Stephen L. Purcell
Associate Chief Judge for Longshore
Kerry Anzalone
Senior Attorney
William S. Colwell
Associate Chief Judge for Black Lung
Seena Foster
Senior Attorney
I. Longshore
Announcements
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A. United States Supreme Court
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B. Federal Circuit Courts
Prestenbach v. Global International Marine Inc., (Unpublished)(No. 06-30941)(5th Cir. July 12, 2007).
The Fifth Circuit upheld a Summary Judgment
Order issued in district court wherein the injured worker sued both under the
Jones Act and the LHWCA (905(b)) claiming the company he was working for was
negligent and caused his injury by failing to provide him with a fully
English-speaking crew.
As the worker presented no genuine issue of material fact in regards to his Jones Act injury,
the court affirmed the summary judgment on that issue. For the LHWCA issue,
the court noted its historical analytical approach as to determining if a
worker was an employee covered by the LHWCA. Here it noted that this was a
one-shot job raising a sunken barge, that barge raising was not a regular part
of the company’s work, and that the worker had considered himself to be a
consultant who was paid by invoice and not by pay check as a regular employee
would be paid. The court, thus found he was not an employee as defined by the
LHWCA. However, the court noted that the fifth Circuit historically extends
Section 905(b) protection to independent contractors covered by the LHWCA and
noted three duties owed by a ship owner to an independent contractor working on
his vessel. It affirmed the district court’s finding that the employer had not
breached any of these duties. The court noted that these duties relate
primarily to the physical conditions of the ship and that the worker pointed to
no cases to support a finding of negligence because of an inadequate crew, let
alone one whose only alleged inadequacy was the presence of two members who did
not speak English.
[Topic 5.2.1 Exclusiveness of Remedy and Third Party Liability--Generally]
The St. Paul Travelers
Companies, Inc. v. Corn Island Shipyard, Inc., ___ F.3d ___ (No. 06-2137)(7th Cir.
July 18, 2007).
At issue here is
whether Travelers is the umbrella carrier and obligated to pay benefits in a
LHWCA claim since the employer’s DOL carrier went bankrupt. Travelers has
argued that it is not obligated to pay benefits, under the policy contract with
employer, and that even if it would normally be obligated to pay benefits under
the circumstances presented, it was under no such obligation in this particular
case because the employer failed to provide timely notice of a claim.
Although the
court stated that it was unable to determine whether Travelers is a “carrier”
as defined in the LHWCA, it concluded that it still must determine if Travelers
qualifies as the employer’s carrier. It found that the language of Section 35
of the LHWCA requires analysis of the policy itself to determine whether a
carrier provides coverage under the LHWCA to a company. “Therefore, if the
policy creates a relationship whereby an insurance company becomes an
employer’s LHWCA carrier, then that company is subject to the LHWCA as it
relates to insurance carriers, including the notice provision set forth in
Section 35.”
After analyzing
the contract, the court concluded that the employer’s DOL carrier was to
provide unlimited LHWCA coverage. Therefore, there was nothing in excess of
the carrier’s liability under its policy for which Travelers was liable because
the other policy provided “total” coverage. “An excess policy like [Travelers]
provides coverage in excess of what is covered by a primary policy, and when a
primary policy, like [the one in place] provides full coverage for particular
liabilities there is no excess to cover.” The court specifically noted that
the contract used terms such as “covered” and “not covered” rather than terms
such as “collectible” and “recoverable.” “Simply stated, when used in this
context the terms ‘covered’ and ‘not covered’ refer to whether the policy
insures against a certain risk, not whether the insured can collect on the
underlying policy.”
Additionally, the
court found that had there been coverage via the policy, the claim would be
barred as a matter of law due to late notice.
Smith v. Seacor Maine LLC, ___ F.3d ___ (No. 06-30992)(5th
Cir. August 1, 2007).
The principle issue here was one of indemnity.
British Petroleum (BP) engaged Seacor for vessel transportation to help it
drill for oil on the Outer Continental Shelf (OCS). BP entered into a separate
contract with Greystar to provide labor services on its platform. The
indemnity provisions in both the BP/Seacor and the BP/Greystar contracts are
identical. In its contract with BP, Seacor agrees that it will indemnify BP
and BP’s contractors for any liability resulting from injuries to Seacor
employees Similarly, Greystar, in its contract with BP, agrees that it will
indemnify BP and BP’s contractors for any liability resulting from injuries to
Greystar’s employees.
Smith, an
employee of Greystar, was injured during a personnel basket transfer from
Seacor’s vessel to BP’s platform. Smith filed a LHWCA claim against Greystar
and a damage action against Seacor for alleged vessel negligence under Section
905(b). Seacor made an indemnity request against Greystar seeking indemnity.
The district court accepted Greystar’s argument that the BP/Greystar contract
was a non-maritime contract, governed by Louisiana law, and therefore the indemnity
provisions were unenforceable under the Louisiana Oilfield Indemnity Act.
Seacor argued that Smith’s suit aganst it under Section 905(b) triggers the
application of Section 905(c) and Louisiana law does not apply. However, the
court found that Section 905(c) only applies when an indemnity contract is
between the employer (Greystar in this case) and the vessel (Seacor). Thus,
Section 905(c) does not apply to the present case. Here, “[t]he non-maritime
nature of the contract under which the vessel seeks indemnity requires
application of state law.” Because Louisiana law, including the LOIA applies
to the BP/Greystar contract, the court correctly dismissed Seacor’s third party
demand.
[Topic 5.2.1
Exclusiveness of Remedy and Third Party Liability--Generally; 5.3
Exclusiveness of Remedy and Third Party Liability--Indemnification in OCSLA
Claims]
C. Federal District Courts and Bankruptcy Courts
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D. Benefits Review Board
Devor v. Department of The Army, ___ BRBS ___ (BRB Nos. 06-0872 and 07-0412)(July 25, 2007).
