United States
Department of Labor Office of Administrative Law Judges RECENT SIGNIFICANT
DECISIONS -- MONTHLY DIGEST # 151, AMENDED 1 December 2000 - February 2001
A.A. Simpson, Jr.
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
I. Longshore
A. Court of Appeals
[Ed. Note: The following circuit case has been included for informational value as it may
relate to issues of SAE and determining levels of economic disability.]
Here, the Ninth Circuit took up the conflict between the ADA and seniority
provisions of collective bargaining agreements in Willis v. Pacific Maritime Association,
et al., No. 97-16778 and Gomez v. Pacific Maritime Association, et al., No. 97-
16779. Willis and Gomez were both longshore workers on the docks in the San Francisco Bay
area and members of the International Longshore and Warehouse Union local (the Union). The
Union, in turn, was party to a collective bargaining agreement (CBA) with the Pacific Maritime
Association, a trade association of the main employers of dockworkers (the Association). Under
the agreement, Union workers report each day to a central hiring hall jointly maintained by the
Union and the Association and are assigned to available longshore jobs based on seniority. The
system also includes provisions for priority assignment of older and disabled workers to light
duty positions. The collective bargaining agreement also governed the transfer of employees
from the longshore union to the local marine clerks union.
Plaintiffs, Willis and Gomez, were disabled in the course of their
employment under the CBA. Each sought light duty assignments, transfer to the clerks union, or
both as a result of their disability. Their requests were denied based on seniority. Plaintiffs sued
the Union and Association separately in District Court and the cases were consolidated and
ultimately dismissed on summary judgment in favor of the Union and Association. Plaintiffs
contended that the defendants discriminated against them by failing to make reasonable
accommodation for their disabilities as required by the ADA. On appeal, the Ninth Circuit
affirmed, holding that "[a] plain reading of the ADA supports the conclusion that an
accommodation that would compel an employer to violat a CBA is unreasonable." Id.
at 343. The circuit court also found that "the operation of a bona fide seniority system
is not discriminatory simply because it does not allow for the accommodations which would
upset the operation of the seniority system itself." Id. at 344.
B. Benefits Review Board Cases
Brad Valdez and Joshua Valdez (Children of Manuel Valdez, Jr.) V. Crosby & Overton et
al, ___ BRBS ___, (BRB Nos. 99-0960 and 99-0960A) (2001).
Upon reconsideration the Board determined that Employer was entitled to
credit for overpayment of compensation to Brad Valdez. The Board further held that this credit
could be applied against future compensation owed to Brad's brother Joshua. Claimant's relied
on the Board's decision in Gilliland v. E.J. Bartells Co., Inc., 34 BRBS 21 (2000) and
argued that Employer was not entitled to apply the credit to future payments owed to Joshua
since the Employer made no attempt to recover the overpayment prior to Brad's 23d birthday.
The Board declined the motion for reconsideration. It distinguished the instant case from
Gilliland saying that the Gilliland decision relied on the credit provision at
Section 33(f) while the instant case relied on the credit provision at Section 14(j). 33 U.S.C.
§ 914(j). The Board allowed the employer to apply the credit against future compensation
owed to the other son because 14(j) allows employer's to receive a credit for their prior payments
against an compensation subsequently found due. The Board also reasoned that because Section
9(b) allows for payment of one death benefit to a spouse including additional compensation for
surviving children, the compensation owed to Josh Valdez was subsequent compensation due
under the same award as that paid to Brad Valdez.
Martin v. Pride Offshore, Inc, ___ BRBS ___ (BRB No. 99-0398)(2001).
At issue here is whether a claimant injured in a car accident while returning
home from his workplace could claim coverage under the provisions of the LHWCA as extended
by OCSLA. The parties to Martin v. Pride Offshore, Inc., BRB No. 99-0398, originally
contested whether or not Claimant's car accident was the cause of his disability. Claimant
worked on Employer's platform on the Outer Continental Shelf off Louisiana. After a seven day
hitch on the platform, Claimant was flown by helicopter to his car and began to drive to his home
in Alabama. During the course of the drive, Claimant was involved in a one car accident and
was severely injured including sustaining memory loss. The ALJ originally found that
Claimant's disability was the result of an injury in the form of fatigue suffered during his seven
day work shift. The judge held that because the fatigue happened during the shift on the platform
it met the OCSLA situs requirements. The Board reversed, holding on appeal that because the
car accident occurred on a highway in Mississippi, Mills v. Director, OWCP, 877 F.2d
356 (5th Cir. 1989) precluded the finding that the OCSLA situs requirement was satisfied.
