2.1 SECTION 2(1) PERSON
Section 2(1) of the LHWCA defines "person" as follows:
The term "person" means individual, partnership, corporation, or
association.
33 U.S.C. § 902(1).
2.2 SECTION 2(2) INJURY
Section 2(2) of the LHWCA defines "injury" as:
accidental injury or death arising out of and in the course of employment,
and such occupational disease or infection as arises naturally out of such
employment or as naturally or unavoidably results from such accidental
injury, and includes an injury caused by the willful act of a third person
directed against an employee because of his employment.
33 U.S.C. § 902(2).
This definition comprises the two traditional requirements of workers' compensation law: the
injury or death must (1) arise out of employment and (2) in the course of employment. The definition also
includes an occupational disease or infection which arises naturally out of employment or unavoidably
results from the accidental injury. See Bober, Compensable Injury or Death Arising Under the Longshore
and Harbor Workers' Compensation Act, 35 Loyola L. Rev. 1129 (1990).
2.2.1 Section 2(2) Vis-a-Vis Section 20(a) Presumption
In determining whether the employee has sustained an injury compensable under the LHWCA, the
judge must consider the relationship between Sections 2(2) and 20(a), the LHWCA's statutory
presumption. This latter section provides "in the absence of substantial evidence to the contrary," it is
presumed "(t)hat the claim comes within the provisions of this Act."
It is well-settled that the judge, in arriving at a decision in the claim, is entitled to determine the
credibility of the witnesses, to weigh the evidence, and draw inferences from it, and is not bound to accept
the opinion or theory of any particular medical examiner. Banks v. Chicago Grain Trimmers Ass'n, 390
U.S. 459 (1968); Todd Shipyards Corp. v. Donovan, 300 F.2d 741 (5th Cir. 1962); Scott v. Tug Mate,
Inc., 22 BRBS 164, 165, 167 (1989); Hite v. Dresser Guiberson Pumping, 22 BRBS 87, 91 (1989);
Anderson v. Todd Shipyards Corp., 22 BRBS 20, 22 (1989); Hughes v. Bethlehem Steel Corp., 17
BRBS 153 (1985); Seaman v. Jacksonville Shipyards, 14 BRBS 148.9 (1981); Brandt v. Avondale
Shipyards, 8 BRBS 698 (1978); Sargent v. Matson Terminals, 8 BRBS 564 (1978).
It further must be recognized that all factual doubts must be resolved in favor of the claimant.
Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968); Strachan Shipping Co. v. Shea, 406 F.2d 521 (5th
Cir.), cert. denied, 395 U.S. 921 (1969). But cf. Director, OWCP v. Greenwich Colleries (Maher
Terminals), 512 U.S. 267 (1994)(Held, an injured worker claiming compensation must prove the elements
of her claim by a "preponderance of the evidence;" the "true doubt" rule under which the claimant wins if
the evidence is evenly balanced, is inconsistent with Section 7(c) of the APA as that section is applied to
the LHWC.).
[ED. NOTE: Under Section 556(d) of the APA, 5 U.S.C. § 556(d), the claimant bears the ultimate
burden of persuasion by a preponderance of the evidence. Because of this allocation of the burden
of proof, the APA prohibits the application of the "true doubt" rule to claims for benefits under the
LHWCA. The "true doubt" rule is contrary to the provisions of the APA because it allows the
claimant to prevail despite a failure to prove entitlement by a preponderance of the evidence.]
Furthermore, it consistently has been held that the LHWCA must be construed liberally in favor
of the claimant. Voris v. Eikel, 346 U.S. 328 (1953); J.V. Vozzolo, Inc. v. Britton, 377 F.2d 144 (D.C.
Cir. 1967). Based upon the humanitarian nature of the LHWCA, claimants are to be accorded the benefit
of all doubts. Durrah v. Washington Metro. Area Transit Auth., 760 F.2d 322 (D.C. Cir. 1985);
Champion v. S&M Traylor Bros., 690 F.2d 285 (D.C. Cir. 1982); Harrison v. Potomac Elec. Power Co.,
8 BRBS 313 (1978).
It is now well-settled that this presumption "applies as much to the nexus between an employee's
malady and his employment activities as it does to any other aspect of a claim." Swinton v. J. Frank Kelly,
Inc., 554 F.2d 1075 (D.C. Cir.), cert. denied, 429 U.S. 820 (1976). The claimant's uncontradicted
credible testimony alone may constitute sufficient proof of physical injury. Hampton v. Bethlehem Steel
Corp., 24 BRBS 141 (1990); Anderson, 22 BRBS at 21; Miranda v. Excavation Constr., 13 BRBS 882
(1981); Golden v. Eller & Co., 8 BRBS 846 (1978), aff'd, 620 F.2d 71 (5th Cir. 1980).
This statutory presumption, however, does not dispense with the requirement that a claim of injury
must be made in the first instance, nor is it a substitute for the testimony necessary to establish a "prima
facie" case. The Supreme Court has held that a prima facie claim for compensation, to which the
statutory presumption refers, "must at least allege an injury that arose in the course of employment as well
as out of employment." U.S. Indus./Fed. Sheet Metal v. Director, OWCP, 455 U.S. 608 (1982), rev'g
Riley v. U.S. Indus./Fed. Sheet Metal, 627 F.2d 455 (D.C. Cir. 1980).
Moreover, the mere existence of a physical impairment is plainly insufficient to shift the burden of
proof to the employer. U.S. Indus., 455 U.S. at 600. The claimant's theory as to how the injury occurred
must go beyond "mere fancy." Champion v. S&M Traylor Bros., 690 F.2d 285, 295 (D.C. Cir. 1982).
The presumption, though, is applicable once the claimant establishes that he has sustained an injury, i.e.,
harm to his body. Preziosi v. Controlled Indus., 22 BRBS 468, 470 (1989); Brown v. Pacific Dry Dock,
22 BRBS 284, 285 (1989); Kelaita v. Triple A Mach. Shop, 13 BRBS 326 (1981), aff'd sub nom. Kelaita
v. Director, OWCP, 799 F.2d 1308 (9th Cir. 1986).
To establish a prima facie claim for compensation, a claimant need not affirmatively establish a
connection between work and harm. Rather, a claimant has the burden of establishing only:
(1) the claimant sustained physical harm or pain, and
(2) an accident occurred in the course of employment, or conditions
existed at work, which could have caused the harm or pain.
Kier v. Bethlehem Steel Corp., 16 BRBS 128 (1984); Kelaita, 13 BRBS at 330-31.
Once this prima facie case is established, a presumption is created under Section 20(a) that the
employee's injury or death arose out of employment. To rebut the presumption, the party opposing
entitlement must present specific and comprehensive medical evidence proving the absence of or severing
the connection between such harm and employment or working conditions. Parsons Corp. v. Director,
OWCP (Gunter), 619 F.2d 38, 12 BRBS 234 (9th Cir. 1980), aff'g 6 BRBS 607 (1977); Butler v.
District Parking Management Co., 363 F.2d 682 (D.C. Cir. 1966); Hampton, 24 BRBS at 144; Ranks
v. Bath Iron Works Corp., 22 BRBS 302, 305 (1989); James v. Pate Stevedoring Co., 22 BRBS 271
(1989); Sam v. Lofeland Bros. Co., 19 BRBS 228, 231 (1987); Kier, 16 BRBS at 129.
Once the claimant establishes a physical harm and working conditions which could have caused
or aggravated the harm or pain, the burden shifts to the employer to establish that the claimant's condition
was not caused or aggravated by the employment. Brown v. Pacific Dry Dock, 22 BRBS 284 (1989);
Rajotte v. General Dynamics Corp., 18 BRBS 85 (1986); Hughes v. Bethlehem Steel Corp., 17 BRBS
153 (1985).
If the presumption is rebutted, it no longer controls and the record as a whole must be evaluated
to determine the issue of causation. Del Vecchio v. Bowers, 296 U.S. 280 (1935); Volpe v. Northeast
Marine Terminals, 671 F.2d 697 (2d Cir. 1982). In such cases, the judge must weigh all of the evidence
relevant to the causation issue, resolving all doubts in the claimant's favor. Sprague v. Director, OWCP,
688 F.2d 862 (1st Cir. 1982); MacDonald v. Trailer Marine Transp. Corp., 18 BRBS 259 (1986).
In Sinclair v. United Food & Commercial Workers, 23 BRBS 148 (1989), the Board, in discussing
the parameters of the Section 20(a) presumption, stated that the presumption applies to the issue of whether
an injury is causally related to employment. Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466
(D.C. Cir.), cert. denied, 429 U.S. 820 (1976). Where an employment-related injury aggravates,
combines with, or accelerates a pre-existing condition, the entire resultant condition is compensable.
Rajotte v. General Dynamics Corp., 18 BRBS 85 (1986); Laplante v. General Dynamics Corp./Elec. Boat
Div., 15 BRBS 83 (1982). In order for Section 20(a) to apply, the claimant must establish a prima facie
case by proving that she suffered some harm or pain and that working conditions existed or an accident
occurred which could have caused the harm or pain. Kelaita v. Triple A Mach. Shop, 13 BRBS 326
(1981), decision and order after remand, 17 BRBS 10 (1984), aff'd sub nom. Kelaita v. Director, OWCP,
799 F.2d 1308 (9th Cir. 1986).
In Sinclair, 23 BRBS 148, the Board rejected the employer's argument that the presumption does
not apply unless the claimant establishes that her psychological condition is caused by a psychiatric reaction
to the physical symptoms she suffered while at work and held that the claimant need not affirmatively
prove causation. Once claimant establishes the elements of a prima facie case, i.e., the existence of
physical harm and working conditions which could have caused such harm, the presumption provides the
causal nexus.
The Section 20(a) presumption attaches only to claims actually made. U.S. Indus./Fed. Sheet
Metal v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982), rev'g 627 F.2d 455, 12 BRBS 237
(D.C. Cir. 1980). Thus, a prima facie claim must at least allege an injury that arises out of and in the
course of employment. In Sinclair, the claimant specifically alleged that her exposure to chemicals at work
aggravated her pre-existing psychiatric condition, resulting in a permanent psychiatric disability insofar as
claimant can no longer work around chemicals.
Moreover, the District of Columbia Circuit has indicated that the claimant's theory as to how
the injury occurred must go beyond "mere fancy." See Champion v. S&M Traylor Bros., 690 F.2d 285,
295 (D.C. Cir. 1982); Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968). Although the Board and
the courts have never required the claimant to introduce affirmative medical evidence establishing that the
working conditions in fact caused the harm, the claimant must show the existence of working conditions
which could conceivably cause the harm alleged.
In Sinclair, the Board also affirmed the judge's conclusion that the employer had failed to rebut the
presumption, holding that Section 20(a) places the burden on employer to go forward with substantial
countervailing evidence to rebut the presumption that the claimant's injury was caused by her employment.
23 BRBS at 154. See Swinton, 554 F.2d 1075, 4 BRBS 466.
The employer's evidence must sever the potential connection between the disability and the work
environment. Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 13 BRBS 182 (D.C. Cir.
1981), cert. denied, 456 U.S. 904 (1982), rev'g 11 BRBS 468 (1979); Webb v. Corson & Gruman, 14
BRBS 444 (1981); but cf. Maher Terminals v. Director, OWCP, 992 F.2d 1277, 27 BRBS 1 (CRT) (3d
Cir. 1993), cert. granted sub nom. Director, OWCP v. Greenwich Colleries, 512 U.S. 267 (1994).
Furthermore, it is well-settled that mere hypothetical probabilities are insufficient to rebut the
presumption, Smith v. Sealand Terminal, 14 BRBS 844 (1982), and that the presumption is not rebutted
merely by suggesting an alternate way that the claimant's injury might have occurred. Williams v. Chevron,
U.S.A., 12 BRBS 95 (1980).
2.2.2 Arising Out Of Employment
(See also Topic 20.1 Presumption infra.)
Section 2(2) of the LHWCA requires that the claimant's injury arise out of and in the course of
employment. 33 U.S.C. § 902(2). As indicated above, the statutory presumption applies to the issue of
whether an injury arises out of and in the course of employment. Travelers Ins. Co. v. Donovan, 221 F.2d
886 (D.C. Cir. 1955) (citing O'Leary v. Brown-Pacific Maxon, Inc., 340 U.S. 504 (1951)). This
presumption is grounded in the humanitarian purpose of the LHWCA, favoring awards in arguable cases.
Leyden v. Capitol Reclamation Corp., 2 BRBS 24 (1975), aff'd mem., 547 F.2d 706 (D.C. Cir. 1977).
The "arising out of employment" language of the LHWCA refers to the causal connection
between the claimant's injury and an employment-related risk. Independent Stevedore Co. v. O'Leary,
357 F.2d 812 (9th Cir. 1966). The Board has held that in order for an injury to be considered "arising
out of and in the course of employment," the injury must be shown to have occurred within the time and
space boundaries of the employment and in the course of an activity whose purpose is related to the
employment. Wilson v. Washington Metro. Area Transit Auth., 16 BRBS 73 (1984); Mulvaney v.
