Thomas M. Burke
Associate Chief Judge for Black Lung
I. Longshore
ANNOUNCEMENTS
The latest
edition of the Tulane Maritime Law Journal, Vol. 30, 2006, contains an
interesting article entitled, “The Elusive Vessel of Maritime Jurisprudence and
Navigation Through the Jones Act and Longshore and Harbor Worker’s Compensation
Act in Light of Stewart v. Dutra Construction.”
COURTS
A. United States
Supreme Court
Lockheed Martin Corp. v.
Morganti, ___ U.S. ___ (No. 05-907)(Cert. denied, May 30, 2006).
Supreme Court let
stand the Second Circuit’s holding that: 1) a lake was navigable for purposes
of the LHWCA because it could physically support commercial shipping, and 2) as
a matter of law, a floating object cannot be a fixed platform or artificial
island. In this case a test engineer drowned while leaving a moored barge
where sonar equipment components were tested. The Second Circuit found that he
was a covered employee under the LHWCA. The court refused to address the issue
of whether to adopt the “transient and fortuitous” exception to the general
rule that a person injured on actual navigable waters is engaged in maritime
employment. Here the Second Circuit found that the claimant spent a
substantial amount of his time in maritime employment. He spent 1.5 to 2 days
a week testing sonar equipment transducers on the barge. The barge was moored
in the lake and unable to move on its own; therefore it was analogous to a
floating platform. He reached the barge by shuttle boat.
[Topics 1.4.3
Jurisdiction/Coverage—Vessel; 1.5.2 Jurisdiction/Coverage—Navigable waters]
_______________________________
B. Circuit Court
Cases
Tagliere v. Harrah’s
Illinois Corp., (Unreported)(No.
05-2637)(7th Cir. May 3, 2006).
The 7th
Circuit reversed the dismissal of a personal injury suit filed under
admiralty law and involving a riverboat gambling “vessel.” The district court
had dismissed the matter for lack of admiralty jurisdiction. However, the
circuit court found that no determination had been made as to whether the
riverboat gambling ship was indefinitely moored, and thus retained its status
as a “vessel.” In an interesting explanation, the court concluded:
We
conclude that the district court erred in dismissing the suit, though it is
open to the defendant to show on remand, it can, that its boat was permanently
rather than merely indefinitely moored when the accident occurred and was
therefore no longer a “vessel” for purposes of admiralty jurisdiction. The
difference between “permanently” and “indefinitely” in this context is vague
and has not been explored by the parties. The Stewart [v. Dutra
Construction Co., 543 U.S. 481, 494 (2005)] case suggests that he
boat must be permanently incapacitated from sailing. Yet maybe—by analogy to
the difference between domicile and residence—a boat also is “permanently
moored when its owner intends that the boat will never again sail, while if he
has not yet decided its ultimate destiny it is only “indefinitely” moored.
These are matters for exploration on remand.
[Topics 1.4.3
Jurisdiction/Coverage—Vessel; 1.4.3.1 Jurisdiction/Coverage—Floating Dockside
Casinos]
____________________________________
Laird v. Sause Brothers,
Inc., (Unpublished) (No. 04-76164)(9th
Cir. June 9, 2006).
The Board
affirmed the attorney fee awards issued by the ALJ and the District Director
where both awarded a lower rate than that requested. The court found that the
applicable regulations had been properly applied and that, under the particular
circumstances of the case, a rationale determination had been made and there
had not been an abuse of discretion.
[Topic 28.5.1 Attorney
Fees—Amount of Award—Sufficient Explanation]
____________________________________
Centennial Stevedoring
Services v. Director, OWCP, 2006U.S.
App. LEXIS 15938, (Unpublished)(No. 04-72224)(9th Cir. June
22, 2006).
At issue here was
whether Centennial was the last responsible employer. Both the ALJ and the
Board found that it was the last responsible employer. Centennial had moved to
reopen the record. The Ninth Circuit found that there was no abuse of
discretion in denying Centennial’s Motion to Reopen the Evidentiary Record.
The court found that the new evidence of “collusion” on which the motion was
based, did not undermine the validity of the documentary and testimonial
evidence on which the ALJ relied. Cf. E.P. Paup Co. v. Director, 999
F.2d 1341, 1347 n.1 (9th Cir. 1993)(recognizing the ALJ’s
broad discretion to correct mistakes in the record.). The court also found
that the new evidence did not establish that the claimant contravened the goals
of the LHWCA. See Keenan v. Director, 392 F.3d 1041, 1043-44 (9th
Cir. 2004).