[Topic 60.3.2 OCSLA Coverage]
James Benjamin v. Container Stevedoring Co., et al., ___ BRBS ___, (BRB Nos. 00-
0414 and 00-0414A)(2001).
The Director appealed the findings of the ALJ that SSA, a subsequent
employer was responsible for Claimant's hearing loss. The Director contended on appeal that the
ALJ should have found Container Stevedoring, Claimant's original employer, liable in part based
on the level of impairment reflected in the Claimant's first audiogram. The Director argued that
because there were two injuries and two audiograms, the ALJ had erred in treating the second
audiogram as dispositive and holding only the second employer responsible. SSA, the
subsequent employer joined in the appeal supporting Director's contention. The Board, citing
inter alia, Travellers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert.
denied, 350 U.S. 913 (1955), affirmed the ALJ. The Board held that because both claims
involved hearing loss injuries the ALJ properly treated them as one injury and not two. On that
basis, the Board explained, the responsible employer is the employer during the last employment
where Claimant is exposed to injurious stimuli. Accordingly, SSA, as the last employer was
properly held liable for the entire injury.
[Topic 8.13.4 Responsible Employer and Injurious Stimuli; 8.13.8 Hearing
Loss and Proving Disability at Last Exposure]
William Brown v. National Steel and Shipbuilding Co., ___ BRBS ___, (BRB No. 00-
0419)(2001).
Here, the Board addressed the question of whether temporary total
disability compensation is available while Claimant is participating in a vocational rehabilitation
program. Additionally the Board considered whether Claimant could receive temporary partial
disability compensation based upon wages he actually earned during part-time employment as an
Instructional Aide and the award of permanent partial disability compensation for a 28%
impairment to Claimant's arms. The Claimant, a journeyman shipfitter had suffered
from carpal tunnel as a result of repeated stresses of his job. The Board affirmed the decision of
the ALJ on all but the issue of whether Claimant could receive partial disability payments based
on his part-time employment.
Employer argued that Louisiana Ins. Guaranty Association v.
Abbott, 40 f.3d 122, 29 BRBS 22(CRT) (5th Cir. 1994), aff'g 27 BRBS 192 (1993),
should not be controlling since, (1) the Claimant was participating in a state-sponsored
vocational rehab program; (2) unlike Abbott, the instant case involves an injury under the
schedule, and vocational training will not reduce Employer's ultimate liability; and (3) Claimant
should be found capable of performing part-time employment during the period of his retraining.
In ruling that Abbott did apply, the Board rejected each of
Employer's arguments; first, the Board noted that the Ninth Circuit has recognized the
LHWCA's interest in facilitating the rehabilitation of injured employees. Second, the Board
found that Employer's interests were, likewise, furthered as a result of Claimant's retraining
program since Claimant's acquired skills reduces the likelihood that Claimant would be unable to
obtain SAE and thus render employer liable to Claimant for total disability compensation.
Third, the Board affirmed the ALJ's conclusion that Claimant was
incapable of working part-time during his participation in a vocational rehabilitation program. In
so doing, the Board noted that Claimant's retraining program was suspended by his instructors
during his period of part-time employment as an instructional aide, and this suspension suggests
that Claimant's vocational rehabilitation counselors did not believe that he was capable of both
participating in his vocational retraining and performing a part-time job. Additionally, Claimant
testified that he was exhausted at the end of each retraining day and the Board felt that the ALJ
was correct in determining that it was unreasonable to expect Claimant to arise at 5:30 a.m.,
attend both classroom work and hands-on training from 7 a.m. until 1 p.m. and then commence
part-time employment. Finally, the Board noted that Claimant underwent dual carpal tunnel
releases during the period of time and that these too surgical interventions resulted in Claimant's
inability to attend his retraining sessions for several weeks.