Bethlehem Steel Corp., 14 BRBS 593 (1981). See I A. Larson, Workmen's Compensation Law §§ 6.00,
14.00 (1992) (where a claimant's injury occurs on the work premises, the injury occurred within the space
boundaries of the claimant's employment).
Whether an injury arises out of one's employment refers to the cause or the source of the injury,
Mulvaney v. Bethlehem Steel Corp., 14 BRBS 593 (1981), and the necessary causative nexus is
established when there is "a causal relationship between the injury and the business in which the employer
employs the employee--a connection substantially contributory though it need not be the sole or proximate
cause." Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423-24 (1923).
In Twyman v. Colorado Security, 14 BRBS 829, 832-33 (1982), the Board reversed a finding
that the claimant's injuries did not arise out of her employment where the injuries occurred during a physical
altercation between a receptionist and a male employee, even though the altercation took place at the work
site but at least one half hour prior to the claimant's reporting time, and even though she "was not allowed
to be in the lobby prior to her reporting time."
The Board held that no evidence was introduced to contradict the claimant's testimony that she had
no personal or social contacts with the other employee outside of the employment. Hartford Accident &
Indem. Co. v. Cardillo, 112 F.2d 11, 13 (D.C. Cir.), cert. denied, 310 U.S. 649 (1940) (a finding that
an injury occurred in the course of employment strengthens the presumption that the injury also arose out
of the employment). See also Vendemia v. Cristaldi, 221 F.2d 103, 105 (D.C. Cir. 1955).
In Preskey v. Cargill, Inc., 12 BRBS 917 (1980), the claimant's accident occurred on the
employer's premises prior to the beginning of a shift, when he arrived early at the employer's premises
solely for his own personal reasons. The judge concluded that the claimant's injury had arisen "out of and
in the course of employment" because (1) an accident occurring on the employer's premises prior to the
beginning of a shift was effectively indistinguishable from accidents occurring on the premises during the
course of the workday, and (2) the claimant's early arrival was to the mutual benefit of the employer and
the claimant.
The Board reversed the award of benefits, holding that neither the time of the injury nor the activity
engaged in (i.e., picking up his paycheck at the union hiring hall) was within the course of his employment.
12 BRBS at 920. On appeal, however, the Ninth Circuit granted the claimant's petition for review and,
in a three line memorandum opinion, reversed the Board's decision and remanded the claim "to the Board
with instructions to reinstate the decision of the Administrative Law Judge." Preskey v. Cargill, Inc., 667
F.2d 1031, 14 BRBS 340 (9th Cir. 1981).
The D.C. Circuit had the opportunity to review a factual situation testing the limits of the "arising
out of" and "in the course of" language of Section 2(2) in Durrah v. Washington Metropolitan Transit
Authority, 760 F.2d 322, 17 BRBS 95 (CRT) (D.C. Cir. 1985).
In that case, the Board affirmed the denial of benefits because the claimant, a security guard at the
employer's Metrobus depot, had left his guardhouse, without obtaining a replacement, and had purchased
a soda from a vending machine that the employer had installed in the employees' lounge on the premises.
As the claimant was returning to his post, he slipped on a staircase and sustained a knee injury. Benefits
were denied because he did not obtain permission to leave his post and he did not obtain a substitute to
cover for him. Durrah v. Washington Metro. Area Transit Auth., 16 BRBS 333 (1984).
The D.C. Circuit reversed, however, because the claimant's "fall was securely within the time and
space boundaries of his employment." Durrah, 760 F.2d at 324, 17 BRBS at 97 (CRT). The fact that the
claimant did not report that he was leaving the guardhouse and obtain a substitute to cover his post for him
in his absence did not rebut the statutory presumption in his favor because there was no clear evidence that
the claimant was ever made aware that he was forbidden to leave his guardhouse.
Even assuming, arguendo, that he knowingly violated the employer's rules, such violation did not
place him in the path of new risks not inherent in his employment situation, as the lounge and staircase
were facilities the employer expected its employees to use and "the fateful staircase here came with the
territory," and, most important, "had [claimant] followed the employer's alleged instructions to the letter in
obtaining permission to take a mid-shift break at the employees' lounge soda machine, his injury would have
occurred in the very same place on [the employer's] premises, at the same time and in the same manner."
Durrah, 760 F.2d at 326, 17 BRBS at 97 and 101 (CRT) (emphasis added).
In Compton v. Avondale Industries, Inc., 33 BRBS 174 ( 1999), although the Board found that
the Section 20(a) presumption was applicable to the issue of course of employment, it upheld the ALJ's
finding that this claimant was injured because he left his work area to smoke marijuana and therefore
had taken himself out of the course of employment. The ALJ noted that he had been injured in what
was described as an "unauthorized/unsanctioned personal mission which did not benefit his employer." The
Board similarly stated that the claimant was acting for personal reasons, was violating the employer's policy
regarding the use of drugs and alcohol, was participating in an illegal activity had detoured from his job to
a remote area of the ship to smoke marijuana in a "personal frolic" which served no purpose related to his
employment and was sufficient to sever the employment nexus.
[ED. NOTE: See also Topic 1.11.4 Intoxication as the sole cause of injury.]
In Wilson v. Washington Metropolitan Area Transit Authority, 16 BRBS 73 (1984), the Board
held that the judge erroneously applied a "reasonable interval" rule to deny benefits to a claimant who
was injured while performing a work-related errand five hours before he was scheduled to arrive at work.
The time of the claimant's performance of the task was irrelevant since it was allowable to perform the task
at any time that a supervisor was present. The claimant thus sustained an injury which arose out of and in
the course of employment when he fell down a flight of stairs while looking for a supervisor to authorize the
purchase of a uniform, even though the injury occurred prior to the time that the claimant was due at the
garage where he was employed.
Accordingly, the judge, in these cases, must determine whether an activity's purpose was related
to the claimant's employment and whether the injury took place within the time boundaries of employment.
2.2.3 Injury (fact of)
Section 2(2) of the LHWCA defines an "injury" as an accidental injury or death arising out of and
in the course of employment, and such occupational disease or infection as arises naturally out of such
employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused
by the willful act of a third person directed against an employee because of his employment. 33 U.S.C.
§ 902(2). The D.C. Circuit in Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968), interpreting this
language, concluded that if something goes wrong within the human frame, there has been an injury
within the meaning of the LHWCA.
Similarly, Professor Larson, in discussing the concept of a personal injury, notes:
In common speech the word "injury" as applied to a personal injury to a
human being, includes whatever lesion or change in any part of the system
produces harm or pain or a lessened facility of the natural use of any
bodily activity or capability.
1B A. Larson, The Law of Workmen's Compensation § 42.11 (1992), citing Burns' Case, 218 Mass. 8,
105 N.E. 601, 603 (1914).
In order for a claimant to avail himself of the Section 20(a) presumption, he must show that he
sustained an injury, i.e., physical harm, and that an accident occurred or working conditions existed that
could have caused the harm. See Clophus v. Amoco Prod. Co., 21 BRBS 261, 265 (1988); Kelaita v.
Triple A Mach. Shop, 13 BRBS 326 (1981), decision and order after remand, 17 BRBS 10 (1984), aff'd,
799 F.2d 1308 (9th Cir. 1986). Once the claimant establishes these elements of a prima facie case, the
Section 20(a) presumption applies to link the harm with the claimant's employment. Lacy v. Four Corners
Pipe Line, 17 BRBS 139 (1985).
As defined above, the term "injury" means accidental injury or death arising out of and in the
course of employment, and such occupational disease or infection as arises naturally out of such
employment, or as naturally or unavoidably results from such accidental injury. See 33 U.S.C. § 902(2);
U.S. Indus./Fed. Sheet Metal v. Director, OWCP, 455 U.S. 608 (1982), rev'g Riley v. U.S. Indus./Fed.
Sheet Metal, 627 F.2d 455 (D.C. Cir. 1980).
A work-related aggravation of a pre-existing condition is an injury pursuant to Section 2(2) of
the LHWCA. Preziosi v. Controlled Indus., 22 BRBS 468 (1989); Janusziewicz v. Sun Shipbuilding &
Dry Dock Co., 22 BRBS 376 (1989) (Decision and Order on Remand); Johnson v. Ingalls Shipbuilding
Div., Litton Sys., 22 BRBS 160 (1989); Madrid v. Coast Marine Constr. Co., 22 BRBS 148 (1989);
Gardner v. Bath Iron Works Corp., 11 BRBS 556 (1979), aff'd sub nom. Gardner v. Director, OWCP,
640 F.2d 1385 (1st Cir. 1981). In fact, an aggravation to an initial asbestos-related injury by further
exposure to pulmonary irritants can be a new injury. Bath Iron works Corp. v. Director, U.S. Dept. of
Labor, (Jones),193 F.3d 27 (1st Cir. 1999)(Initial asbestos-related injury was aggravated by further
exposure to pulmonary irritants and was subsequently found to be a "new" injury resulting in an increase
in benefits payable by a new carrier and based upon the average weekly wage at the time of the new
injury).
Moreover, the employment-related injury need not be the sole cause, or primary factor, in a
disability for compensation purposes. Rather, if an employment-related injury contributes to, combines
with, or aggravates a pre-existing disease or underlying condition, the entire resultant disability is
compensable. Strachan Shipping v. Nash, 782 F.2d 513 (5th Cir. 1986); Independent Stevedore Co.
v. O'Leary, 357 F.2d 812 (9th Cir. 1966); Kooley v. Marine Indus. N.W., 22 BRBS 142 (1989);
Mijangos v. Avondale Shipyards, 19 BRBS 15 (1986); Rajotte v. General Dynamics Corp., 18 BRBS 85
(1986).
Also, when the claimant sustains an injury at work which is followed by the occurrence of a
subsequent injury or aggravation outside work, employer is liable for the entire disability if that
subsequent injury is the natural and unavoidable consequence or result of the initial work injury. Bludworth
Shipyard v. Lira, 700 F.2d 1046 (5th Cir. 1983); Mijangos, 19 BRBS 15; Hicks v. Pacific Marine &
Supply Co., 14 BRBS 549 (1981). The term "injury" includes the aggravation of a pre-existing, non-work-related condition or the combination of work- and non-work-related conditions. Lopez v. Southern
Stevedores, 23 BRBS 295 (1990); Care v. Washington Metro. Area Transit Auth., 21 BRBS 248 (1988).
An "accidental injury" is "an unlooked-for mishap or untoward event which was not expected
or designed;" "something out of the usual course of events, and which happens suddenly and unexpectedly,
and without any design on the part of the person injured." Gardner v. Bath Iron Works Corp., 11 BRBS
556, 560 n.1 (1979).
It may be either an unexpected "cause" or "result." Therefore, an "accidental injury" may be said
to have occurred, even though the injured employee is engaged in his usual and ordinary employment
activity, if something unexpectedly goes wrong with the human frame, as happened in this case (Gardner),
or where the worker suffered a heart attack while performing normal job duties. See Glens Falls Indemnity
Co. v. Henderson, 212 F.2d 617 (5th Cir. 1954) (deceased who suffered heart attack while performing
his normal job duty of loading grain undoubtedly suffered an accidental injury within the meaning of the
LHWCA).
2.2.4 Physical Harm as an Injury
It is now well-settled that the claimant need not show that he has a specific illness or disease in
order to establish that he has suffered an injury under the LHWCA, but need only establish some physical
harm, i.e., that something has gone wrong with the human frame. Crawford v. Director, OWCP, 932 F.2d
152, 24 BRBS 123 (CRT) (2d Cir. 1991); Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968) (en banc);
Southern Stevedoring Corp. v. Henderson, 175 F.2d 863 (5th Cir. 1949); Romeike v. Kaiser Shipyards,
22 BRBS 57, 59 (1989) (the existence of pleural plaques, resulting from exposure to asbestos, aided by
the statutory presumption, established, as a matter of law, a work-related injury as the employer failed to
rebut the presumption); Johnson v. Brady-Hamilton Stevedore Co., 11 BRBS 427 (1979); Brown v.
Washington Metro. Area Transit Auth., 9 BRBS 233 (1978); Shoener v. Sun Shipbuilding & Dry Dock
Co., 8 BRBS 630 (1978); Cornell v. Beltway Carpet Serv., 8 BRBS 126 (1978); Adkins v. Safeway
Stores, 6 BRBS 513 (1977).
A psychological impairment can be an injury under the LHWCA if work-related. Director,
OWCP v. Potomac Elec. Power Co. (Brannon), 607 F.2d 1378, 10 BRBS 1048 (D.C. Cir. 1979) (work
injury results in psychological problems, leading to suicide); Butler v. District Parking Management Co.,
363 F.2d 682 (D.C. Cir. 1966) (employment caused mental breakdown); American Nat'l Red Cross
v. Hagen, 327 F.2d 559 (7th Cir. 1964) (work environment precipitates acute schizophrenia reaction);
Urban Land Inst. v. Garrell, 346 F. Supp. 699 (D.D.C. 1972) (nervous reaction precipitated by stressful
pressures of job; no one physical or external cause of psychological injury necessary).