[Topics 2.2.16
Definitions—Responsible Employer; 23.1 Evidence—APA Generally; 23.2
Evidence—Admission of Evidence; ]
______________________________
National Steel and
Shipbuilding co. v. Avant, Southwest Marine, and OWCP, 2006 U.S. App. LEXIS 13709, (Unpublished) (No.
04-72238)(9th Cir. May 31, 2006).
This is a “run of
the mill” aggravation/ last responsible employer case where the treating
physician subsequently changed his opinion at trial. The court found that the
ALJ provided a rational basis for crediting the physician’s pretrial reports
and rejecting his subsequent contrary testimony.
[Topics 2.2.6
Definitions—Aggravation/Combination; 23.5 Evidence—ALJ Can Accept or Reject
Medical Testimony; 70.1 Responsible Employer--Generally]
_______________________________
Universal Maritime
Services Corp v. Ricker,
(Unpublished), 2006 U.S. App. LEXIS 14978, (No. 05-3100)(3rd Cir.
June 16, 2006).
The court upheld
the ALJ in this aggravation case. The claimant had filed a claim for
disability maintaining that his disability was caused by the exacerbation of
his chronic obstructive pulmonary disease (COPD) and cor pulmonale as a result
of his exposure to industrial irritants such as dusts and diesel fumes at the
docks. The employer had denied responsibility contending that the worker’s
disability was caused by smoking.
[Topics 2.2.6
Definitions—Aggravation/Combination; 2.2.8 Definitions—Intervening
Event/Causation vis-à-vis Natural Progression; 2.2.13 Definitions—Occupational
Diseases: General concepts]
_________________________________
McBride v. Halter Marine,
Inc., 2006 U.S. App. LEXIS 14367, ___
F.3d ___ (5th Cir. June 6, 2006).
The court upheld
the Board and ALJ in this psychological injury issue case. This matter had
been to the ALJ four times. The ALJ found that the alleged psychological
condition was not causally related to on-the-job injuries sustained by the
claimant. The claimant first alleged that he suffered psychological injuries
more than two and a half years after his accident.
[Topic 20.2.1
Presumptions—Prima Facie Case]
_________________________________
Texaco Exploration and
Production, Inc., v. Amclyde Engineered Products Co., Inc., 448 F.3d 760 (5th Cir. May 5,
2006).
In this OCSLA
case federal subject matter jurisdiction was extended to a tort action of
lessees of an offshore federal lease in a suit that resulted from the loss of a
platform deck section. The court found that admiralty jurisdiction and
maritime law did not apply so as to oust the substantive law of the adjacent
state. Therefore, the plaintiff was entitled to a jury trial.
[Topic 60.3.4 Longshore
Act Extensions--OCSLA--OCSLA v. Admiralty v. State Jurisdiction]
__________________________________
C. Federal District
Court Decisions/Bankruptcy Court
Phillips v. Tidewater
Barge Lines, Inc., 2006 U.S. Dist. LEXIS 40442, ___ F. Supp. 2d ___ (No. CV 05-1157-ST).
In a confusing conclusionary statement in this Summary
Judgment Motion Order, the federal district court judge stated:
Defendants
moved for summary judgment on this claim arguing it is preempted by the LHWCA.
The magistrate, working on the assumption that the LHWCA as opposed to the
Jones Act applies in this case, found the issue was premature for resolution
and recommended denying summary judgment. In light of this opinion, it is no
longer clear whether the LHWCA or the Jones Act applies. Thus, I agree that
whether or not this claim is preempted by the LHWCA is premature.
[Topic 1.4.1
Jurisdiction/Coverage—LHWCA v. Jones Act]
__________________________________
Abt v. Dickson Equipment
Company, (Unpublished) 2006 U.S. Dist. LEXIS 42062 (SD. of Texas June 22, 2006).
In this
negligence claim, the district court judge granted a Motion to Dismiss for Lack
of Subject Matter Jurisdiction on the grounds that a longshore crane operator,
who fell into the Houston Ship Channel when his crane broke, did not come
within admiralty/maritime jurisdiction. The judge noted that when the crane
broke, it was hanging over water, but was not working in connection with a
vessel, but rather was being moved from one end of the dock to the other end of
the dock. Therefore, the judge concluded, there was not a substantial
relationship to maritime activity even though the incident was of the type that
could disrupt maritime commerce.
