Office of Administrative Law Judges
United States Department of Labor
MONTHLY DIGEST # 135
March-April 1998
James Guill
Associate Chief Judge for Longshore
Thomas M. Burke
Associate Chief Judge for Black Lung
A. Circuit Courts of Appeals
In Gooden v. Director,
OWCP, 135 F.3d 1066 (5th Cir. 1998), the court held that,
while Claimant's work may not have caused or aggravated his cardiovascular disease, a heart
attack
suffered by him at work is compensable since it was suffered in the course and scope of
employment. It is erroneous to focus on the origins of the underlying condition rather than on
the
ultimate heart attack. The court held that the Act provides compensation for accidental injury or
death arising out of and in the course of employment; not merely those conditions caused by the
employment.
[ 20.5, application of Section 20(a); 20.2, claims within the provisions
of the Act; 20.3, employer's burden on rebuttal ]
In Transbay Container Terminal v.
Director, OWCP [Dermont], ___ F.3d ___ , Case No. 96-70843 (9th Cir. Mar. 6, 1998),
at issue was whether Claimant's pre-existing cardiovascular atherosclerosis was manifest for
§
8(f) purposes. Employer argued that the ALJ's findings, that the condition was not manifest, were
not supported by substantial evidence because several "risk factors" for
cardiovascular
disease and myocardial infarction were discoverable from claimant's medical records. These
factors
were: Claimant had four incidents of high blood pressure in six years; a 20 year smoking habit of
two packs a day; a family history of diabetes mellitus; and he was an obese male. In upholding
the
ALJ's finding that the condition was not manifest, the court stated that the mere presence of
certain
risk factors is not legally sufficient. Without a documented diagnosis, there must be sufficient
unambiguous, objective, and obvious indication of a disability reflected by the factual
information
contained in the available records so that the disability should be considered manifest even
though
actually unknown by Employer.
[ 8.7.4, preexisting disability must be manifest to employer ]
In Seaco and Signal Mut. Admin
v.
Richardson, ___ F.3d ___, Case No. 96-9288(11th Cir. Mar. 11, 1998), the Eleventh
Circuit denied Employer's request for a credit under Section 8(e). The court found that the
container
royalty payments and holiday/vacation payments did not constitute "advance payments of
compensation" under 33 U.S.C. § 914(j) and did not represent post-injury
wage-earning
capacity under § 8(h). The fact that Claimant and other longshoremen are able to
"earn" these payments, regardless of whether they are disabled "belies a
finding
that these payments were intended as advance payments of compensation."
In Quinones v. H.B. Zachery, Inc., ___ B.R.B.S. ___, BRB No.
97-0688 (Feb. 10, 1998), the Board held that it was proper for the administrative law judge to
include
the value of the room and board provided to Claimant by Employer in his calculation of
Claimant's
average weekly wage. The Board then upheld the administrative law judge's valuation of the
cost
of meals provided, at $14.50 per diem, as uncontested on appeal. With regard to lodging:
The administrative law judge determined that a reasonable value of claimant's
lodging was $15.50 per day, or $108.50 per week; employer argues that a more
reasonable figure would be $29.40 per week based on building costs. The
administrative law judge calculated the value of claimant's lodging by using the
figure of $30.00 per day for room and Board used in (Guthrie v. Holmes &
Narver, Inc. 30 B.R.B.S. 48 (1996)) and subtracting the cost of claimant's meals
per day . . .. In challenging the administrative law judge's calculation, employer does
not contend that the facilities provided in either case are substantially different from
each other nor does it include in its costs furnishings, maintenance, and utilities. The
administrative law judge's calculation, therefore, is reasonable, and we decline to
disturb it on appeal.
The Board further upheld the administrative law judge's finding that
Claimant
established the existence of working conditions which could have caused his injury.
Specifically,
the judge properly credited Claimant's testimony with regard to the requirements of his job and
the
Section 20(a) presumption of causation was invoked. The presumption was not rebutted by
Employer where the record supported a finding that Claimant's work-related trauma aggravated
his
preexisting condition, i.e. it aggravated a tumor which caused injury to his back.
[ 2.13, wages; 20.2.3, cause of accident/injury; 20.3,
employer's burden on rebuttal; 20.3.1, failure to rebut ]
In Hargrove v. Strachan Shipping Co., ___ B.R.B.S. ___, BRB No.