See also Turner v. Chesapeake & Potomac Tel. Co., 16 BRBS 255 (1984) (benefits allowed for
depression due to work-related disability); Whittington v. National Bank, 12 BRBS 439 (1980) (remand
to determine whether stress and pressure at work aggravated psychiatric condition); Moss v. Norfolk
Shipbuilding & Dry Dock Corp., 10 BRBS 428 (1979) (although claimant's anxiety condition is not an
occupational disease, it is compensable as an accidental injury). Moreover, headaches resulting from a
work-related incident may be compensable under the LHWCA. Spence v. ARA Food Serv., 13 BRBS
635 (1980).
In Tezeno v. Consolidated Aluminum Corp., 13 BRBS 778 (1981), the Board affirmed an award
of permanent total disability as a result of the employee's "functional overlay" and "related negative
rehabilitation potential," holding that "a psychological impairment is compensable where a work-related
accident has psychological repercussions." Tezeno, 13 BRBS at 782 (quoting Tampa Ship Repair & Dry
Dock v. Director, OWCP, 535 F.2d 936 (5th Cir. 1976)); Moss, 10 BRBS 428.
Although a psychological impairment can be compensable, Conatser v. Pittsburgh Testing
Laboratory, 9 BRBS 541 (1978), in order for it to be so, it must be disabling in the economic sense.
Winston v. Ingalls Shipbuilding, Inc., 16 BRBS 168, 172 (1984); Simerly v. Sea-Land Serv., 9 BRBS 483
(1978). See also Reilly v. Washington Metro. Area Transit Auth., 20 BRBS 8 (1987) (benefits were
awarded for a psychiatric injury as a result of harassment by his supervisor). A psychological injury
resulting from a legitimate personnel action, such as a reduction-in-force, is not compensable under the
LHWCA, however, because to hold otherwise would unfairly hinder an employer in making legitimate
personnel decisions and in conducting its business. Marino v. Navy Exch., 20 BRBS 166, 168 (1988).
In order to invoke the presumption, the claimant must prove not only that he has a psychological
impairment, but that an accident occurred or working conditions existed which could have caused the
impairment. Adams v. General Dynamics Corp., 17 BRBS 258 (1985); Kelaita v. Triple A Mach. Shop,
13 BRBS 326 (1981), decision and order after remand, 17 BRBS 10 (1984), aff'd sub nom. Kelaita v.
Director, OWCP, 799 F.2d 1308 (9th Cir. 1986). Compare Sanders v. Alabama Dry Dock &
Shipbuilding Co., 22 BRBS 340 (1989) (benefits were denied where claimant's testimony regarding his
working conditions was nonspecific, uncorroborated, and contradicted by his fellow workers, and the
medical testimony indicated that claimant's problems [i.e., severe headaches, lethargy, slurred speech and
staggering] would have existed regardless of whether he was employed by the employer).
In Sinclair v. United Food & Commercial Workers, 23 BRBS 148 (1989), the Board, in discussing
the parameters of the Section 20(a) presumption, stated that the presumption applies to the issue of whether
an injury is causally related to employment and the Board rejected the employer's argument that the
presumption does not apply unless the claimant establishes that her psychological condition is caused by
a psychiatric reaction to the physical symptoms she suffered while at work, and held that the claimant need
not affirmatively prove causation. Once the claimant establishes the elements of a prima facie case,
i.e., the existence of physical harm and working conditions which could have caused such harm, the
presumption provides the causal nexus.
The Section 20(a) presumption attaches only to claims actually made. U.S. Indus./Fed. Sheet
Metal v. Director, OWCP, 455 U.S. 608, 14 BRBS 631 (1982), rev'g 627 F.2d 455, 12 BRBS 237
(D.C. Cir. 1980). Thus, a prima facie claim must at least allege an injury that arises out of and in the
course of employment. In Sinclair, the claimant specifically alleged that her exposure to chemicals at work
aggravated her pre-existing psychiatric condition, resulting in a permanent psychiatric disability insofar as
claimant can no longer work around chemicals.
Moreover, the District of Columbia Circuit has indicated that the claimant's theory as to how
the injury occurred must go beyond "mere fancy." See Champion v. S&M Traylor Bros., 690 F.2d 285,
295 (D.C. Cir. 1982); Wheatley v. Adler, 407 F.2d 307, 313 (D.C. Cir. 1968). Although the Board and
the courts have never required a claimant to introduce affirmative medical evidence establishing that the
working conditions in fact caused the harm, the claimant must at least show the existence of working
conditions which could conceivably cause the harm alleged.
In Sinclair, 23 BRBS at 154, the Board also affirmed the judge's conclusion that the employer had
failed to rebut the presumption, holding that Section 20(a) places the burden on employer to go forward
with substantial countervailing evidence to rebut the presumption that claimant's injury was caused by her
employment. See Swinton v. J. Frank Kelly, Inc., 554 F.2d 1075, 4 BRBS 466 (D.C. Cir. 1976); but
cf. Maher Terminals v. Director, OWCP, 992 F.2d 1277, 27 BRBS 1 (CRT) (3d Cir. 1993), cert.
granted sub nom. Director, OWCP v. Greenwich Colleries,512 U.S. 267, 114 S. Ct. 751 (1994).
The employer's evidence must sever the potential connection between the disability and the work
environment. Hensley v. Washington Metro. Area Transit Auth., 655 F.2d 264, 13 BRBS 182 (D.C. Cir.
1981), rev'g 11 BRBS 468 (1979), cert. denied, 456 U.S. 904 (1982); Webb v. Corson & Gruman, 14
BRBS 444 (1981). Furthermore, it is well-settled that mere hypothetical probabilities are insufficient to
rebut the presumption, Smith v. Sealand Terminal, 14 BRBS 844 (1982), and that the presumption is not
rebutted merely by suggesting an alternate way that the claimant's injury might have occurred. Williams v.
Chevron U.S.A., 12 BRBS 95 (1980).
The Board has consistently held that credible complaints of subjective symptoms and pain can
be sufficient to establish the element of physical harm necessary for a prima facie case for Section 20(a)
invocation. See Sylvester v. Bethlehem Steel Corp., 14 BRBS 234, 236 (1981), aff'd sub nom. Sylvester
v. Director, OWCP, 681 F.2d 359, 14 BRBS 984 (CRT) (5th Cir. 1982). Moreover, the judge may
properly rely on the claimant's statements to establish that he experienced a work-related harm, and where
it is undisputed that a work accident occurred which could have caused the harm, the Section 20(a)
presumption is invoked in the case.
Furthermore, the employer's general contention that the clear weight of the evidence establishes
rebuttal of the presumption is not sufficient to rebut the presumption. See generally Miffleton v. Briggs Ice
Cream Co., 12 BRBS 445 (1980).
It is now well-settled that an injury cannot be found absent some work-related accident, incident,
exposure, event, or episode and while a claimant's injury need not be caused by an external force,
something still must go wrong within the human frame. Shoener v. Sun Shipbuilding & Dry Dock Co., 8
BRBS 630 (1978).
In Luna v. General Dynamics Corp., 12 BRBS 511 (1980), the Board affirmed the denial of
benefits to a claimant who could not work when his medically prescribed safety glasses broke during the
course of his employment. Since nothing "went wrong within the human frame" as a result of the incident
in which his glasses were broken, he did not suffer an injury within the meaning of the Act.
In McGuigan v. Washington Metropolitan Area Transit Authority, 10 BRBS 261, 263 (1979), the
Board stated this well-settled proposition as follows: "if something unexpectedly goes wrong within the
human frame, even if this occurs in the course of usual and ordinary work, claimant has sustained an
accidental injury under the Act." See Williams v. Chevron U.S.A., 12 BRBS at 97 (benefits were awarded
to an employee who felt a "pop" in his back, later diagnosed as a ruptured disc, while carrying a fifty-pound
tool box up a flight of stairs on an offshore oil rig).
2.2.5 Multiple Injuries
In Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991), the Board was faced with the
issue as to whether the claimant's disability resulted from a 1985 work accident or a 1987 non-work-related incident while bending over doing yard work. The resolution of this issue was crucial as it affected,
inter alia, the average weekly wage and the employer's responsibility.
If the current disability is the natural and unavoidable consequence of a work-related injury, then
any current disability is related to the first injury and benefits are paid on the basis of the average weekly
wage as of the time of the first injury. See, e.g., Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454
(9th Cir. 1954) (second leg injury at home due to leg instability resulting from the first work-related leg
injury); Pakech v. Atlantic & Gulf Stevedores, 12 BRBS 47 (1980) (where claimant's back gave way both
at home while rising from a chair and on the job with another employer one year after a work injury, the
condition was the result of a natural progression of the work injury).
Occasionally, the Board will frame the employer's burden, in this context, in terms of having to rebut
the presumption with substantial countervailing evidence. See Merrill, 25 BRBS at 144, wherein the Board
held that:
Section 20(a) of the Act, 33 U.S.C. § 920(a), provides claimant
with a presumption that his disabling condition is causally related to his
employment if he shows that he suffered a harm and that employment
conditions existed or a work accident occurred which could have caused,
aggravated, or accelerated the condition. See, e.g., Gencarelle v. General
Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173, 23 BRBS
13 (CRT) (2d Cir. 1989). Once claimant has invoked the presumption,
the burden shifts to employer to rebut the presumption with substantial
countervailing evidence. See James v. Pate Stevedoring Co., 22 BRBS
271 (1989). If the presumption is rebutted, the administrative law judge
must weigh all the evidence and render a decision supported by substantial
evidence. See Del Vecchio v. Bowers, 296 U.S. 280 (1935).
If there has been a subsequent non-work-related event, employer
can establish rebuttal of the Section 20(a) presumption by producing
substantial evidence that claimant's condition was not caused by the work-related event. See James, supra. Employer is liable for the entire
disability if the second injury is the natural or unavoidable result of the first
injury. Where the second injury is the result of an intervening cause,
employer is relieved of liability for that portion of disability attributable to
the second injury. See, e.g., Bailey v. Bethlehem Steel Corp., 20 BRBS
14 (1987).
The medical evidence submitted by the parties should enable the judge to determine whether any
disability is the natural and unavoidable result of a prior injury or is due to acceleration, aggravation or
exacerbation of a pre-existing condition, in which case the employee has sustained a new and discrete
injury.
2.2.6 Aggravation/Combination
If a claimant's employment aggravates a non-work-related, underlying disease or condition so as
to produce incapacitating symptoms, the resulting disability is compensable. See Gardner v. Bath Iron
Works Corp., 11 BRBS 556 (1979), aff'd sub nom. Gardner v. Director, OWCP, 640 F.2d 1385, 13
BRBS 101 (1st Cir. 1981).
When a claimant sustains a second work-related injury, that injury need not be the primary factor
in the resultant disability for compensation purposes. See generally Independent Stevedore Co. v.
O'Leary, 357 F.2d 812 (9th Cir. 1966). If a work-related injury aggravates, exacerbates, accelerates,
contributes to, or combines with a previous infirmity, disease, or underlying condition, the entire resultant
condition is compensable. Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968).
Thus, if the disability results from the natural progression of an injury, and would have occurred
notwithstanding the presence of a second injury, liability for the disability must be assumed by the employer
or carrier for which the claimant was working when he was first injured; however, if the second injury
aggravates the claimant's prior injury, thus further disabling claimant, the second injury is the compensable
injury, and liability therefor must be assumed by the employer or carrier for whom claimant was working
when "reinjured." Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986)
(en banc), aff'g 15 BRBS 386 (1983); Abbott v. Dillingham Marine & Mfg. Co., 14 BRBS 453 (1981),
aff'd mem. sub nom. Willamette Iron & Steel Co. v. OWCP, 698 F.2d 1235 (9th Cir. 1982). However,
it is possible for an aggravation to be considered a new injury. Bath Iron Works Corp. v. Director, U.S.
Dept. of Labor, (Jones), 193 F.3d 27 (1st Cir. 1999)(Initial asbestos-related injury was aggravated by
further exposure to pulmonary irritants and was subsequently found to be a "new" injury resulting in an
increase in benefits payable by a new carrier and based upon the average weekly wage at the time of the
new injury).
[ED. NOTE: Under certain circumstances, when there is a second injury, the employer/carrier may
be entitled to relief for the payment of compensation benefits. See Topic 8.7 "Special Fund Relief,"
in this regard. When the employer/carrier is entitled to this relief, there must have been a timely
request filed for this relief. See Topic 2.2.17 "Occupational Diseases and Section 8(f)." ]
In Johnson v. Ingalls Shipbuilding, Inc., 22 BRBS 160, 162 (1989), the employee contended that
the judge erred by finding that the percentage of compensable permanent impairment suffered by the
claimant was 20 percent, rather than 50 percent. The judge based his finding on the opinion of one doctor,
who diagnosed the claimant as 50 percent disabled due to chronic obstructive pulmonary disease combined
with asbestosis. The doctor assigned 30 percent of the claimant's disability to the claimant's chronic
obstructive pulmonary disease, which was unrelated to his employment, and 20 percent to work-related
asbestosis.