[Topic 5.1 Exclusiveness
of Remedy and Third Party Liability]
__________________________________
D. Benefits Review
Board Decisions
Durham v. Embassy Dairy, ___ BRBS ___ (BRB No. 05-0778)(May 24, 2006).
Although, this
case arises under the D.C. Workmen’s Compensation Act, since it existed prior
to the 1984 Amendments, the claimant is entitled to the rights afforded her
under the LHWCA. The Board found that since there was no indication that the
parties agreed to the issuance of a compensation order, the district director
was without authority to issue an order awarding death benefits to the
claimant. Furthermore, the board noted, ”Because factual issues exist, such as
when employer received notice of decedent’s death, whether employer failed to
file a Section 30(a) report, whether the time for filing a claim was tolled,
when claimant filed her claim and whether it was timely filed, disputed issues
must be resolved by an [ALJ].”
[Topic 60.1.1 Longshore
Act Extensions—DCWCA—Applicability of the D.C. Act v. the LHWCA]
_____________________________________
Stallings v. DYNCORP, ___ BRBS ___ (BRB No. 05-0673)(May 5, 2006).
The issue here
was whether a claimant was employed in maritime employment. The claimant was a
welder who worked for his employer at the Norfolk Naval shipyard. He worked in
a building in which employees service ground-support equipment (GSE) belonging
to ships docked at the shipyard. Specifically, the claimant repaired hydraulic
“jennies,” gas turbines, fire trucks, tow tractors, and bomb lifts. This
equipment was necessary to the operation of aircraft onboard the aircraft
carriers and some of the equipment also could be used on land. The equipment
was brought to the building and returned to the ships by naval personnel. The
claimant testified that he went on board the vessels very infrequently to see
how a piece of equipment needed to be refitted for use on the ship. When
pressed, the claimant could recall only one instance when he went on board a
vessel to make a template for a bomb hook. The claimant was injured in the
building while repairing a “jenny.”
The Board upheld
the ALJ’s findings that the claimant did not repair a vessel, components of a
vessel, ort equipment used to load or unload vessels. Rather the ALJ found
that the claimant’s job duties furthered the non-maritime purpose of
maintaining equipment used for aircraft. The ALJ stated that although the
claimant repaired equipment essential to the mission of the naval vessels, the
claimant did not repair equipment essential to the operation of the naval
vessels. Thus the ALJ concluded that the claimant was not engaged in covered
employment.
[Topic 1.7.1
Jurisdiction/Coverage—STATUS—“Maritime Worker” (“Maritime Employment”)]
_________________________________
Ambo v. Friede Goldman
Halter, (Unpublished)(BRB Nos.
05-0665 and 05-0666)(May 8, 2006),
This case
provides another example of the Board’s allowing post-insolvency attorney’s
fees to be imposed on a state guaranty association under the LHWCA: “We hold
that the provisions of the Longshore Act governing the securing of compensation
with an ‘association’ are sufficiently broad so as to encompass this entity as
a ‘carrier’ for purposes of shifting fee liability to [the association] in
appropriate cases.”
[Topic 28.2 Attorney
Fees—Employer’s Liability]
________________________________
II. Black
Lung Benefits Act
A. Circuit courts of appeals
In Consolidation Coal Co. v. Director, OWCP
[Williams], ___ F.3d ___, Case No. 05-2108 (4th Cir. July 13,
2006), the court held that a miner’s subsequent claim was not barred by the
three year statute of limitations at 20 C.F.R. § 725.308 based on a medical
opinion finding total disability due to pneumoconiosis submitted in conjunction
with his prior denied claim. Citing to Lisa Lee Mines v. Director, OWCP,
86 F.3d 1358 (4th Cir. 1996), the court reiterated that “the legal
conclusion attendant with a prior denial—i.e., that the miner was not
eligible for benefits at the time of that decision—must be accepted as correct
. . ..” As a result, a physician’s diagnosis of total disability due to
pneumoconiosis in the first claim must be treated “as a misdiagnosis in light
of the denial of [the] first claim” and the court held that it “must similarly
conclude that the (mis)diagnosis had no effect on the statute of limitations
for his second claim.”
The court noted that pneumoconiosis is latent and
progressive and, consequently, it concludes that “nothing bars or should bar claimants
from filing claims seriatim . . ..” The court stressed that, under §
725.309, “only new evidence following the denial of the previous claim,
rather than evidence predating the denial, can sustain a subsequent claim.”
