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
Grant v. Director, OWCP, ___ F.3d ___ (No. 06-60439)(5th Cir.
September 28, 2007).
At issue is
whether the Board properly interpreted what constitutes the “filing” of a
compensation order in the District Director’s Office under the LHWCA and its
implementing regulations. Here the ALJ had sent a dismissal order to the
parties via regular mail and to the District Director by express mail. The
District Director’s office received the ALJ’s order on 14 December 2005. Upon
receipt of the order however, the District Director took no further action; he
did not formally date and file the order, nor did he serve it on the parties,
all contrary to 20 C.F.R. § 702.349. When the claimant’s counsel inquired
whether the District Director had served the order, the District Director
responded: “The dismissal of your case was served directly by the [OALJ] and
was therefore not ‘filed’ in my office.” The Board agreed and summarily
dismissed.
In deciding this
matter, the Fifth Circuit stated that it would afford deference to the
OWCP’s interpretation of what, under the LHWCA constitutes the filing of a
compensation order by the District Director. Referencing 20 C.F.R. §702.349,
the court stated that “the regulation’s plain meaning reveals: (1) filing a
compensation order requires a ‘formal act’ by the District Director; and (2)
the District Director can only file the order after it is received. Stated
differently, mere receipt of the order is insufficient to trigger the 30-day
appeals period.” The court dodged the issue of service by the District
Director: “As discussed supra, filing requires, at a minimum, formal action by
the District Director. Because such action was not completed in the proceeding
at hand, it is immaterial for purposes of this appeal whether ‘filing’ under
section 19 of the LHWCA also requires service of the order upon the parties by
the District Director.” The Board’s decision was vacated and remanded with
instructions to require the District Director to file the ALJ’s order of
dismissal consistent with the opinion.
[Topic 14.4 Payment of
Compensation--Compensation Paid Under Award; 19.6 Procedure—Formal Order
Filed With District Director]
Nabors Offshore Drilling Inc. v. Smoot, (Unpublished)(No. 06-61172)(5th Cir. September
25, 2007).
The court found
that under the Section 20(a) presumption, there was sufficient evidence on
which the ALJ could base a finding of psychological problems being causally
related to a workplace accident. It is not the role of the court to re-weigh
the evidence or make credibility determinations.
[Topic 20.2.4 Presumptions--ALJ’s Proper Invocation of Section 20(a)]
Franks Casing Crew & Rental Tools Inc. v. Dupre,
(Unpublished)(No. 06-60968)(5th Cir. September 26, 2007).
In this Section 20(a) issue matter, the
Employer/Carrier argued that the claimant’s story was not believable because he
did not tell anyone his back injury was work-related until he made his claim
for benefits. However, the court noted that he testified otherwise and offered
reasonable explanations for his actions and that therefore, there existed
evidence to support both side’s claims. The court went on to say that the ALJ,
as the fact finder, was entitled to select between inferences and make credibility
determinations as long as his decision was supported by the evidence and the
law.
[Topic 20.2.4
Presumptions--ALJ’s Proper Invocation of Section 20(a)]
ADM/Growmark River System, Inc. v. Director, OWCP, (Unpublished)(No.
06-60923)(5th Cir. September 26, 2007).
The court found
that there was sufficient evidence for the ALJ to reach his conclusions on
causation as well as the inability of the claimant to return to his previous
employment. The employer had not rebutted the claimant’s prima facie case that
he suffered an undisputed knee injury at work and that the knee injury caused
another accident at work which lead to a serious back injury. Additionally,
the court found that the ALJ was justified in concluding that the claimant’s
alleged work in short bursts did not contradict the expert testimony that he
could not return to the same job where the work is sustained over a much longer
duration.
[Topic 20.2.4 Presumptions--ALJ’s Proper Invocation of Section 20(a)]
C. Federal District Courts and Bankruptcy Courts
Magnon v. Forest Oil Corp., ___ F. Supp. 2d ___ (Civ. Act. No. 06-0587)(W.D. La. September 18, 2007).
At issue in this
summary judgment matter was whether the defendant was the borrowed employer of
the plaintiff making the defendant immune from tort liability under the LHWCA.
In deciding the matter, the court looked to the Fifth Circuit’s “Ruiz
test” and noted that the test’s principle focus was (1) was the second employer
itself responsible for the working conditions experienced by the employee, and
the risks inherent therein; and (2) was the employment with the new employer of
such duration that the employee could be reasonably presumed to have evaluated
the risks of the work situation and acquiesced thereto. Ruiz v. Shell Oil
Co., 413 F. 2d 310 (5th Cir. 1969).
