Employer appealed the ALJ's decision to the Board and, around the same time, filed a motion for reconsideration with the ALJ, which was denied. Thereafter, Employer filed a second notice of appeal with the Board along with a cover letter asking the Board to consolidate it with the appeal field earlier. The Board dismissed Employer's original appeal as premature and construed the second notice of appeal as an appeal of all the underlying decisions. The Board then reversed the ALJ's decision that Claimant was an involuntary retiree, on the ground that "there is no evidence that [Claimant] left his employment in 1985 due to his lung disease." On remand, the ALJ awarded permanent partial disability compensation from 1993, when a medical report first linked Claimant's illness to his past employment; and denied reconsideration of this decision. The Board affirmed.
The Second Circuit rendered the following holdings. First, the Court held that the Board acted in accordance with its procedural regulations in concluding that Employer's second notice of appeal, in conjunction with the cover letter, sought review of all previous ALJ decisions. Second, the Court concluded that although Claimant experienced health problems in 1985, the Board properly concluded that the record did not support the existence of a permanent respiratory impairment at that time. Finally, the Court held that, on remand, the ALJ correctly determined that he was precluded by the Board's prior decision from finding that Claimant's disability arose is 1985. The Board had found no evidence that Claimant's lung condition affected his ability to perform his job in 1985 and further noted that mere diagnosis of an illness and evidence of pleural thickening were insufficient to support a finding of disability. In the circumstances of this case, the Board's determination that Claimant was not disabled by a work-related condition in 1985 necessarily implied that there was also insufficient evidence that he suffered any impairment from a work-related condition at that time. The ALJ, therefore, did not err in finding that the onset of Claimant's impairment was in 1993.
[Topic 2.2.13 Occupational diseases: general concepts; Topic 2.2.14 Occupational disease & disability; Topic 8.2.4.7 Voluntary withdrawal from labor market]
B. Benefits Review Board
K.M. v. Lockheed Shipbuilding, __ BRBS __, BRB No. 08-0403 (Dec. 30, 2008).
The Board affirmed an ALJ's identification of a responsible employer in a claim filed by decedent's widow against three employers potentially liable for decedent's death due to asbestos exposure.
The Board upheld its interpretation of the Ninth Circuit's case law on responsible employer in McAllister v. Lockheed Shipbuilding, 41 BRBS 28, 33 (2007)(McAllister II). The Board set forth the applicable law as follows (citations omitted): Where a death is work-related, it is for the employers to establish which of them is liable. In cases involving claims against multiple employers, the burden is placed on each employer to exculpate itself from liability. In an occupational disease case, the responsible employer is the last covered employer to expose the employee to injurious stimuli prior to the date he becomes aware that he is suffering from an occupational disease arising out of his employment. To defeat liability, the employers bear the burden of establishing either that the employee was not exposed to injurious stimuli in sufficient quantities while working for them or that the employee was exposed to injurious stimuli while working for a subsequent covered employer, if any. (The Board noted, however, Fifth and Fourth Circuit precedent applying no minimal exposure rule.) The responsible employer determination is to be made without reference to the Section 20(a) presumption. If there is uncertainty as to which employer was last chronologically, then the Ninth Circuit and the Board assign liability to the employer claimed against. If no employer presents persuasive exculpatory evidence, then liability is assigned to the later employer.
Each employer must persuade the fact-finder, simultaneously not sequentially, of its position by a preponderance of the evidence. See McAllister II. The Ninth Circuit does not require the later employer to bear any initial burden (citations omitted). An ALJ need not look at the evidence chronologically. Placing the burden on all employers and not just the last employer does not eliminate the requirement of a "rational connection" between exposure and causation. Rather, it emphasizes this requirement by allowing the ALJ to weight all the evidence simultaneously to determine when exposure last occurred. Here, the ALJ did not err in concluding that, more likely than not, decedent was not exposed to asbestos at the last employer's facility.
[Topic 2.2.16 Occupational diseases and the responsible Employer/Carrier]
G.S. v. Marine Terminals Corp., __ BRBS __, BRB No. 08-0611 (Dec. 19 2008).
The Board held that an ALJ erred in awarding benefits to Claimant who, after consuming alcohol at work, was injured when he fell over the bull rail onto a ledge while urinating. Claimant's violation of Employer's rule against drinking did not remove him from the course of employment. Under the Act, an injury occurs in the course of employment if it occurs within the time and space boundaries of employment and in the course of an activity whose purpose is related to the employment. The Section 20(a) presumption applies to this question, and thus, the burden was on Employer to produce substantial evidence that Claimant's injury did not occur in the course of employment.