The court noted:
In light of the standard articulated in Lisa
Lee Mines, we note that Dr. Lebovitz’s diagnosis, which related solely to
Williams’ condition in 1995, could not have sustained a subsequent claim that
his condition had materially worsened since the initial denial of benefits in
1996. It would be illogical and inequitable to hold that a diagnosis that
could not sustain a subsequent claim could nevertheless trigger the statute of
limitations for such a claim.
Next, the court affirmed the Administrative Law
Judge’s decision declining to recuse himself. Employer argued that the Judge’s
comments at the hearing, and in a discovery order, demonstrated bias against
coal companies. The court reasoned that “the tone and tenor of frustration
expressed in the ALJ’s comments do not, in and of themselves, establish bias
against Consolidation” and, “given counsel’s behavior, it is not surprising
that the ALJ became annoyed.” The court further denied Employer’s challenge to
a discovery order as indicative of bias, reasoning that “judicial rulings alone
almost never constitute a valid basis for a bias or partiality ruling.”
The court also held that the Administrative Law Judge
properly applied an adverse inference of bias to the reports of Employer’s
medical experts because of Employer’s refusal to comply with the ALJ’s
discovery orders. Specifically, Employer refused to respond to interrogatories,
including how often its medical expert diagnosed pneumoconiosis. Because
Employer failed to comply with the Judge’s discovery order, the court found
that the Administrative Law Judge properly treated Employer’s expert medical
reports “as if Consolidation had complied with discovery and as if its
responses to that discovery had demonstrated significant bias by both witnesses
toward employers as a class and [it’s law firm’s clients as a class].”
Turning to evidentiary issues, the court held that the
Administrative Law Judge properly permitted Claimant to designate two medical
reports (out of three reports filed) in support of his claim as permitted by 20
C.F.R. § 725.414. In this vein, the court cited to the Board’s decision in Dempsey
v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) with approval.
Finally, the court held that the Administrative Law
Judge properly credited a physician’s opinion that the miner’s airflow
obstruction was caused by cigarette smoking as well as coal dust exposure.
Employer had argued that the opinion was flawed because the physician did not
“apportion [Claimant’s] lung impairment between cigarette smoke and coal mine
dust exposure . . ..” The court disagreed and held that physicians need not
make “such particularized findings.”
[ three year statute of limitations; expert bias; recusal;
limitations at § 725.414 ]
B. Benefits Review Board
By published decision in a case arising in the Sixth
Circuit, Sturgill v. Bell County Coal Corp., 23 B.L.R. 1-___, BRB No.
05-0343 BLA (May 30, 2006) (en banc) (J. McGranery, dissenting), the Board held
that the district director’s preliminary finding of eligibility in conjunction
with the miner’s 1981 claim did not trigger the three year statute of
limitations at § 725.308 to bar the miner’s 2001 subsequent claim.
Claimant and the Director maintained that
a district director’s finding of entitlement did not constitute a medical
determination of total disability due to pneumoconiosis as contemplated by §
725.308 of the regulations. On the other hand, Employer maintained that the
district director’s finding of entitlement in the first claim implicitly meant
that the medical elements of entitlement were satisfied. Further, Employer
argued that there were medical opinions in the record, pre-dating the miner’s
2001 claim by more than three years, which contained findings of total
disability due to pneumoconiosis.
The Board agreed with the Claimant’s and
Director’s position and concluded that, under § 725.308, Claimant is entitled
to a rebuttable presumption that his or her claim is timely filed and, under Tennessee
Consol. Coal Co. v. Kirk, 264 F.3d 602 (6th Cir. 2001), it is
“employer’s burden to rebut the presumption of timeliness by showing that a
medical determination satisfying the statutory definition was communicated to
[the claimant]” more than three years prior to the filing of a claim. The
Board specifically emphasized that Kirk requires a “trigger of the
reasoned opinion of a medical professional” to commence the limitations period.
[ three year statute of limitations ]
In another case arising in the Sixth Circuit, Brigance
v. Peabody Coal Co., 23 B.LR. 1-__, BRB No. 05-0722 BLA (June 29, 2006) (en
banc), the Board upheld the Administrative Law Judge’s finding that a miner’s
testimony, that two physicians advised him that he was totally disabled due to
black lung disease, was insufficient to trigger the three year statute of
limitations for filing his claim under Tennessee Consol. Coal Co. v. Kirk,
264 F.3d 602 (6th Cir. 2001). In particular, the Kirk court
held that the statute relies on the “trigger of the reasoned opinion of a
medical professional.” From this, the Board reasoned that the physicians’
opinions referred to by the miner during his testimony were not in the record
and the miner’s testimony, standing alone, did not meet the Kirk
standard for triggering the statute of limitation period.