The judge found, based on this opinion, that the claimant's degree of compensable permanent
impairment was 20 percent, representing the percentage of the claimant's disability attributable to asbestosis.
In Johnson, the Board concluded:
Under the "aggravation rule," where an employment-related injury
combines with, or contributes to, a pre-existing impairment or underlying
condition, the entire resulting disability is compensable and the relative
contributions of the work-related injury and the pre-existing condition are
not weighed to determine claimant's entitlement. See, e.g., Strachan
Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir.
1986). In the instant case, Dr. Childs, whose opinion was relied on by the
judge in his discussion of the extent of claimant's compensable impairment,
determined that both chronic obstructive pulmonary disease and asbestosis
contribute to claimant's overall lung impairment. The judge did not discredit
either this determination or Dr. Childs' assessment that claimant's breathing
difficulties, taken together, result in a 50 percent permanent impairment.
Under the aggravation rule, therefore, the employer would be required to
compensate claimant for a 50 percent impairment, as claimant contends.
Johnson, 22 BRBS at 162 (emphasis added). See also, Kelaita v. Director, OWCP, 799 F.2d 1308 (9th
Cir. 1986); Delaware River Stevedores, Inc., v. Director, OWCP, ___ F.3d ___ (No 01-1709) (3rd Cir.
Jan. 30, 2002). Accordingly, the Board saw no reason to refrain from applying the aggravation rule, and
modified the judge's decision to reflect that the claimant was entitled to have his award based on the fifty
(50) percent rating expressed by the physician. Johnson, 22 BRBS at 162.
The Board has held that lay evidence is not sufficient to establish an aggravation. Zea v. West State,
Inc., (BRB No. 97-931)(Apr. 9, 1998)(Unpublished).
2.2.7 Natural Progression
The crucial question is whether the employee's condition is due to the aggravation, acceleration
or exacerbation of a pre-existing condition, in which case a new injury has been sustained, or whether the
condition is the natural and unavoidable consequence of a previous work-related injury, in which case the
employer on the risk as of that injury is responsible for any benefits awarded.
As detailed above, Section 20(a) of the LHWCA provides claimant with a presumption that the
disabling condition is causally related to employment, if it is shown that the claimant suffered a harm and that
employment conditions existed or a work accident occurred which could have caused, aggravated, or
accelerated the condition. See, e.g., Gencarelle, 22 BRBS 170.
Once the claimant has invoked the presumption, the burden shifts to the employer to rebut the
presumption with specific and comprehensive medical evidence severing the connection between such harm
and the claimant's maritime employment. See James v. Pate Stevedoring Co., 22 BRBS 271 (1989). If
the presumption is rebutted, the judge must weigh all the evidence and render a decision supported by
substantial evidence. See Del Vecchio v. Bowers, 296 U.S. 280 (1935).
When a claimant sustains a second work-related injury, that injury need not be the primary factor
in the resultant disability for compensation purposes. See generally Independent Stevedore Co. v. O'Leary,
357 F.2d 812 (9th Cir. 1966). If a work-related injury aggravates, exacerbates, accelerates, contributes
to, or combines with a previous infirmity, disease, or underlying condition, the entire resultant condition is
compensable. Wheatley v. Adler, 407 F.2d 307 (D.C. Cir. 1968).
If the disability results, however, from the natural progression of an injury, and would have occurred
notwithstanding the presence of a second injury, liability for the disability must be assumed by the employer
or carrier for when the claimant was working when he was first injured. If the second injury aggravates a
claimant's prior injury, however, thus further disabling the claimant, the second injury is the compensable
injury, and liability therefor must be assumed by the employer or carrier for whom the claimant was working
when "reinjured." Strachan Shipping Co. v. Nash, 782 F.2d 513, 18 BRBS 45 (CRT) (5th Cir. 1986) (en
banc), aff'g 15 BRBS 386 (1983); Abbott v. Dillingham Marine & Mfg. Co., 14 BRBS 453 (1981), aff'd
mem. sub nom. Willamette Iron & Steel Co. v. OWCP, 698 F.2d 1235 (9th Cir. 1982).
In Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991), the employee sustained a work-related low back injury on July 30, 1985. He was paid benefits while he was unable to work. He returned
to work for approximately fourteen months and was then laid off on February 26, 1987. Six weeks later,
while at home, he experienced back pain while bending over doing yard work. The employer paid
additional benefits for five weeks but then terminated benefits, contending that the employee's April 10, 1987
accident was an intervening, non-compensable injury.
In Merrill, the Board held that it was undisputed that the claimant suffered a back injury while
working in 1985 and that he suffered ongoing back problems; thus, the Section 20(a) presumption is
invoked. See generally Gencarelle v. General Dynamics Corp., 22 BRBS 170 (1989), aff'd, 892 F.2d 173,
23 BRBS 13 (CRT) (2d Cir. 1989). The Board affirmed the judge's conclusion that the claimant did not
sustain a new injury in 1987 and that his lumbar condition (i.e., recurring chronic pain), as the natural and
unavoidable consequence of his 1985 injury, is causally related to his employment and, thus, is compensable.
Merrill, 25 BRBS at 144-45. See also, Kelaita v. Director, OWCP, 799 F.2d 1308 (9th Cir. 1986);
Delaware River Stevedores, Inc., v. Director, OWCP, ___ F.3d ___ (No 01-1709) (3rd Cir. Jan. 30,
2002).
Where the employee's condition is the natural progression of a work-related injury, any
compensation awarded is based on the average weekly wage as of the work-related injury. Merrill, 25
BRBS at 150.
If there has been a subsequent non-work-related event, employer can establish rebuttal of the
Section 20(a) presumption by producing substantial evidence that the claimant's condition was not caused
by the work-related event. See James, 22 BRBS 271. The employer is liable for the entire disability if the
second injury is the natural or unavoidable result of the first injury. Where the second injury is the result of
an intervening cause, however, the employer is relieved of liability for that portion of disability attributable
to the second injury. See, e.g., Bailey v. Bethlehem Steel Corp., 20 BRBS 14 (1987). (See Intervening
Cause, Topic 2.2.8., infra).
Moreover, an employment injury need not be the sole cause of a disability for compensation liability.
See Independent Stevedore Co. v. O'Leary, 357 F.2d 812 (9th Cir. 1966); Haynes v. Washington Metro.
Area Transit Auth., 7 BRBS 891 (1978). Thus, if the disability resulted from the natural progression of an
earlier injury and would have occurred notwithstanding the presence of a second incident, then the earlier
injury is compensable and the carrier on the risk as of that date is responsible for the benefits due the
claimant. Madrid v. Coast Marine Constr. Co., 22 BRBS 148, 153 (1989); Wheeler v. Interocean
Stevedoring, 21 BRBS 33 (1988); Crawford v. Equitable Shipyards, 11 BRBS 646, 649-50 (1979), aff'd
sub nom. Employers Nat'l Ins. Co. v. Equitable Shipyards, 640 F.2d 383 (5th Cir. 1981).
When an employee sustains an injury at work which is followed by the occurrence of a subsequent
injury or aggravation outside work, the employer is liable for the entire disability and for medical expenses
due to both injuries if the subsequent injury is the natural or unavoidable result of the original work injury.
Atlantic Marine v. Bruce, 661 F.2d 898, 14 BRBS 63 (5th Cir. 1981); Cyr v. Crescent Wharf &
Warehouse Co., 211 F.2d 454 (9th Cir. 1954); Mijangos v. Avondale Shipyards, 19 BRBS 15 (1986).
If, however, the subsequent injury or aggravation is not a natural or unavoidable result of the work
injury, but is the result of an intervening cause such as the employee's intentional or negligent conduct, the
employer is relieved of liability attributable to the subsequent injury. Bludworth Shipyard v. Lira, 700 F.2d
1046, 15 BRBS 120 (CRT) (5th Cir. 1983); Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454
(9th Cir. 1954); Grumbley v. Eastern Associated Terminals Co., 9 BRBS 650 (1979).
2.2.8 Intervening Event/Cause Vis-A-Vis Natural Progression
The crucial question is whether any disability is causally related to, and is the natural and
unavoidable consequence of, the claimant's work-related accident or whether the subsequent incident
constituted an independent and intervening event attributable to the claimant's own intentional conduct, thus
breaking the chain of causality between the work-related injury and any disability the employee may be
experiencing.
The basic rule of law in "direct and natural consequences" cases is stated in 1 A. Larson
Workmen's Compensation Law § 13.00 at 3-502 (1992):
When the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury
likewise arises out of the employment, unless it is the result of an
independent intervening cause attributable to claimant's own intentional
conduct.
Professor Larson writes at Section 13.11:
The basic rule is that a subsequent injury, whether an aggravation of the
original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury.
The simplest application of this principle is the rule that all the medical
consequences and sequella that flow from the primary injury are
compensable ... The issue in all of these cases is exclusively the medical
issue of causal connection between the primary injury and the subsequent
medical complications.
Id. at 3-517.
This rule is succinctly stated in Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 457 (9th
Cir. 1954) as follows: "If an employee who is suffering from a compensable injury sustains an additional
injury as a natural result of the primary injury, the two may be said to fuse into one compensable injury."
See also Bludworth Shipyard v. Lira, 700 F.2d 1046 (5th Cir. 1983); Mississippi Coast Marine v.
Bosarge, 637 F.2d 994, modified and reh'g denied, 657 F.2d 665 (5th Cir. 1981); Hicks v. Pacific Marine
& Supply Co., 14 BRBS 549 (1981).
The area of inquiry is whether the factual pattern presents the judge with a situation in which the initial
medical condition itself progresses into complications more serious than the original injury, thus rendering
the added complications compensable. See Andras v. Donovan, 414 F.2d 241 (5th Cir. 1969). Once the
work-connected character of any injury, such as a back injury, has been established, the subsequent
progression of that condition remains compensable, as long as the worsening is not shown to have been
produced by an independent or non-industrial cause. Hayward v. Parsons Hospital, 32 A.D.2d 983, 301
N.Y.S.2d 659 (N.Y. 1969).
Moreover, the subsequent disability is compensable, even if the triggering episode is some non-employment exertion like raising a window or hanging up a suit, so long as it is clear that the real operative
factor is the progression of the compensable injury, associated with an exertion that in itself would not be
unreasonable in the circumstances.
A different question is presented, however, when the triggering activity is itself rash in the light
of the claimant's knowledge of his physical condition. The issue in all such cases is exclusively the medical
issue of causal connection between the primary injury and the subsequent medical complications, and denials
of compensation in this category have invariably been the result of a conclusion that the requisite medical
causal connection did not exist. Matherly v. State Accident Ins. Fund, 28 Or. App. 691, 560 P.2d 682
(Or. Ct. App. 1977).
The consequences are compensable when a weakened body member contributed to a later fall or
other injury. See Leonard v. Arnold, 218 Va. 210, 237 S.E.2d 97 (Va. 1977). A weakened member was
held to have caused the subsequent compensable injury where there was no evidence of intentional or rash
action on the part of the claimant. J.V. Vozzolo, Inc. v. Britton, 377 F.2d 144 (D.C. Cir. 1967); Carabetta
v. Industrial Comm'n, 12 Ariz. App. 239, 469 P.2d 473 (Ariz. Ct. App. 1970). The subsequent
consequences are not compensable, however, when the claimant's conduct or intentional act broke the chain
of causation. Sullivan v. B & A Constr., 122 N.Y.S.2d 571, 120 N.E.2d 694 (N.Y. 1954). If a claimant,
knowing of certain weaknesses, intentionally undertakes activities likely to produce harmful results, the chain
of causation is broken by his own actions. Johnnie's Produce Co. v. Benedict & Jordan, 120 So.2d 12
(Fla. 1960).
Thus, a subsequent incident on the way to the doctor's office for treatment of the original work-related accident is compensable. Laines v. WCAB, 40 Cal. Comp. Cases 365, 48 Cal. App.3d 872 (Cal.
Ct. App. 1975); Fitzgibbons v. Clarke, 205 Minn. 235, 285 N.W. 528 (Minn. 1939). The visit to the
doctor was based on the statutory obligation of the employer to furnish, and of the employee to submit to,
a medical examination. See Kearney v. Shattuck, 12 A.D.2d 678, 207 N.Y.S.2d 722 (N.Y. 1960).
The Board, however, reversed an award of benefits to a claimant who had sustained an injury to
his left leg, when he fell from the roof of his house while attempting to repair his television antenna after his
injured knee collapsed under him. Eighteen months earlier, claimant had injured his right knee in a work-related accident and received benefits for his temporary total disability and a rating of fifteen percent
permanent partial disability of the leg. However, the Board reversed the award for additional compensation
resulting from the second injury. Grumbley v. Eastern Associated Terminals Co., 9 BRBS 650 (1979). The
Board held, "[U]nder Section 2(2) of the Act, the second injury to be compensable must be related to the
original injury. Therefore, if there is an intervening cause or event between the two injuries, the second injury
is not compensable. Thus, the administrative law judge must focus on whether the second injury resulted
'naturally or unavoidably.' Therefore, claimant's action must show a degree of due care in regard to his
injury." Id. at 652.