The injury occurred within the time and space boundaries of Claimant's employment as it occurred on Employer's premises during the work day (citation omitted). Claimant had been drinking during the work day and, after finishing his work, continued to drink in Employer's van used to transport employees. Generally, employees who, within the time and space limits of their employment, act to accommodate personal comforts do not thereby leave the course of employment. Thus, the fact that Claimant was urinating did not take the injury outside the course of his employment.
Claimant's violation of the alcohol rule did not, per se, remove him from the course of his employment. Pursuant to Section 4(b), compensation under the Act is payable "irrespective of fault." The Board cited with approval the "work rule" cases decided under state workers' compensation laws, which hold that an employee who violates a rule prescribing the manner in which he should perform his duties acts within the course of employment, while an employee who violates a rule that limits the scope of work which he is authorized to do is thereby removed from the course of employment.
Nevertheless, entitlement to compensation was barred under Section 3(c), which expressly bars recovery if "the injury was occasioned solely by the intoxication of the employee …." This provision must be applied in conjunction with Section 20(c), which states that, in the absence of substantial evidence to the contrary, it is presumed that the injury was not occasioned solely by the employee's intoxication. If employer produces substantial evidence rebutting this presumption, then the claimant bears the burden of persuading the ALJ that his intoxication was not the sole cause of his injury.
Here, the ALJ erred in finding that Employer failed to rebut the Section 20(c) presumption, where two qualified physicians testified that intoxication was the sole cause of the injury, Claimant testified that he was inebriated to the point of being unable to recall the incident, and Employer's manager testified as to the absence of hazards in the area. The ALJ inappropriately speculated that the fall may have been due to Claimant's being distracted, careless, or in a hurry, without a basis in the record and without considering that such factors may have been directly related to his alcohol consumption.
[Topic 3.2.1 Coverage – Other exclusions – Solely due to intoxication]
J.R. v. Bollinger Shipyard, Inc., __ BRBS __, BRB No. 08-0508 (Dec. 19, 2008).
The Board affirmed an ALJ's award of temporary total disability and medical benefits. The ALJ did not err in concluding that Claimant was incapable of performing any work by according the greatest weight to Claimant's description of his back pain and his treating physician's opinion, supported by Claimant's use of pain treatment and objective evidence (MRI).
The ALJ's finding that Claimant was medically unable to perform any work rendered Employer's vocational evidence moot. Nonetheless, the Board noted that a claimant's refusal to cooperate with Employer's vocational expert is a factor which should be considered in evaluating the expert's testimony. Here, the ALJ acknowledged evidence of Claimant's refusal to cooperate, and found that Employer's vocational expert was able to render a vocational assessment based on Claimants' medical reports and vocational background.
The Board further held that Claimant's status as an illegal alien did not preclude him from receiving benefits under the Act, as the Act does not differentiate between compensation paid to illegal aliens and that paid to legal residents and/or citizens of the United States. The Board noted that the ALJ found, based on Hernandez v. M/V Rajaan, 848 F.2d 498 (5th Cir. 1988), that Employer presented no evidence that Claimant "was about to be deported or would surely be deported" in order to establish that he has no legal wage-earning capacity. Indeed, Claimant had been working for Employer and earning wages. Additionally, the ALJ appropriately concluded that "the issue of illegal alienage" does not affect compensation entitlement under the Act, citing Rivera v. United Masonry, Inc., 948 F.2d 774, 25 BRBS 51(CRT)(D.C. Cir. 1991), aff'g 24 BRBS 78 (1990)(claimant's status as an illegal alien not a proper factor in determining the availability of suitable alternate employment). In light of Rivera, Employer's assertion that it could not show suitable alternate employment due to Claimant's status was without merit.
Moreover, Employer cited no authority for its position. The definition of "employee" in Section 2(3) (including specific exceptions) does not differentiate between individuals based on their citizenship status. Furthermore, Section 9(g), and its implementing regulation, 20 C.F.R. §702.142, provide for payment of compensation to non-resident aliens "in the same amount as provided for residents" (with certain stated exceptions).
[Topic 8.2.4.7 Partial disability/suitable alternate employment – Factors affecting/not affecting employer's burden – Status as an illegal alien – Employee's non-cooperativeness with employer's vocational exert]
[no cases to report for this month]
[ENDNOTES]
1 Non-essential procedural history is omitted.