As to the second issue, the Board agreed with Employer, holding that
temporary partial disability should be based on the difference between Claimant's pre-injury
average weekly wage and his post-injury wage-earning capacity. The Board vacated the ALJ's
award of benefits based on Claimant's actual post-injury earnings because it found that the ALJ
had failed to consider Employer's evidence to determine whether those wages fairly and
accurately represented Claimant's current wage earning capacity. The Board held that this was a
necessary step under Container Stevedoring Co. v. Director, OWCP, 935 F.2d 1544, 24
BRBS 213 (CRT) (9th Cir. 1991); Cook v. Seattle Stevedoring Co. , 21 BRBS 4 (1988).
[Topic 8.2.3.2 Disability While Undergoing Vocational Rehabilitation; 8.9.1
Wage-Earning Capacity Generally; 8.9.3.1 What Consitutes "Actual
Wages"]
Beckner, Jr. v. Newport News Shipbuilding & Dry Dock Co., ___ BRBS ___ (BRB No.
00-0370)(2000).
In reversing a Section 8(f) award, the Board found that Claimant's pre-
existing bilateral amputations did not cause his asbestosis impairment to be substantially greater
than that which would have resulted from the asbestos exposure alone. Claimant and Employer
had agreed that Claimant's present permanent partial disability as a result of his asbestosis is
25%. In his decision, the ALJ explicitly determined that a physician had quantified claimant's
impairment from asbestosis alone at 25 %. The Board found it axiomatic that the ultimate
permanent partial disability did not materially and substantially exceed the disability that would
have resulted for the injury, viz., Claimant's asbestosis. Another physician had reviewed reports
and concluded that Claimant's overall disability was not caused by asbestosis alone. (He listed
cardiovascular disease and diabetes as significant contributing factors). Specifically, he opined
that Claimant's overall impairment rating would have been 15 % but for the asbestosis.
However, the Board found that the ALJ had properly given that opinion no weight since it was
calculated by a method of analysis explicitly rejected by the case law.
[Topic 8.7.6 Section 8(f) Relief In Cases of Permanent Partial Disability]
Fitzgerald v. Stevedoring Services of America, ___ BRBS ___, (BRB No. 00-0724)(Jan.
31, 2001).
This is the appeal of a bifurcated proceeding, wherein the sole issue before
the ALJ was whether there was an employer-employee relationship between a stevedoring
company (SSA) and a claimant who worked for the Georgia Ports Authority (GPA), a
subdivision of the State of Georgia. Pursuant to a leasing arrangement known as "the
tariff," GPA leases its equipment and equipment operators to stevedoring companies.
Before addressing the matter on the merits, the Board first addressed
Claimant and Director's motion to dismiss the appeal as not timely. The Board stated that, while
it generally does not entertain appeals from interlocutory orders, it has the discretion to do so. To
support this position, the Board cites Section 21(b)(2) of the LHWCA, which provides that the
Board is authorized to hear appeals "raising a substantial question of law or fact taken by
any party in interest..."
Next, the Board addressed the stevedoring company's argument that
Claimant is excluded from coverage under the LHWCA by operation of Section 3(b), inasmuch
as claimant was, at the very least, the nominal employee of GPA, a government subdivision.
SSA and its amicus intervener, the National Association of Waterfront Employers (NAWE)
claimed that Section 3(b) prevents liability from being shifted from a governmental subdivision
to a statutory employer, and therefore, the borrowed employee doctrine should not be applicable
in this case.
The Board permitted the raising of Section 3(b) for the first time on appeal
noting that it has previously held that it will permit a party to raise an issue for the first time on
appeal where a pertinent statutory provision has been overlooked.