Furthermore, the Board held, "[claimant obviously did not take any such precautions, nor did the
record show that any emergency situation existed that would relieve claimant from such allegation," i.e.,
whether that person has taken reasonable precautions to guard himself against re-injury. Id.; see also Wright
v. Connolly-Pacific Co., 25 BRBS 161, 165-67 (1991) (where the employee had recovered from his work-related injury and had returned to work and then, within a two-year period, had been involved in two
automobile accidents, including one altercation with a police officer, thereby worsening his cervical pain,
benefits were denied due to the intervening causes).
In Willis v. Titan Contractors, 20 BRBS 11 (1987), it was undisputed that the claimant's injury
occurred during work hours while he was boarding the employer's crew boat from a barge moored in the
ship channel, thereby occurring within the time and space boundaries of his employment. The critical issue,
however, was whether the claimant's injury occurred in the course of an activity whose purpose was
related to his employment.
In Willis, there was no indication that the judge considered the Section 20(a) presumption in
determining whether the claimant's injury occurred in the course of his employment. The judge, however,
did credit the testimony that the claimant was neither authorized nor employed to use the crew boat for
work, had no work duties associated with the crew boat or the barge, and was employed solely to operate
heavy equipment on the mainland. This testimony, however, was found to be insufficient to sever the
connection between the claimant's injury and his employment. See Mulvaney v. Bethlehem Steel Corp., 14
BRBS 593 (1981).
The testimony indicates only that the claimant was not authorized by the employer to use the crew
boat, but does not establish that the claimant was engaged in personal business at the time of his injury. The
fact that an activity is not authorized is not sufficient alone to remove an injury from the course of
employment. See Durrah v. Washington Metro. Area Transit Auth., 760 F.2d 322, 17 BRBS 95 (CRT)
(D.C. Cir. 1985), rev'g 16 BRBS 333 (1984); Mulvaney, 14 BRBS 593. Pursuant to Section 20(a), the
employer bears the burden of proving that the activity was unrelated to the employment. Since there was
no evidence of record directly controverting the presumption, the Board reversed the judge's finding that
the claimant's injury did not occur in the course of his employment. Willis, 20 BRBS 11.
Generally, an employee's activities on the business premises are covered for compensation purposes.
Durrah, 760 F.2d 322, 17 BRBS 95 (CRT). The claimant's participation, however, in an unsanctioned
activity at the time of her injury (i.e., she fell from the back of a friend's truck parked in the employer's
parking lot as the group was planning to go to dinner to celebrate claimant's transfer to another store) may
sever the link between the activity and her employment. Alston v. Safeway Stores, 19 BRBS 86, 87
(1986).
Moreover, benefits were properly denied in Oliver v. Murry's Steaks, 21 BRBS 348 (1988), where
the claimant was on his usual route home from work when the accident occurred and where he had severed
the employment nexus by embarking on a personal mission when he stopped at a bar to have several drinks
prior to his accident. See also Oliver v. Murry's Steaks, 17 BRBS 105 (1985) (wherein the Board
remanded the claim to the ALJ for a determination as to whether claimant had embarked on a personal
mission and had been injured solely as a result of his intoxication).
2.2.9 Course of Employment
"Course of employment" refers to the time and place of the injury, as well as the activity in which
the claimant was engaged when the injury occurred. Mulvaney v. Bethlehem Steel Corp., 14 BRBS 593,
595 (1981) (as the claimant was injured on the work premises during working hours, the injury occurred
within the time and space boundaries of the employment--the focal issue is whether the injury was within the
course of an activity whose purpose is related to claimant's employment).
In Boyd v. Ceres Terminals, 30 BRBS 218 (1997), the Board held that the employee's action
would be considered to be "within the scope of employment" if it was of some benefit to the employer. The
claimant was a forklift driver who took time following his break to try and help a fellow employee start his
car. During the process the claimant received second and third degree burns over 15 percent of his body
when the gas used to prime the carburetor exploded. The Board upheld the judge's finding that the activity
was with in the course and scope of the claimant's employment as he was benefitting the employer though
maintaining employee relations. 30 BRBS 218, 219 (1997). This is a very liberal reading of the degree of
benefit that the employer need receive for the actions of the employee to be covered.
The Board declined the invitation to apply the "recreational and social activities" test found in Section
22.00 of Larson's treatise, preferring to apply the test in Section 27.00 relating to acts outside the
employee's regular duties. The Board held:
"that unless those acts are positively prohibited, whether or not they are the employee's
own assigned work, they are considered within the course of employment. However, '[i]f
the aid takes the form of merely helping the co-employee with some matter entirely personal
to the co-employee, it is outside the course of employment, unless the deviation involved
is insubstantial."
Boyd v. Ceres Terminals, 30 BRBS 218, 220 (1997), citing 1A Larson, The Law of Workmen's
Compensation, §27.00 (1996). Applying this test as a supplement to the finding that the actions had a
indirect benefit to the employer, the Board found that the injury was still within the course of employment.
Though the act of pouring the gasoline may have been personal, the deviation from his employment would
have been minimal but for the explosion. The car was directly between the break area and the forklift and
the process should not have taken more than a few seconds, thus the Board found that the deviation was
extremely minimal.
In Shivers v. Navy Exchange, 144 F.3d 322 (4th Cir. 1998), a parking lot maintained by the
employer for its employees was considered part of the employer's premises for purposes of the LHWCA's
"course of employment" requirement. Although the Navy Exchange did not actually own the parking lot
property, it did direct its employees to park there and had an active hand in controlling the lot. The Navy
Exchange exercised significant control over where its employees parked. Therefore, the lot bore a
significant connection to the Navy Exchange's workplace such that the parking lot should be considered part
of its premises for purposes of recovery under the LHWCA.
In Sheerer v. Bath Iron Works Corp., 35 BRBS 45 (2001), the ALJ found that a worker injured
on company property while playing ping pong on his break was covered under the LHWCA as being within
the course and scope of his employment. The ALJ noted that the employer paid for and provided the ping
pong table and equipment and thereby acquiesced in the activity. Since the claimant worked the third shift
and took his break in the very early morning hours, he could not go anywhere off-premises for his breaks
since nothing was opened. In upholding the ALJ, the Board cited approvingly to Larson's Workers'
Compensation Law (2000). At Section 20.00, Larson's states:
The Act does not expressly say that the employee must at the time of injury have been
benefitting the employer; it merely says that the injury must have arisen in the course of
employment. If it can be shown that the particular activity, beneficial or not, was a part of
the employment, either because of its general nature, e.g., activities falling within the
personal comfort doctrine, or because of the particular customs and practices at the
individual worksite, e.g., certain recreational and social activities, the statue is satisfied...This
is, in essence, the general test applied by the Board in Boyd v. Ceres Terminals, 30 BRBS
218 (1997)... .
2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law Section 20.00 (2000).
[ED. Note: For a comprehensive treatment of the concept of "arising out of and within the course
of employment," see Bober, Compensable Injury or Death Arising Under the Longshore and Harbor
Worker's Compensation Act, 35 Loy. L. Rev. 1129 (1990).]
2.2.10 Employee's Intentional Conduct/Willful Act of 3rd Person
If the subsequent injury is a result of the employee's intentional conduct or negligent non-work-related conduct or a third party's intentional or negligent conduct, such conduct can be an intervening cause
relieving employer of liability. Cyr, 211 F.2d at 457; Marsala v. Triple A South, 14 BRBS 39, 43 (1981)
(issue is whether subsequent fall from a bus was caused by third-party negligence).
In Bludworth Shipyard v. Lira, 700 F.2d 1046, 15 BRBS 120 (CRT) (5th Cir. 1983), rev'g 14
BRBS 682 (1982), the Fifth Circuit held that where a prior drug addict who injured his back at work
intentionally failed to inform treating physicians of his prior addiction, and this resulted in treatment with drugs
leading to re-addiction, the employer was not liable for medical expenses incurred as a result of the re-addiction. The employee's intentional failure to inform constituted an intervening and independent cause
which nullified the connection between the back injury and the subsequent re-addiction. Lira, 700 F.2d at
1051-52, 15 BRBS at 123-24 (CRT).
In Grumbley v. Eastern Associated Terminals Co., 9 BRBS 650 (1979), benefits were denied for
a second leg injury at home (claimant fell off roof while repairing antenna) where claimant failed to take
reasonable precautions to guard himself against re-injury after the initial work-related leg injury.
The employer's liability depends on whether the subsequent injury resulted naturally or unavoidably
from the work injury or whether there was some intervening cause of the subsequent injury. Thus, the
subsequent injury must have a sufficient causal connection to the primary injury so that the employer should
be held liable for disability arising from both injuries. Where the subsequent injury outside work, however,
is caused by the negligent or intentional conduct of a third party, even under circumstances where the
claimant's work-related weakened condition contributes in a causal sense to the subsequent injury, it is not
compensable. The subsequent injury is not the natural result of the primary injury and the employer is not
responsible as the employer had no control over the negligent or intentional conduct of the third party and
this conduct had no relationship to the primary injury or to the claimant's employment.
The fundamental intent of the LHWCA is to compensate employees for the loss of wage-earning
capacity attributable to an employment-related injury, but no more. Thus, the focus of the inquiry in these
cases is whether the claimant has taken reasonable precautions in his injured or weakened condition to guard
himself against re-injury. Marsala v. Triple A South, 14 BRBS 39, 43 (1981).
In Lasky v. Todd Shipyards Corp., 8 BRBS 263, 265-66 (1978), benefits were denied to a
shipyard worker who was assaulted as he walked on his way to begin his work day through a public park
located across the street from the shipyard entrance since (1) injuries sustained on the way to work
generally are not compensable, and (2) the employer did not control the worker's route to work. (See
"Coming and Going Rule," infra at 2.2.11.)
Benefits were payable, however, in Kielczewski v. Washington Post Co., 8 BRBS 428, 431
(1978), to a claimant who had a fight with another employee as the fight occurred on the employer's
premises, but shortly after the end of the claimant's daily work when he "remained on the employer's
premises at his own convenience" to discuss with his foreman certain employment matters. The Board, in
reversing denial of benefits, held that the fight occurred in the course of claimant's employment within the
meaning of Section 2(2) of the LHWCA.
It is now well-settled that the concept of "arising out of and within the course of employment" is not
limited by the common law doctrine of scope of employment. Cardillo v. Liberty Mut. Ins. Co., 330 U.S.
469, 481 (1947). It is not necessary that the particular act or event which causes the injury be itself a part
of work done by the claimant for his employer. Hartford Accident & Indem. Co. v. Cardillo, 112 F.2d 11,
14, 15 (D.C. Cir.), cert. denied, 310 U.S. 649 (1940). For example, going to lunch, going to the restroom
or to the tool shed are considered by the Board to be incidental and routinely part of activities covered by
the LHWCA. O'Leary v. Southeast Stevedore Co., 1 BRBS 498, 501 (1975).
The standard has been established that an employee must go so far from his employment and
become so thoroughly disconnected from the service of the employer that it would be entirely unreasonable
to say that injuries suffered by the employee arose out of the course of employment. O'Leary v. Brown-Pacific Maxon, 340 U.S. 504, 507 (1951). A judge's conclusion that claimant had remained on the
employer's premises after the normal finish of the shift is not sufficient factual justification in itself to support
a denial. More factors than leaving one's job situs for a short few minutes for combined personal/business
reasons must be involved to render the claimant's activities so thoroughly disconnected from the employer's
business that it is entirely unreasonable to grant him compensation, according to the Board in Kielczewski,
8 BRBS at 430-31.
The Fourth Circuit has held that Section 3(c) does not apply where the employee disregards his
own safety by working and not taking his medication (in this case, to prevent grand mal seizures). This
activity fell short of a willful intent to injure or kill. Carolina Stevedoring Co. v. Davis, 191 F.3d 447 (4th
Cir. 1999).
Even if an injury can be considered to have arisen out of and in the course of employment under
these broad parameters, however, it is not compensable if the injury was occasioned solely by the
intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.
(See Other Exclusions, Topic 3.2, infra.).
2.2.11 Coming and Going Rule
Under the "Coming and Going" rule, an injury incurred while traveling to and from work generally
is not compensable as traveling to and from work is not within the scope of employment. See, e.g., Sawyer
v. Tideland Welding Serv., 16 BRBS 344 (1984). There are several exceptions to this rule, however, one
of which is the trip-payment exception, which applies where the employer furnishes or pays for
transportation to and from work. Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 (1947); Foster v.
Massey, 407 F.2d 343 (D.C. Cir. 1968); Oliver v. Murry's Steaks, 17 BRBS 105 (1985). See also Oliver
v. Murry's Steaks, 21 BRBS 348 (1988).