97-911 (Feb. 24, 1998), Claimant sought withdrawal of his claim for benefits "after the
parties
seemingly reached an agreement as to the amount of compensation." The administrative
law
judge denied the request upon concluding that "no settlement agreement was submitted for
approval, and no compensation order was issued approving the settlement or adjudicating
claimant's
claim." Fourteen years later, Claimant sought additional compensation and medical
benefits
for disability arising out of the 1971 injury. The Board held that a "withdrawal request . . .
based on the exchange of a sum of money is not a valid purpose for withdrawal." As a
result,
because the original claim had never been finally adjudicated, i.e. no settlement approved
or withdrawal request granted, and the Board held that the administrative law judge erred in
"finding that he could not reopen' the claim . . .."
Moreover, the Board held that it was error for the administrative law judge
to
place the burden of proof upon Claimant to establish that his psychological condition is
work-related. Rather, the Board initially noted that the Section 20(a) presumption applies to
such injuries
and merely requires that Claimant demonstrate that "he has a psychological impairment
and
that an accident occurred or working conditions existed which could have caused the
impairment." The Board then concluded that the record supported invocation of the
presumption and the case was remanded for a determination of whether Employer could rebut it.
[ 8.10.6, withdrawal of a claim/settlement; 8.11, withdrawal of a
claim; 20.2.3, work-related injury ]
In Wyknenko v. Todd Pacific Shipyards Corp., ___ B.R.B.S. ___,
BRB No. 97-1023 (Feb. 25, 1998), the issue presented was whether Claimant, a longshoreman's
widow, was "entitled to the death and funeral benefits that accrued prior to the date of the
1995
third-party settlement, despite the fact that claimant failed to obtain employer's written approval
of
that settlement as required by Section 33(g)." The Board concluded that "Section
33(g)(2) requires the termination of a claimant's right to all compensation, including
compensation
which has accrued, once the claimant fails to obtain written approval of a third-party settlement
after
becoming a person entitled to compensation." (emphasis in original). Under the facts of
Wyknenko, Claimant became a "person entitled to compensation" on
October
22, 1992, the date on which her husband died. Therefore, because she failed to obtain
Employer's
written approval of a third-party settlement executed in 1995, Claimant "forfeited her right
to
collect all death benefits, both accrued and future . . .." This forfeiture included any award
for
funeral benefits pursuant to Section 2(12) of the Act.
[ 33.7.2, Cowart and "Qualifying" for benefits
]
In Alexander v. Triple A Machine Shop, ___ B.R.B.S. ___, BRB
Nos.
97-1143 and 97-1143A (Mar. 30, 1998), Claimant was diagnosed with asbestosis in 1978 and
filed
the first of four claims for benefits under the Act alleging asbestos exposure and naming Triple A
as one of the potentially responsible employers. A formal hearing was conducted on July of
1991.
During these proceedings Claimant settled pursuant to Section 8(i) with three employers.
Initially, the ALJ denied Triple A a credit for the payments Claimant
received
pursuant to the settlements with the other employers named in the claim. On the first appeal, the
Board accepted Triple A's argument that the ALJ erred in not granting it an offset for amounts
paid
to the claimant pursuant to his settlements with the other employers in the claim, holding that
application of the general credit doctrine, which precludes double recovery for benefits for the
same
injury or disability, applies to support a credit in this instance. In so concluding, the Board noted
that the avoidance of double recovery would militate in favor of an offset, regardless of the
source
of the payment. Accordingly, the Board held that under the circumstances presented, where
Claimant received money under Section 8(i) settlements from prior employers based on the
same
pulmonary impairment for which he was receiving compensation from Triple A, it was necessary
to vacate the denial of the offset. The Board directed that the ALJ reconsider this issue on
remand
in light of the purposes of the credit doctrine and for other reasons [not pertinent to this
discussion].
On remand the ALJ determined that a credit was not warranted under the
judicially created credit doctrine because Claimant's Section 8(i) settlements did not represent a
double recovery for the same injury. On second referral, the Board did not affirm the ALJ on
this
point for several reasons. First, the Board noted that it had previously held that the general credit
doctrine was applicable in its prior decision and that this was the law of the case. Second, the
Board
stated that where an employer makes voluntary payments but a later employer is ultimately
responsible, under Travelers Ins. Co. v. Cardillo, 225 F.2d. 137 (2d Cir.), cert.
denied, 350 U.S. 913 (1955), it cannot seriously be asserted that the claimant is entitled to
both
the voluntary payments and a full overlapping recovery from the responsible employer, with
Section
14(j) inapplicable because different employers are involved. The Board noted that, since under
Section 2(22) the singular includes the pleural, Section 14(j) is applicable to this situation.
Further,
the Board noted that the credit serves the recognized purposes of preventing an employee from
receiving double recovery for the same injury, death or disability, and ensuring the prompt
payment
of compensation.
[ 14.5, employer credit for prior payments ]
In Redmond v. Sea Ray Boats, ___ B.R.B.S. ___, BRB Nos.