Further, the Board upheld the Administrative Law
Judge’s finding that the miner established that he suffered from a totally
disabling respiratory impairment based on the medical opinion evidence despite
the fact that the ventilatory and blood gas testing was in equipoise. In this
regard, the Board noted that the physicians who opined that the miner was
totally disabled “had knowledge of claimant’s usual coal mine employment.” The
Board did not state what other factors the physicians considered in finding the
miner totally disabled.
[ three year statute of limitations; establishing total
disability through medical opinion evidence ]
In Weis v. Marfork Coal Co., 23 B.L.R. 1-__,
BRB No. 05-0822 BLA (June 30, 2006) (en banc) (JJ. McGranery and Boggs, dissenting),
it was undisputed that Claimant suffered from complicated pneumoconiosis and
was entitled to benefits under the Act. Employer, however, challenged its
designation as the operator responsible for the payment of benefits by
submitting x-ray evidence demonstrating that Claimant suffered from complicated
pneumoconiosis prior to the time of his employment with Employer.
A majority of the Board agreed with the
Administrative Law Judge’s finding that Employer waived its right to contest
liability by not doing so in a timely fashion before the district director as
required at 20 C.F.R. § 725.412(a)(2). Moreover, the Board upheld exclusion of
the x-ray evidence at the formal hearing as the Judge concluded that Employer
failed to demonstrate “extraordinary circumstances” pursuant to 20 C.F.R. §
725.456(b)(1), which provides, in part, that “[d]ocumentary evidence pertaining
to the liability of a potentially liable operator . . . which was not submitted
to the district director shall not be admitted into the hearing record in the
absence of extraordinary circumstances.” Citing to this regulation, and the
Department’s comments underlying its promulgation, a majority of the Board held
that § 725.456(b)(1) applies to the x-ray evidence offered by Employer to the
Administrative Law Judge. The majority agreed that the comments to the
regulation, at 65 Fed. Reg. 79999 to 80000 (Dec. 20, 2000), do not “explicitly
address the submission of ‘medical records’ as a means of escaping liability
for the payment of benefits,” but “the comments reveal the Department’s intent
that operators be required to submit ‘any evidence’ relevant to the liability
of another party while the case is before the district director.” As a result,
the majority held that “x-ray interpretations and other medical records are
included in the term ‘documentary evidence’ referenced in 20 C.F.R. §
725.456(b)(1).”
[ designation of responsible operator ]
By unpublished decision in McCoy v. Holly Beth Coal
Co., BRB No. 05-0818 BLA (May 25, 2006) (unpub.), the Board has taken a
decidedly different approach to the issue of establishing complicated
pneumoconiosis by chest x-ray evidence. In particular, a physician must check
a box indicating the presence of an A, B, or C opacity in order for a diagnosis
of complicated pneumoconiosis to be made via chest x-ray evidence. Thus, where
certain physicians did not check a box indicating the presence of an A, B, or C
opacity, but commented that there was a “1.5 centimeter mass,” “scattered
masses as large as two centimeters,” or a “1.5 centimeter nodule,” the Board
concluded that their comments did not constitute findings of complicated
pneumoconiosis under the regulations.
The Board reasoned that “’opacity’ is a term of art
used to classify pneumoconiosis” and is not based on the “size of any
finding.” Thus, where a physician finds a large “mass” or “nodule,” but does
not specifically check a box that it is a size A, B, or C “opacity,” then the
x-ray interpretation does not support a finding of complicated pneumoconiosis.
[ complicated pneumoconiosis ]
By unpublished decision in Henley v.
Cowin & Co., BRB No. 05-0788 BLA (May 30, 2006), the Board held that
where the district director dismisses a responsible operator in a claim that is
subject to the amended regulations, then any medical evidence submitted by the
dismissed operator must be excluded unless a party specifically designates the
evidence as part of its case under § 725.414 of the regulations.
In addition, the Board held that the
provisions at § 725.414 do not allow for the rebuttal of treatment records. As
a result, the Board vacated the administrative law judge’s ruling that Employer
could submit a rebuttal interpretation of a chest x-ray reading contained in
the miner’s treatment records.
[ application of § 725.414 to dismissed operator’s evidence;
no provisions allowing for rebuttal of treatment records ]