This exception to the so-called "Coming and Going" Rule has been recognized, in situations where
"the hazards of the journey may fairly be regarded as the hazards of the service." See Cardillo, 330 U.S.
at 479. These exceptions include situations where: (1) the employer pays for the employee's travel
expenses, or furnishes the transportation; (2) the employer controls the journey; (3) the employee is on a
special errand for the employer; or (4) the employee is subject to emergency calls. See generally Cardillo,
330 U.S. at 480. See also Perkins v. Marine Terminals Corp., 673 F.2d 1097, 14 BRBS 771 (9th Cir.
1982), rev'g 12 BRBS 219 (1980).
The Board has indicated that something more than the mere provision of transportation is necessary
to qualify an employee for the trip-payment exception. Oliver, 17 BRBS at 107 n.2. This requirement is
consistent with the United States Supreme Court's acknowledgment that there are many holdings which
recognize that where an employer merely pays the cost of transportation, an injury occurring during the
journey does not necessarily arise out of and in the course of employment; there must be something more
than mere payment of transportation costs. Cardillo, 330 U.S. 469.
In Cardillo, the Court held that the employer's contractual obligation to provide transportation
qualified for the exception. Similarly, in Oliver, although a contractual obligation did not exist, the Board
noted that since the claimant was in an on-call status and needed the van provided by the employer to carry
tools and equipment, his travel in the van served a special business need of the employer warranting
application of the trip-payment exception. See also I A. Larson Workmen's Compensation Law § 16.30,
at 4-208.62 n.52 (1992) (the extra pay involved merely amounted to additional compensation rather than
a special arrangement for travel expenses); Filson v. Bell Tel. Laboratories, 82 N.J. Super. 185, 197
A.2d 196 (N.J. Super. Ct. App. Div. 1964).
In what the Board has referred to as "an issue of first impression under the Longshore Act," in
Broderick v. Electric Boat Corp., 35 BRBS 33 (2001), it upheld the ALJ's finding that a van pool operation
was within the employer's conveyance exception to the comings and goings rule. Here the claimant was
injured on his way home from work while utilizing the employer's van pool. The not-for-profit venture was
started during the energy crisis to alleviate parking congestion at the employer's facility, and to aid those
employees without reliable transportation to the shipyard. The employer owned or leased the vans,
maintained them and provided insurance and special parking spots for the vans at its facility. Those
employees who participated in the program have a set amount deducted from their paychecks to cover the
salaries of those who administer the program and the costs of maintaining the vans. Maintenance occurred
during the work day. The employer monitored its costs associated with the van and adjusted the employees'
weekly fees in order to maintain the self-sufficiency of the program.
The riders separately reimbursed the driver for gasoline costs. The driver was not paid to drive the
van, but did not have to pay any fees. The drivers, who were employees of the shipyard, had to pass the
employer's screening and physical examinations necessary for a commercial driver's license. The rules
governing the van pool were drafted by the employer's legal department, and the employer referred
prospective riders to drivers with openings. Specific vans were assigned to specific routes, but the exact
route to be traveled was arranged between the driver and the passengers. Employees were not paid while
they were commuting to and from work in the van pools. In upholding the ALJ, the Board found that the
ALJ's conclusion that the employer exerted sufficient control over the van operation takes the operation into
the employer's conveyance exception. Additionally the Board noted that the van pool program actually
benefitted the employer.
In Smith v. Fruin-Colnon, 18 BRBS 216 (1986), the employee sought benefits for an injury
occurring while he was driving the employer's truck from the work site to his residence. The Board affirmed
denial of benefits as the injury did not arise out of and in the course of his employment. The employer, in
allowing the claimant to use a company truck, merely provided transportation; there was no contractual
obligation or other agreement requiring the employer to provide the claimant with a truck, and no special
business purpose was served by the employer's permitting the claimant to use it. Furthermore, the claimant
was not an "on-call" employee. The Board also discounted evidence that the employer paid all of the truck's
expenses, including repairs, after the employee was involved in an accident while driving the vehicle. Smith,
18 BRBS at 217-18.
In Harris v. England Air Force Base Nonappropriated Fund Financial Management Branch, 23
BRBS 175 (1990), benefits were denied where the claimant was injured after work on her way to her car
in the parking lot, which lot was not part of the employer's premises, because such injury occurred outside
the time and space boundaries of her employment. The Board held that none of the exceptions to the
"Coming and Going" Rule were applicable. The Board has consistently held that for an injury to be
considered to arise in the course of employment, it must have occurred within the time and space
boundaries of the employment and in the course of an activity whose purpose is related to the employment.
See, e.g., Wilson v. Washington Metro. Area Transit Auth., 16 BRBS 73, 75 (1984); Mulvaney v.
Bethlehem Steel Corp., 14 BRBS 593, 595 (1981).
In Harris, 23 BRBS 175, the Board noted that although the claimant was injured in a parking lot on
the air base, the parking lot was not a part of the employer's premises, was a separate entity operated by
non-appropriated funds, and the employer lacked any control over or responsibility for, the condition of
the area surrounding the building it occupied, including the parking lot where the injury occurred. 23 BRBS
at 178.
But see Shivers v. Navy Exchange, 144 F.3d 322 (4th Cir. 1998), where a parking lot maintained
by the employer for its employees was considered part of the employer's premises for purposes of the
LHWCA's "course of employment" requirement. Although the Navy Exchange did not actually own the
parking lot property, it did direct its employees to park there and had an active hand in controlling the lot.
The Navy Exchange exercised significant control over where its employees parked. Therefore, the lot
bore a significant connection to the Navy Exchange's workplace such that the parking lot should be
considered part of its premises for purposes of recovery under the LHWCA.
Thus, the Board distinguished those cases which allow a reasonable amount of time to enter and exit
the employer's premises. See, e.g., Bountiful Brick Co. v. Giles, 276 U.S. 154 (1928). Compare Cantrell
v. Base Restaurant, Wright-Patterson Air Force Base, 22 BRBS 372 (1989), where benefits were denied
a claimant who was injured when she fell while on base property prior to arriving at work because her injury
did not occur in the course of her employment, as it occurred prior to her arrival on employer's premises
and none of the exceptions to the "Coming and Going" Rule applied.
2.2.12 Zone of Special Danger
(See infra, Defense Base Act, Topic 60.2.)
In order to establish entitlement to benefits under the Defense Base Act (DBA), the claimant must
prove that the "obligations or conditions" of employment created a "Zone of Special Danger" out of which
injury/death arose. O'Keeffe v. Smith, Hinchman & Grylls Assocs., 380 U.S. 359 (1965); O'Leary v.
Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951); Gillespie v. General Elec. Co., 21 BRBS 56 (1988).
In two cases arising under the DBA, 42 U.S.C. § 1651 et seq., the United States Supreme Court
allowed benefits where the injury did not occur within the space and time boundaries of work, but the
employee was in a "Zone of Special Danger." In O'Leary, 340 U.S. 504, the employee, while spending the
afternoon in the employer's recreational facility near the shoreline in Guam, drowned while attempting to
rescue two men in a dangerous channel. The Court stated that "(a)ll that is required is that the obligations
or conditions of employment create the Zone of Special Danger out of which the injury arose." 340 U.S.
at 507.
In O'Keeffe, the employee drowned in a lake in South Korea during a weekend outing away from
the job; the Court noted that the employee had to work "under the exacting and dangerous conditions of
Korea." 380 U.S. at 364. See also Ford Aerospace & Communications Corp. v. Boling, 684 F.2d 640
(9th Cir. 1982) (heart attack while off duty in barracks provided by employer in Thule, Greenland, is
covered under the "Zone of Special Danger" test).
In a case reversed by the Ninth Circuit without opinion, the Board held that the "Zone of Special
Danger" doctrine only applies to the peculiar risks arising in foreign settings under the DBA. Preskey v.
Cargill, Inc., 12 BRBS 917 (1980), rev'd mem., 667 F.2d 1031, 14 BRBS 340 (9th Cir. 1981). The
District of Columbia Circuit has, however, applied this doctrine in non-Defense Base Act cases.
Durrah v. Washington Metro. Area Transit Auth., 760 F.2d 322, 17 BRBS 95 (CRT) (D.C. Cir. 1985),
rev'g 16 BRBS 333 (1984); Director, OWCP v. Brandt Airflex Corp., 645 F.2d 1053, 13 BRBS 133
(D.C. Cir. 1981) (where the employee sustained a heart attack while walking up nine flights of stairs to get
to work because his assignment was on the ninth floor and the elevators were not operating, general coming
and going rule not applicable because the stairway constitutes a "Zone of Special Danger").
In Kirkland v. Air America, Inc., 23 BRBS 348, 350-51 (1990), the Board affirmed the denial of
death benefits to the claimant, widow of the deceased employee who worked in Laos as an administrative
assistant to the employer's Director of Operations and who was murdered during the burglary of their home
in Vietnam, approximately eleven months after the claimant and decedent had met and married in Vietnam.
Benefits were denied the claimant, although the decedent was within the "Zone of Special Danger," because
(1) she participated in the murder of her husband, and (2) any causal relationship which may have existed
between the conditions created by his job and his death were effectively severed by the burglary and
murder.
In Harris v. England Air Force Base Nonappropriated Fund Financial Management Branch, 23
BRBS 175, 179 (1990), the Board held that the "Zone of Special Danger" doctrine is limited to claims filed
under the DBA and under the District of Columbia Workmen's Compensation Act (DCWCA). The Board
stated that "this test was formulated in cases arising under the Defense Base Act and is well-suited to those
cases since the conditions of the employment place the employee in a foreign setting where he is exposed
to dangerous conditions." In those cases the employer can be said to create a "Zone of Special Danger"
by employing the employee in a foreign country.
In Harris, benefits were denied as the claim was brought under the Nonappropriated Funds
Instrumentalities Act (NFIA). Accord Cantrell v. Base Restaurant, Wright-Patterson Air Force Base, 22
BRBS 372 (1989). See generally Forlong v. American Sec. & Trust Co., 21 BRBS 155, 162 (1988)
(claimant fell down a flight of stairs in Lima, Peru, while staying at the home of a relative; claim was allowed).
Benefits were denied, however, to a bartender, filing a claim under the DCWCA, who ran across
the street with a waiter from a bar to assist a patron in a fight with previously-ejected people from the bar,
the Board agreeing that the bartender "was thoroughly disconnected from employer's service when he was
injured" as he was no longer within the scope of his employment duties of protecting property and patrons
of the bar and as he was acting voluntarily on behalf of the patron, not the employer. McNamara v. Mac's
Pipe & Drum, 21 BRBS 111, 114 (1988). The Board, after re-stating the "Zone of Special Danger
doctrine," held as follows:
The United States Court of Appeals for the District of Columbia Circuit,
relying upon O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504
(1951), has stated that it is not necessary that the employee be engaged at
the time of injury in activity of benefit to his employer. All that is required
is that the obligations or conditions of employment create the Zone of
Special Danger out of which the injury arose. See Durrah, supra. As the
administrative law judge stated, the Supreme Court stated in O'Leary:
This is not to say that there are not cases 'where an
employee . . . might go so far from his employment and
become so thoroughly disconnected from the service of his
employer that it would be entirely unreasonable to say that
injuries suffered by him arose out of and in the course of
his employment. 340 U.S. at 507.
McNamara, 21 BRBS 111. Accord Gillespie v. General Elec. Co., 21 BRBS 56 (1988).
Benefits were awarded, however, to the widow of an employee in Nepal who suffered a fatal heart
attack after he had played a round of golf and had experienced a coincidental gastrointestinal attack as a
result of unsanitary living conditions there. According to the Board, "it matters little that the rupture (of the
abdominal aortic aneurysm) came as a result of a round of golf or a coincidental gastrointestinal attack." The
Board cited the following language from O'Leary, 340 U.S. 504: "all that is required is that the 'obligations
or conditions' of employment create 'the Zone of Special Danger' out of which the injury arose." Smith v.
Board of Trustees, S. Ill. Univ., 8 BRBS 197, 199 (1978).
[ED. NOTE: There is no compensable injury that covers American civilians being laid off in foreign
countries due to nationalization of jobs. The claimants are still able to preform their jobs just not
in that locale. Najjar v. Vinnell Corp., BRB No. 96-0906 (Apr. 15, 1997) (unpublished) (Defense Base
case - civilian working as a personal specialist was released due to a program of Saudization).]
2.2.13 Occupational Diseases: General Concepts
In occupational disease cases, there is no "injury" until the accumulated effects of the harmful
substance manifest themselves and the claimant becomes aware, or in the exercise of reasonable diligence
or by reason of medical advice should have been aware, of the relationship between the employment, the
disease, and the death or disability. Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied,
350 U.S. 913 (1955); Thorud v. Brady Hamilton Stevedore Co., 18 BRBS 232 (1986); Geisler v.
Columbia Asbestos, 14 BRBS 794 (1981). Nor does the LHWCA require that the injury be traceable to
a definite time. The fact that the claimant's injury occurred gradually over a period of time, as a result of
continuing exposure to conditions of employment, is no bar to a finding of an injury within the meaning of
the LHWCA. Bath Iron Works Corp. v. White, 584 F.2d 569 (1st Cir. 1978).
