer contributions to his retirement and health insurance funds when calculating his average weekly wage (AWW).  It explained that the claimant had styled his petition a “Cross-Application to Enforce Benefits Review Board Order” but that, in substance, the petition was a simply a request that that the court reverse the Board’s order, and thus allow inclusion of the employer’s $3.47 per hour contributions to retirement and health insurance funds in calculation of AWW.  “Because the claimant raises this issue as an affirmative challenge to the BRB’s decision rather than as a defense to his employer’s appeal, his ‘cross-application’ is properly characterized as a petition for review and, thus is time-barred by § 921©.

            The Fifth Circuit further noted that the claimant contended that, because he has filed a petition for modification of the compensation award with DOL pursuant to Section 22, it would be a “waste of this court’s time and resources” to dismiss his petition, only to have the claim eventually “work its way back through the system.”    The court noted that the claimant “cites no authority for the proposition that we may ignore the time requirements for appeal imposed by an agency’s organic statute for the sake of equity or judicial efficiency” and therefore it dismissed the petition. 

            In this matter the court also affirmed the Board’s decision that the date on which treatment actually ceased was the correct MMI date, noting that “[o]ne cannot say that a patient has reached the point at which no further medical improvement is possible until such treatment has been completed—even if, in retrospect, it turns out not to have been effective.”  Abbott v. La. Ins. Guaranty Assn., 40 F.3d at 126 (5^th Cir. 1994).

            Finally, the court upheld the Board’s application of Section 10(a) rather than 10(c) as the ALJ had found.  Noting that the claimant worked 47.4 weeks, or 237 days, or 91 percent of the workdays available in the year before his injury, the court stated that while it has not adopted a bright-line test for the applicability of Section 10(a) as the Ninth Circuit has (75 percent or more to be under Section 10(a)), “it is clear to us that [the claimant’s] record of 91 percent satisfies the requirement of § 910(a) that the claimant have worked ‘substantially the whole of the year immediately preceding the injury.’”  The court addressed the ALJ’s concerns of the “fairness” of possible overcompensation as his rationale for applying Section 10(c) by noting its prior position in Ingalls Shipbuilding v. Wooley, 204 F.3d 616 (5^th Cir. 2000), that the calculation mandated by Section 10(a) aims at a theoretical approximation of what a claimant could ideally have expected to earn… had he worked every available work day in the year.  “Over-compensation alone does not usually justify applying § 910(c) when § 910(a) or (b) may be applied.”

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Topic 8.1.7                 Doubt Should Be Resolved in Favor of the Claimant

            This subtopic should be modified to read as follows:

            Historically, any doubt as to whether an employee has recovered, was resolved in favor of the claimant’s entitlement to benefits.  Fabijanski v. Maher Terminals, 3 BRBS 421, 424 (1976), aff’d mem. Sub nom. Maher Terminals, Inc. v. Director, OWCP, 551 F.2d 307 (4^th Cir. 1977).  However, see Director, OWCP v. Greenwich Colleries, 512  U.S. 267 (1994)(There is no true doubt rule under the LHWCA). 

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