97-1117
and 97-1117A (Feb. 6, 1998), the Board reiterated its holding in Powers v. Sea Ray
Boats,
___ B.R.B.S. ___, BRB No. 97-705 (Jan. 26, 1998) that the length of a recreational vessel is
measured from "the foremost part of the vessel to the aftmost part, including fixtures
attached
by the builder" in determining whether there is coverage under the Act. As a result,
because
the vessel at issue in Redmond exceeded 65 feet in length, Claimant was not excluded
from
the Act's coverage. Moreover, the Board held that Section 33(g) did not bar the claim for
benefits:
The claim for state workers' compensation benefits was filed against claimant's
nominal employer, Norrell, and one of the issues before the administrative law judge
herein was whether Norrell, as the nominal employer or Sea Ray, as the borrowing
employer, is liable for claimant's benefits. The state compensation claim does not
fall within the provisions of Section 33 as it was not brought against a third party in
a civil suit for tort damages. Accordingly, Section 33(g) cannot apply to bar
claimant's claim for benefits.
[ 1.11.12, recreational vessel ]
In Kilburn v. Colonial Sugars, ___ B.R.B.S. ___, BRB No. 97-672
(Feb. 10, 1998), the Board upheld the administrative law judge's finding that "any
performance
of maritime duties by decedent was tangential or incidental to his non-maritime work and, thus,
insufficient to confer status" under the Act. Specifically, the administrative law judge
concluded that decedent spent 13 hours per year in work which had, at most, a "tangential
connection with longshore work." Decedent's timecards revealed only rare assignments to
perform longshore work such that they were "outside the normal course of decedent's
job." As a result, the record supported a finding that decedent's work was
"momentary
or incidental" and he failed to satisfy the status requirements under Section 2(3) of the Act.
[ 1.7.1, "maritime worker" ]
In Wright v. Universal Maritime Service Corp., ___ B.R.B.S. ___,
BRB Nos. 97-0346 and 97-0346S (Aug. 20, 1997), a decision which was "published"
as of February 6, 1998, the Board held that vacation, holiday, and container royalty payments
which
Claimant earned prior to his injury were properly included in the calculation of his average
weekly
wage. It was further determined that "vacation, holiday and container royalty payments
claimant received during the period of his temporary total disability do not constitute wages
within
the meaning of Section 2(13), . . . and have no impact on his post-injury wage-earning
capacity." Finally, the Board upheld the administrative law judge's finding that Claimants'
representatives were entitled to fee awards based upon successful prosecution of their claims
where
Employer voluntarily paid temporary total disability benefits without taking vacation, holiday,
and
container royalty payments into consideration.
[ 2.13, wages; 28, attorney's fees ]
In Caserma v. Consolidated Edison Co., ___ B.R.B.S. ____, BRB
No.
97-0770 (Mar. 6, 1998), Claimant was injured while working on a barge used as a mobile energy
generating station in New York City's harbor. Claimant's duties included maintaining the
equipment
and mooring the barge in relation to movement. The ALJ had found that for there to be
coverage,
Claimant needed to be injured on a vessel on navigable waters. However, relying on
Director,
OWCP v. Perrini North River Associates, 459 U.S. 297, 15 B.R.B.S. 62 (CRT) (1983), the
Board found that there is no requirement that Claimant have a direct connection to navigation or
commerce. Thus, the Board has moved ever closer to the Fifth Circuit's liberal construction of
jurisdiction.
[ 1.6, situs; 1.7, status ]
In Jordan v. Virginia International Terminals, ___ B.R.B.S. ___,
BRB Nos. 97-1063 and 97-1063A (Mar. 23, 1998), the Board overruled Trainer v.
Ryan-Walsh
Stevedoring Co., 8 B.R.B.S. 59 (1978), aff'd in part and rev'd in pert. part, 601 F.2d
1306, 10 B.R.B.S. 852 (5th Cir. 1979)(Board version had set its own criteria/guidelines for
construing
"widow" and "widower") to conclude that Trainer had been a
deviation of past Board law. An ALJ must consider relevant state law when defining the terms
"husband" and "wife" in the Act, as these terms have been left undefined
by Congress.
[ 2.16, widow or widower ]
In Estate of Johnnie Henry v. Coordinated Caribbean Transport,
___
B.R.B.S. ___, BRB No. 97-1063 and 97-1063A (Mar. 23, 1998), the parties entered a joint
motion
for the Fifth Circuit to remand the case so that they could enter a settlement and, although
Claimant
and Employer reached a "settlement" via facsimile; Claimant died the next day
before
the parties could prepare a formal § 8(i) application. Thus, the Board found that the ALJ
had
correctly held that there was not an enforceable settlement. For there to be a §8(i)
settlement,
there must be a submission and approval of formal documents.