The concept of "no injury until manifestation" carries over to the issue of situs as well. The expanded
situs requirement (after the 1972 Amendments) applies to employees and their survivors, even though the
employee was exposed to the hazardous stimuli before the effective date of the Amendments, in an area that
was not a covered situs before the 1972 Amendments. Insurance Co. of North America v. U.S. Dep't of
Labor, 969 F.2d 1400, 26 BRBS 14 (CRT) (2d Cir. 1992), cert. denied, 507 U.S. 909 (1993) (Date of
manifestation of occupational disease with long latency period, rather than date of last exposure, determines
whether LHWCA as amended, applies to employee or survivor seeking benefits.).
However, it is possible for an aggravation of an occupational injury to be considered a new injury.
Bath Iron Works Corp. v. Director, U.S. Dept. of Labor,(Jones), 193 F.3d 27 (1st Cir. 1999)(Initial
asbestos-related injury was aggravated by further exposure to pulmonary irritants and was subsequently
found to be a "new" injury resulting in an increase in benefits payable by a new carrier and based upon the
average weekly wage at the time of the new injury). In Jones, while the claimant continued to work at the
same shipyard during the entire period in question, there were two separate periods of exposure with the
claimant having been employed in at least three different positions (Positions one and three exposed him to
asbestos.) With at least two different carriers.
In Gencarelle v. General Dynamics Corp., 22 BRBS 170, 173 (1989), the Board was presented
with the issue of whether chronic synovitis of the knees is an occupational disease. Board case law has
applied the occupational disease provisions of the LHWCA to work-related injuries that are potential
hazards to the entire class of longshore employees in similar employment; thus, occupational disease claims
generally have involved pulmonary conditions such as asbestosis and bronchial asthma, as well as hearing
loss claims, all of which conditions result from work exposure to environmental hazards common to all
employees in similar positions of employment. See, e.g., Barlow v. Western Asbestos Co., 20 BRBS 179
(1988); Horton v. General Dynamics Corp., 20 BRBS 99 (1987); Thorud v. Brady Hamilton Stevedore
Co., 18 BRBS 232 (1986); Cox v. Brady-Hamilton Stevedore Co., 18 BRBS 10 (1985).
As discussed at length above, Section 2(2) of the LHWCA defines injury as including "accidental
injury or death arising out of and in the course of employment and such occupational disease or infection as
arises naturally out of such employment or as naturally or unavoidably results from such accidental injury."
33 U.S.C. § 902(2). Professor Larson states that there are two crucial characteristics of an
occupational disease:
1) an inherent hazard from continued exposure to conditions of a
particular employment, and
2) gradual, rather than sudden, onset.
1B Larson, Workman's Compensation Law § 41.31 (1992). An occupational disease is in contrast to an
accidental injury, which is generally unexpected and has a sudden onset.
[ED. NOTE: While hearing loss is technically classified as an "occupational disease," it is not the
type of occupational disease that is commonly contemplated by the LHWCA, jurisprudence or
workers compensation law commentators such as Larson, and should be treated similarly to
traumatic injuries . Examples of what the jurisprudence contemplates as "true" occupational
diseases are the asbestos related illnesses. (I.e., mesothelioma, asbestosis.) In distinguishing true
occupational diseases from traumatic type injuries, the LHWCA itself references a true occupational
disease as "an occupational disease which does not immediately result in a disability or death." See
Section 12(a) and 13(b)(1). In Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 26 BRBS
151 (CRT) (1993), a unanimous Supreme Court followed the First Circuit and held that claims for
hearing loss, whether filed by current workers or retirees, are claims for a scheduled injury and must
be compensated pursuant to Section 8(c)(13) of the LHWCA, ["the Schedule" for some traumatic
injuries] not Section 8(c)(23) [the occupational disease retiree section]. Noting that hearing loss
occurs simultaneously with the exposure to excessive noise, the Court found that hearing loss is not
an occupational disease "which does not immediately result in ... disability," and therefore is not to
be treated the same as, for example, asbestosis, where it takes years for the symptoms to manifest
after the injurious exposure. This concept of a true occupational disease as requiring a gradual,
rather than sudden, onset, is in line with most commentators. See, e.g., 1B A. Larson, Workman's
Compensation Law § 41.31 (1992).]
Claimant's treating physician in Gencarelle, 22 BRBS 170, defined chronic synovitis as the reaction
of the knee joint to debris cast off by a degenerating arthritic knee. There was no evidence of record that
the claimant's employment caused his pre-existing arthritic condition. The pre-existing condition was unique
to claimant, and there was no evidence that synovitis is an inherent hazard to those in employment similar
to claimant. Thus, the first characteristic of an occupational disease as suggested by Professor Larson was
not satisfied in Gencarelle. In addition, there was no evidence that synovitis naturally arose out of the
claimant's employment. See 33 U.S.C. § 902(2).
In Gencarelle, the Board also noted that an injury may occur over a gradual period of employment
and still be construed as accidental. See Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986); Gardner v. Bath
Iron Works Corp., 11 BRBS 556 (1979), aff'd sub nom. Gardner v. Director, OWCP, 640 F.2d 1385,
13 BRBS 101 (1st Cir. 1981). The Board rejected claimant's contention that he is entitled to the two-year
statute of limitations for occupational diseases and affirmed the judge's application of the one year statute
of limitations of Section 13. Gencarelle, 22 BRBS at 173.
The Board's decision was affirmed in Gencarelle v. General Dynamics Corp., 892 F.2d 173, 23
BRBS 13 (CRT) (2d Cir. 1989), wherein the court held that the claimant's activities of repeated bending,
stooping, and climbing were not "peculiar to" his employment as a maintenance worker but were common
to many occupations and to life in general. These activities "are not the repetitive biomechanical stresses that
lead to occupational diseases." In Gencarelle, the court discussed the parameters of occupational diseases
and stated that "[a] panoply of definitions have sprouted from state courts and legislatures for state workers'
compensation programs." Id. at 176, 23 BRBS at 18. See generally 1B Larson, The Law of Workmen's
Compensation §§ 41.00-41.32, at 7-353--73 (1992).
The generally accepted definition of an occupational disease is:
any disease arising out of exposure to harmful conditions of the
employment, when those conditions are present in a peculiar or increased
degree by comparison with employment generally.
Larson, supra, § 41.00, at 7-353.
The Second Circuit then summarized the concept of occupational diseases as follows:
From this definition emerge at least three elements that must be
satisfied before finding that an employee has an occupational disease.
First, the employee must suffer from a "disease." The term "disease" has
been expansively interpreted to include any "serious derangement of health"
or "disordered state of an organism or organ." Larson, supra, § 41.42, at
7-408 (citation omitted)...
Second, "hazardous conditions" of employment must be the cause of the
disease. Traditionally, these hazardous conditions have been of an external,
environmental nature such as asbestos, coal dust, or radiation...
The third element of an occupational disease is that the hazardous
conditions must be "peculiar to" one's employment as opposed to other
employment generally. Speaking for this court, Judge Learned Hand
concluded:
It is indeed necessary not to extend the statute [LHWCA]
so as to make it a general health insurance, and to avoid
this, the coverage [for occupational disease] must be
limited to diseases resulting from working conditions
peculiar to the calling. In order to recover a workman
must be exposed to hazards greater than those involved in
ordinary living, and the disease must arise from one of
these.
Grain Handling Co. v. Sweeney, 102 F.2d 464, 465 (2d Cir. 1939)
(citations omitted), cert. denied, 308 U.S. 570 (1939); see also Director,
Office of Workers Compensation Programs v. General Dynamics Corp.,
769 F.2d 66, 68 (2d Cir. 1985) (finding no evidence that claimant's
disease resulted from 'a hazard peculiar to' his work).
The relevant comparison is between the hazardous conditions at the
claimant's workplace and the corresponding conditions - or background
risks - of employment generally. See Goldberg v. 954 Marcy Corp., 276
N.Y. 313, 319, 12 N.E. 2d 311, 313 (N.Y. 1938) ("disease" on legs of
theater ticket seller not hazard of her employment). The hazardous activity
need not be exclusive to one's employment; it need only be sufficiently
distinct from hazardous conditions associated with other types of
employment. See Underwood, 329 Mich. at 276, 45 N.W. 2d at 287.
Gencarelle, 892 F.2d at 176-77, 23 BRBS at 18-20 (CRT) (emphasis added).
As noted above, the Board has held that an injury may occur over a gradual period of employment
and still be construed as accidental. See generally Pittman v. Jeffboat, Inc., 18 BRBS 212 (1986). In
Pittman, the Board affirmed an award of benefits where the claimant's work as a tugboat steel fitter
aggravated, accelerated and exacerbated his hemorrhoids resulting in surgery and a work absence of two
months, the Board holding that the claimant's injury occurred gradually over a period of time as a result of
continuing exposure to conditions of employment, i.e., the constant lifting and straining required by his work,
and that the employer failed to rebut the Section 20(a) presumption by producing substantial evidence that
claimant's hemorrhoids were not aggravated by his employment.
In Pittman, the employer had argued that an accidental injury within Section 2(2) is one which occurs
suddenly or unexpectedly, and not over a long period of time. The Board had previously rejected similar
arguments, holding that the LHWCA cannot be construed so as to limit compensable injuries to those which
occur suddenly, as opposed to those which occur over a long period of time. Gardner v. Bath Iron Works
Corp., 11 BRBS 556 (1979), aff'd, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981). That the claimant's
injury occurred gradually over a period of time, as a result of continuing exposure to conditions of
employment, is no bar to a finding of an injury under Section 2(e). Pittman, 18 BRBS at 214.
2.2.14 Occupational Disease & Disability
In Carver v. Ingalls Shipbuilding, Inc., 24 BRBS 243 (1991), compensation benefits were not
awarded because the record contained no permanent impairment rating on which an award could be based.
The claimant, however, would be entitled to an award of medical benefits for his work-related silicosis. See
also Ponder v. Peter Kiewit Sons' Co., 24 BRBS 46 (1990).
2.2.15 Occupational Disease vs. Traumatic Injury
The Ninth Circuit held that where a claimant's injury, although due to a traumatic episode, was not
evident until a few years later, the term "injury" under the LHWCA meant injury as of the time when the
disability attributable to the injury became manifest and benefits to the claimant are based on the average
weekly wage as of the time the claimant became disabled by her injury. Johnson v. Director, OWCP, 911
F.2d 247, 24 BRBS 3 (CRT) (9th Cir. 1990), cert. denied, 499 U.S. 959 (1991).
In Carlisle v. Bunge Corp., 33 BRBS 133 (1999), claimant worked as a river operator, operating
joysticks for usually three to four hours per day, but sometimes would work as much as eight hours a day
for several weeks at a time. Claimant's other job duties included carrying heavy loads, pulling cables
through loaded barges, climbing ladders, lifting barge doors and scooping beans with a shovel. The ALJ
held that the claimant had suffered an occupations disease for pain and weakness in his hands.
The Board noted that "claimant's employment requiring the operation of joysticks and bobcat levers,
involved 'harmful' repetitive hand and arm movements, which are peculiar to his job as a river operator ...
claimant's use of joysticks would require 'a marked amount of flexion/extension, ulnar and radial flexion in
alternating movements,' and thus, those activities are significantly attributable to his condition." Accordingly,
the Board affirmed the ALJ and found that claimant's occupational disease afforded him the benefit of the
longer statute of limitations prescribed by Section 13(b)(2) and his claim for compensation was therefore
timely.
ED. NOTE: While hearing loss is technically classified as an "occupational disease," it is not the
type of occupational disease that is commonly contemplated by the LHWCA, jurisprudence or
workers compensation law commentators such as Larson, and should be treated similarly to
traumatic injuries . Examples of what the jurisprudence contemplates as "true" occupational
diseases are the asbestos related illnesses. (I.e., mesothelioma, asbestosis.) In distinguishing true
occupational diseases from traumatic type injuries, the LHWCA itself references a true occupational
disease as "an occupational disease which does not immediately result in a disability or death." See
Section 12(a) and 13(b)(1). In Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153, 26 BRBS
151 (CRT) (1993), a unanimous Supreme Court followed the First Circuit and held that claims for
hearing loss, whether filed by current workers or retirees, are claims for a scheduled injury and must
be compensated pursuant to Section 8(c)(13) of the LHWCA, ["the Schedule" for some traumatic
injuries] not Section 8(c)(23) [the occupational disease retiree section]. Noting that hearing loss
occurs simultaneously with the exposure to excessive noise, the Court found that hearing loss is not
an occupational disease "which does not immediately result in ... disability," and therefore is not to
be treated the same as, for example, asbestosis, where it takes years for the symptoms to manifest
after the injurious exposure. This concept of a true occupational disease as requiring a gradual,
rather than sudden, onset, is in line with most commentators. See, e.g., 1B A. Larson, Workman's
Compensation Law § 41.31 (1992). For more on hearing loss, see Topic 8.13.]