In this
Nonappropriated Fund Instrumentalities Act case, the claimant worked as a
bartender and was injured when he tripped while carrying two cases of beer. He
was diagnosed with chronic rotator cuff tendonitis/tear and underwent surgery.
His shoulder was re-injured during physical therapy following surgery.
The employer
initially contended that the ALJ’s decision did not comport with the APA as he
did not address all of the relevant evidence in rendering his decision.
Specifically, the employer argued that the ALJ failed to address the claimant’s
being left-hand dominant and whether the surveillance videotapes support the
claimant’s claim of being in “constant pain.” The Board rejected this
contention noting that the ALJ had discretion to credit and rely on the
claimant’s complaints of pain and to find that his complaints were supported by
medical documentation. Thus the finding was supported by substantial evidence.
Employer next
argued that it had found suitable alternate jobs. In upholding the ALJ, the
Board noted that the ALJ had found that the jobs identified by the employer
took into account the claimant’s physical and anatomical restrictions but were not
suitable because of the claimant’s persistent pain: “Although claimant is
left-hand dominant, whereas the injury was to his right shoulder, and the
videotapes could support a finding that claimant is not in ‘constant pain,’
there is substantial evidence of record supporting the [ALJ’s] finding that
claimant is totally disabled by his pain.”
Next the employer
challenged the ALJ’s denial of Section 8(f) relief. The ALJ had found that
the claimant did not have a pre-existing permanent partial disability. In
vacating the ALJ on this issue, the Board noted, “As the definition of
‘disability’ in Section 8(f) is not limited to an economic disability, a
pre-existing injury need not result in an inability to return to work. Rather,
there need only be a serious lasting condition that could motivate an employer
to discharge the employee due to the increased risk of compensation liability.
In this case, claimant had two prior shoulder surgeries, his shoulder condition
had been deemed ‘chronic’ as early as 1998 and he had been given permanent
lifting restrictions in 1999.” These facts demonstrate that the claimant did
not recover from his prior injuries without any restrictions. The Board noted
that denying Section 8(f) relief here would, in effect, restrict a pre-existing
permanent partial disability to one causing economic disability while ignoring
the evidence of a chronic condition which limited the claimant’s overall
physical capabilities.
Finally, noting
that the Third Circuit, wherein this case arose, had not addressed the
specific requirements for an employer’s liability for attorney fees under
Section 28(b), the Board adopted the position held by the majority of circuits
and found that it would require an informal conference in order for Section 28(b)
to apply.
[Topics 23.1
Evidence—APA—Generally; 23.3 Evidence—Surveillance Evidence; 8.2.4.2 Extent of
Disability--Suitable Alternate Employment: Employer must show nature, terms,
and availability; 8.2.4.7 Extent of Disability--Factors affecting/not affecting
employer’s burden; 28.2 Attorney’s Fees—Employer’s Liability]
Lee v. Bath Iron Works Corp. (Unpublished)(BRB Nos. 06-0147 and 06-0509)(July 30, 2007).
Here the employer
argued that its failure to file a first report of injury as required by Section
13(a) of the LHWCA should not toll the one year statute of limitations pursuant
to Section 30(f) of the LHWC since the employer had no knowledge of an alleged
work-related injury until after the limitations period had expired. The Board
found that the relevant issue with respect to the applicability of Section
30(f) is whether the employer received notice or gained knowledge of the
alleged injuries during the relevant filing period, i.e., after the claimant
became aware of the relationship between the decedent’s death and her
disability and the employment. The ALJ was instructed on remand to determine
whether the claimant’s correspondence with the employer provided the employer
with knowledge for purposes of Section 30(a), and if so, the relevant
limitations periods would be tolled by Section 30(f) from employer’s receipt of
that correspondence until an injury report was filed by the employer.
[Topics 30.7
Reports—Employer’s Knowledge of Injury; 30.8 Reports—Tolling Section 13(a)]
E. ALJ Opinions
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F. Other Jurisdictions
[Ed. Note: The following three cases are included for informational purposes only.]Coppola v.
Logistec Connecticut, 283
Conn. 1, ___ A.2d ___, (SC 17604)(Supreme Court of Connecticut July 3, 2007).
The
state has concurrent jurisdiction with the federal government over claims
involving injuries sustained on navigable waters when the employer and the
employee are locally based, the employment contract is performed locally, the
injury occurred on the state’s territorial waters and the employer was required
under the state act to secure compensation for any land based injuries
sustained by the employee.
Diblase v. Logistec Connecticut, Inc.,
925 A.2d 311 (SC 17670)( Supreme Court of Connecticut July 10, 007).
Citing Coppola, above, the Supreme Court of Connecticut overturned the
compensation review board (which had upheld a commissioner) and found that the
workers compensation commission had concurrent jurisdiction over a claim where
the injury occurred on the navigable waters of the United States. The Supreme
Court found that the federal government did not have exclusive jurisdiction.
Ashjian v. Orion Power Holdings, Inc.,
(NY 51425U)(New York Sup. Ct. July 13 2007).
A utility worker injured on a barge during a gas conversion project was awarded
workers’ compensation and later brought suit on negligence grounds against
third parties. He had been working on a barge, which along with other barges,
formed part of a floating power plant. They were only moved for repairs every
several years. When the worker moved to amend his complaint to include New York labor law, the third party defendants argued that the New York labor laws were
pre-empted by the LHWCA. The court found that New York labor law was not
preempted and allowed the worker to amend his complaint.
II. Black Lung Benefits Act
NOTE: Due to timing of the issuance of Recent Significant Decisions
#187 for June 2007, significant black lung decisions issued in July were
included at that time.