[Topics 2.2.16 Definitions—Occupational Diseases and the Responsible Employer/Carrier—Borrowed
Employee Doctrine; 4.1.1 Compensation Liability Employer
Liability—Contractor/Subcontractor Liability; 5.1.1 Exclusiveness of Remedy
and Third Party Liability—Exclusive Remedy]
Breaux v.Halliburton Energy Services, Inc., ____ F. Supp
2d ____ (Civ. Act. No. 04-1636 Sec. “S” (4))(E.D. La. September 24, 2007).
In this Section
33(a) subrogation matter, Employer’s carrier rightfully intervened to recover
what it had paid in compensation, death and funeral expenses from a third party
who had settled with the claimant. Summary judgment for the carrier was
granted.
[Topic Compensation For
Injuries Where Third Persons Are Liable—Section 33(a): Claimant’s Ability to
Bring Suit Against A Potentially Negligent third Party]
D. Benefits Review Board
R.R. v. Marine Terminals Corp., (Unpublished)(BRB No. 07-0920)(September 17, 2007).
The Employer’s
appeal of an ALJ’s Interlocutory Order was dismissed and Employer was denied a
stay where the ALJ found that the claimant’s counsel, licensed elsewhere, may
appear as the claimant’s representative in a state in which he is not licensed
without affiliating himself with local counsel. In finding that there was “no
apparent error” with the ALJ’s reasoning, the Board noted that 29 C.F.R. §18.34
gives claimant’s counsel this right to practice.
S.K. v. Service Employers International, Inc.,
(Unpublished)(BRB Nos. 06-0591 and 07-0710).
In this Defense
Base Act case, average weekly wage was addressed. The Board found that a
Section 22 Modification request was a proper way for the claimant to seek a
higher AWW than that first allotted her by the ALJ. The ALJ’s denial of modification
was vacated with instructions to consider the claimant’s Section 10(c)
contentions. On remand the ALJ is to consider the probative value of the other
employees’ wage records submitted by employer in response to the claimant’s
request. The Board noted that the ALJ may address the claimant’s request for
an adverse inference against the employer for its alleged failure to produce
detailed wage records of other employees. [Originally, the employer’s records
listed only gross monthly wage amounts for periods post-dating the claimant’s
injury. The records did not state the terms of employment or indicate the
number of hours worked. Subsequently other records were admitted and the
employer stated that all but one of these employees had substantially the same
employment contract as the claimant, including their base pay, except that the
“uplifts” (foreign service bonus, area differential and hazard/danger pay) had
increased to 75 percent. Claimant’s uplifts had totaled 55 percent.]
Claimant had been
employed as a laundry service worker in Baghdad for five weeks prior to being
injured in an auto accident. Previously she had been a pre-school teacher in Houston.
The employer had argued that her AWW should be based on her wages for the year
preceding the injury, including the amounts earned as a teacher. The ALJ had
determined that neither Sections 10(a) nor 10(b) applied since she had not
worked in the same employment for substantially all of the year prior to the
injury.
The Board also
agreed with the claimant that the ALJ erred in dividing the claimant’s actual
earnings by 5 3/7 weeks to determine the weekly amount the claimant earned
prior to her injury. Although the claimant began working for the employer on
August 26, 2004, she did not arrive in Iraq until August 28, and the parties
stipulated that the claimant had worked for the employer for only five weeks
before she was injured. Thus, her earnings should be divided by five rather
than 5 3/7.
[Topic 60.2.9 Longshore
Act Extensions—Defense Base Act--Wages]
E. ALJ Opinions
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F. Other Jurisdictions
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II. Black Lung Benefits Act
Benefits Review Board
In M.L.K. v. Expansion Coal Co., BRB No. 06-0933 BLA (Sept. 25, 2007)
(unpub.), Employer filed a petition for modification and submitted a
physician’s report that reviewed evidence in the record at the time the claim
was originally adjudicated. The Board noted that:
. . . the administrative law judge found
that, because (the physician’s) opinion was not based upon any new evidence,
employer could have submitted (the physician’s) report when the case was
previously before Judge Smith. (citation omitted).
Slip op. at 6. The Board then concluded that “the
administrative law judge did not abuse his discretion in considering the fact
that employer could have developed and submitted (the physician’s) report at an
earlier date.”
Although the administrative law judge
considered the physician’s opinion, he accorded the opinion diminished weight
based on the foregoing reason as well as the fact that the opinion was
equivocal and the physician only offered a peremptory rejection of certain
medical literature submitted in the case. The Board affirmed the
administrative law judge’s finding that Employer failed to demonstrate a
mistake in a determination of fact based on consideration of all evidence of
record.