The Board held that Section 3(b) concerns the immunity of government
entities from liability under the LHWCA, and does not prevent a nominal state employee from
becoming the borrowed employee of a statutory employer under the LHWCA. In so holding, the
Board was guided by the language of Section 4(a) of the LHWCA, which provides:
"Every [Emphasis added by the Board in its quote of the subsection.] employer
shall be liable for and shall secure the payment to his employees of the compensation payable
under sections 907, 908, and 909 of this title."" Thus, the Board reasoned, under
Section 4(a), all employers, including borrowing employers, are liable for compensation under
the LHWCA.
Thus, the Board determined that Section 3(b) does not prevent a finding
that SSA was Claimant's borrowing employer; rather, a determination as to whether Claimant is
excluded from coverage under Section 3(b) is dependent on whether the ALJ properly
determined that SSA was Claimant's borrowing employer at the time of his injury. In upholding
the ALJ's finding of borrowed employee status, the Board distinguished Standard Oil Co. v.
Anderson, 212 U.S. 215 (1909) and analyzed the ALJ's application of the "Ruiz-
Gaudet borrowed employer test". This nine-part test to determine the responsible employer
in a borrowed employee situation was developed by the Fifth Circuit in Ruiz v. Shell Oil
Co., 413 F.2d 310 (5th Cir. 1969), and Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir.
1977), cert. denied, 436 U.S. 913 (1978). It has been applied by the Board previous to
the present case.
[Topics 21.1.2 Review of Compensation Orders Grant of Authority; 3.1
Coverage Government Employees; 2.2.16 Borrowed Employee Doctrine;
75.0 Employer-Employee Relationship; 4.1.1 Employer Liability Borrowed
Employer doctrine]
II. Black Lung Benefits Act
Benefits Review Board
In an unpublished decision, Villian v. Zeigler Coal Co., BRB No.
00-0451 BLA (Jan. 29, 2001), the Board upheld the administrative law judge's application of
collateral estoppel to preclude Employer from re-litigating the existence of pneumoconiosis and
its etiology in a survivor's claim where a finding of coal workers' pneumoconiosis was made in
the prior living miner's claim. Employer had argued that a survivor's claim is analogous to a
duplicate claim under § 725.309 as it is decided "entirely independent from the
miner's claim." The Board disagreed to state the following:
[ application of collateral estoppel to preclude re-litigation of pneumoconiosis in
survivor's claim ]
By unpublished decision in Hilliard v. Old Ben Coal Co., BRB
No. 99-0933 BLA (June 30, 2000), the Board affirmed an administrative law judge's exclusion of
evidence supporting Employer's petition for modification as it "could have been obtained
before the miner's claim for benefits was adjudicated or when employer's first request for
modification was before Judge Burke." In addition, the Board concluded that:
. . . the administrative law judge properly extended this reasoning to employer's
request for permission to obtain the report of the miner's autopsy. The miner died
two years before Judge Burke's denial of employer's first petition for modification.
Thus, employer could have sought and submitted this report at an earlier
juncture.
Slip op. at 6. The Board also held that the administrative law judge properly held Employer to be
bound by the acts of its attorney who, without Employer's knowledge, abandoned his law
practice:
Apparently without notice to employer, employer's counsel, Wayne R. Reynolds,
abandoned his law practice at some point during the consideration of employer's
first request for modification, which was denied by Judge Burke. Employer
asserts that under these circumstances, it would be unjust to allow an award of
benefits when the evidence of record clearly does not support a finding of
entitlement. We reject employer's argument, as the general rule is that a party is
bound by the actions of its attorney, no matter how negligent or incompetent, and
that a party dissatisfied with the actions of its freely chosen counsel has a separate
action against such counsel in another forum for his negligence. (citations
omitted).
Slip op. at 5-6.
[ exclusion of evidence on modification; party bound by acts of attorney ]
[ENDNOTES]
1 This version of the Recent
Significant Decisions contains corrected longshore digests. Discard the prior version of Digest
No. 151.
[Webmaster's note: The version of Digest No. 151 with erroneous case digests had not yet
been distributed outside the Office of Administrative Law Judges when this corrected version was
created. Thus, this footnote is not relevant for persons outside OALJ.]
2 The complete citation is Hughes
v. Clinchfield Coal Co., 21 B.L.R. 1-134 (1999) (en banc).