2.2.16 Occupational Diseases and the Responsible Employer/Carrier
Responsible Employer
The responsible employer is the employer who last exposed the employee to injurious stimuli prior
to the date upon which the claimant was aware or should have been aware, of the relationship between the
disability, disease, and employment. See Travelers Ins. Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert.
denied, 350 U.S. 913 (1955); Ranks v. Bath Iron Works Corp., 22 BRBS 302 (1989), Ramey v.
Stevedoring Services of America, 134 F.3d 954 (9th Cir. 1998). In occupational disease cases, the last
covered employer is liable for the totality of the claimant's disability from the occupational disease,
regardless of whether it was aggravated by subsequent non-covered employment. Labbe v. Bath Iron
Works Corp., 24 BRBS 159, 162 (1991); see also, Bath Iron Works v. Brown, 194 F.3d 1 (1st Cir.
1999). However, one must keep in mind that it is possible to have an occupation disease injury followed
by an aggravation of an asbestos-related injury that, under certain factual circumstances, may be considered
a new injury. Bath Iron works Corp. v. Director, U.S. Dept. of Labor, (Jones),193 F.3d 27 (1st Cir.
1999)(Initial asbestos-related injury was aggravated by further exposure to pulmonary irritants and was
subsequently found to be a "new" injury resulting in an increase in benefits payable by a new carrier and
based upon the average weekly wage at the time of the new injury).
The Board has consistently held that the awareness component of the Cardillo standard is in essence
identical to the awareness standard of Sections 912(a) and 13(b)(2). See, e.g., Vanover v. Foundation
Constructors, 22 BRBS 453, 456 (1989).
Exposure to injurious stimuli in areas outside the LHWCA's coverage, which occurs subsequent to
the covered exposure, does not alter the responsible employer's liability; the last employer covered under
the LHWCA is responsible. Todd Shipyards Corp. v. Black, 717 F.2d 1280, 16 BRBS 13 (CRT) (9th
Cir. 1983), aff'g in pertinent part 13 BRBS 682 (1981), cert. denied, 466 U.S. 937 (1984); Hughes v.
Bethlehem Steel Corp., 17 BRBS 153 (1985); Green v. Newport News Shipbuilding & Dry Dock Co.,
13 BRBS 562 (1981), vacated on other grounds, 688 F.2d 833 (4th Cir. 1982) (per curiam), opinion
following remand, 15 BRBS 465 (1983).
[ED. NOTE: For a discussion and criticism of the "last maritime employer rule" versus the "last
employer rule, see Junius C. McElveen, Jr. & Lawrence P. Postol, "Compensating Occupational
Disease Victims Under the Longshoremen's and Harbor Workers' Compensation Act," 32 Am. U.L.
Rev. 717, 761-62 (1983)(A last maritime or covered employer rule "undercut[s] the basic rationale
of the last employer rule, that each employer will be the last employer a proportionate share of the
time."). While the article makes several points, the courts continue to note policy arguments
supporting an extension of the last employer rule to the last maritime employer. See for example,
Bath Iron Works v.Brown, 194 F.3d 1,(1st Cir. 1999)(Without the last maritime employer rule an
employer could manipulate the system by transferring an exposed employee from a covered to a non-covered facility.); See Fulks v. Avondale Shipyards, Inc., 10 BRBS 340, at 345 (1979), aff'd, 637 F.2d
1008 (5th Cir. 1981); cf. Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1285 (9th Cir. 1983).]
The last employer rule is "a rule of liability assessment, not of jurisdiction." Fulks v.
Avondale Shipyards, 10 BRBS 340, 345 (1979), aff'd, 637 F.2d 1008, 12 BRBS 975 (5th Cir.), cert.
denied, 454 U.S. 1080 (1981) (emphasis added).
The Cardillo rule applies only to occupational diseases, Melson v. United Brands Co., 6 BRBS 503
(1977), aff'd, 594 F.2d 1068, 10 BRBS 494 (5th Cir. 1979).
The purpose of the last employer rule of Cardillo is to avoid the complexities of assigning joint
liability where the claimant has worked for several maritime employers or where the employer has been
represented by several carriers during the pertinent period.
Although there have been attempts to limit the application of the Cardillo rule in hearing loss cases,
it is well to keep in mind that Cardillo involved three shipyard workers seeking disability for work-related
hearing losses. See also, Ramey v. Stevedoring Serrvices of America, 134 F.3d 954 (9th Cir. 1998) (Held:
there was sufficient evidence in this hearing loss case to apply last employer rule; claimant's benefits would
be based on his average weekly wage as of last day of employment rather than date of first audiogram.).
Moreover, Second Circuit Judge Medina explained the genesis of the Cardillo rule in these
prescient and extremely practical words:
It would be sheer folly to seek or expect to discover a formula devoid of
any possibility of inequity or seeming injustice. Cardillo, supra, 225 F.2d
at 144. His conclusion that the last carrier bear the sole responsibility was
grounded on two major considerations. The first was the great difficulty,
if not practical impossibility, in determining with any degree of medical
certainty: a) the time within which occupational disease develop; b) the
extent of damage at any particular date as the disease evolves; or c) the
correlation of the progression of the disease with specific industrial
experiences.... Secondly, [he] concluded that the answer to the question
to be resolved was evident from the legislative history of the Act, which
was fully discussed in his opinion.
General Dynamics Corp., Elec. Boat Div. v. Benefits Review Bd., 565 F.2d 208, 7 BRBS 831, 833 (2d
Cir. 1977), aff'g Gray v. General Dynamics Corp., Elec. Boat Div., 5 BRBS 279 (1976).
In Susoeff v. San Francisco Stevedoring Co., 19 BRBS 149 (1986), the Board held that the burden
is not on the claimant to establish the responsible employer, and an employer joined in the case can escape
liability (1) by rebutting the presumption that exposure to the injurious stimuli did not cause the bodily harm
or (2) by demonstrating that the employee was exposed to injurious stimuli while performing work covered
under the LHWCA for a subsequent employer. Susoeff, 19 BRBS at 151. See also General Ship Serv.
v. Director, OWCP (Barnes), 938 F.2d 960, 25 BRBS 22 (CRT) (9th Cir. 1991).
In a case involving a claim under Section 8(c)(23), a voluntary retiree may not be charged with such
awareness until he knows that a permanent impairment exists. Lombardi v. General Dynamics Corp., 22
BRBS 323 (1989); Curit v. Bath Iron Works Corp., 22 BRBS 100 (1988).
Where there is no evidence of record which establishes that the claimant had any rateable permanent
physical impairment prior to his September 23, 1981 hospitalization or that he was made aware of a
permanent condition prior to that date, the claimant cannot be held to be aware of the relationship between
his occupational disease, employment, and disability prior to the date he became disabled, Lindsay v.
Bethlehem Steel Corp., 18 BRBS 20 (1985); 20 C.F.R. §§ 702.212(b), 702.222(c), until such time as a
physician issues a disability or impairment rating. Carver v. Ingalls Shipbuilding, Inc., 24 BRBS 243, 246-47 (1991).
Moreover, the claimant cannot receive benefits under Section 8(c)(23) in addition to total disability
benefits. Carver, 24 BRBS at 247. See also Hoey v. Owens-Corning Fiberglass Corp., 23 BRBS 71
(1989).
Apportionment of liability among competing employers or carriers is not permitted under the
LHWCA. McCabe v. Sun Shipbuilding & Dry Dock Co., 1 BRBS 509 (1975), aff'd in part and rev'd in
part, 593 F.2d 234, 10 BRBS 614 (3d Cir. 1979). However, consider Total Marine Services v. Director,
OWCP, 87 F.3d 774, 777 (5th Cir. 1996), where the Fifth Circuit ordered one maritime employer to
reimburse another for compensation paid on behalf of an employee that had been borrowed by the
subcontractor. For more see Borrowed Employee Doctrine below.
The Ninth Circuit also rejected apportionment in Todd Shipyards Corp. v. Black, 717 F.2d 1280,
16 BRBS 13 (CRT) (9th Cir. 1983), cert. denied, 466 U.S. 937 (1984), holding that "requiring a worker
injured under such circumstances (i.e., occupational disease) to prove proportionate liability might be
tantamount to denying him any recovery whatsoever." Id. at 1285, 16 BRBS at 18 (CRT).
The assignment of joint and several liability under the LHWCA generally has been limited to those
situations where the employee worked for two employers at the same time. See Total Marine Services
v. Director, OWCP, 87 F.3d 774, 777 (5th Cir. 1996) (indemnification of contractor by subcontractor);
Oilfield Safety & Mach. Specialties v. Harman Unlimited, 625 F.2d 1248 (5th Cir. 1980), aff'g Hansen v.
Oilfield Safety, 8 BRBS 835 (1978) and 9 BRBS 490 (1979).
The Board has consistently held that the last exposure rule of Cardillo does not require a showing
of an actual medical causal relationship between the claimant's exposure and his occupational disease.
Franklin v. Dillingham Ship Repair, 18 BRBS 198 (1986). In Franklin, the employer conceded that it may
have been the last employer to expose the claimant to asbestos, but argued that such exposure was not
injurious and did not cause any increase in such disability.
In Proffitt v. E. J. Bartells Co., 10 BRBS 435 (1979), the Board held that two days exposure to
the harmful stimuli is sufficient to impose liability on that employer without demonstration of "distinct
aggravation" from the stimuli.
In determining the responsible employer, the Ninth Circuit has held: "All that must be proved is
that the covered employer exposed the worker to injurious stimuli in sufficient quantities to cause the
disease." Black, 717 F.2d at 1285, 16 BRBS at 17 (CRT).
The Ninth Circuit was again faced with interpreting the Cardillo rule in Port of Portland v. Director,
OWCP (Ronne), 932 F.2d 836, 24 BRBS 137 (CRT) (9th Cir. 1991), wherein the court held, as a matter
of law, that it was "factually impossible for Ronne's employment with Port of Portland, which began four
days after the audiogram was administered, to have contributed in any way to Ronne's hearing loss." Id.
at 840, 24 BRBS at 143 (CRT).
Although the Ninth Circuit "agree(d) with the Board that Cordero v. Triple A Machine Shop, 580
F.2d 1331 (9th Cir. 1978), cert. denied, 440 U.S. 911 (1979), does not require a demonstrated medical
causal relationship between the claimant's exposure and his occupational disease," the court held that
"Cordero does require that liability rest on the employer covering the risk at the time of the most recent
injurious exposure related to the disability." Moreover, "the fact that Ronne may have experienced
subsequent exposure to industrial noise while working for the Port of Portland is irrelevant because no part
of the claim is based on any such exposure." Id.
Thus, the court "reject(ed) any reading of Cardillo that would impose liability on an employer who
could not, even theoretically, have contributed to the causation of the disability." Port of Portland, 932 F.2d
at 840-41, 24 BRBS at 143-44 (CRT).
The Board followed the Cardillo-Cordero rule in Mauk v. Northwest Marine Iron Works, 25
BRBS 118 (1991), a claim arising within the jurisdiction of the Ninth Circuit, wherein the Board held that
"liability falls on the last covered employer to expose the employee to injurious stimuli prior to the
administration of the determinative audiometric examination establishing disability irrespective of claimant's
receipt of the audiogram." Mauk, 25 BRBS at 124 (emphasis added).
"Minimal exposure" to asbestos and its place within the Cardillo rule was the issue in Todd
Pacific Shipyards v. Director, OWCP (Picinich), 914 F.2d 1317, 24 BRBS 36 (CRT) (9th Cir. 1990),
rev'g Picinich v. Lockheed Shipbuilding, 22 BRBS 289 (1989).
In Picinich, the judge had found that the decedent was not exposed to "injurious stimuli," i.e.,
asbestos, while working for the most recent employer as any exposure during the pertinent period was
"minimal." The Board reversed, holding that a marine chemist's tests indicated that asbestos fibers were
present in the ambient air aboard the vessel subsequent to the asbestos removal procedures.
Moreover, the Board, after agreeing that "our review of the record shows that conclusion (i.e.,
minimal exposure to asbestos) is supported by the relevant evidence, imposed liability on the most recent
employer and, citing a consistent line of cases, the Board "rejected the contention that an employee's
exposure to the injurious stimuli must actually contribute to or aggravate his disability before an employer
may be held liable for the payment of benefits under the LHWCA. Picinich, 22 BRBS at 292, and cases
cited therein.
On appeal, the Ninth Circuit reversed the Board, holding that "minimal exposure" to asbestos
is not sufficient and that decedent's employment must have "exposed [him] to injurious stimuli in
sufficient quantities to cause the disease." Todd Pac. Shipyards, 914 F.2d at 1320, 24 BRBS at 40
(CRT). The court pointed out that the correct test is as follows:
All that must be proved is that the covered employer exposed the worker
to injurious stimuli in sufficient quantities to cause the disease.
Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1286 (9th Cir. 1983).
Lustig v. Todd Shipyards Corp., 20 BRBS 207 (1988) involved an employee who became totally
disabled as a result of lung cancer caused in part by asbestos exposure. Two carriers provided coverage
under the LHWCA to the employer during the employee's employment as a pipe-fitter from 1961 to 1984.
The employee died four months after he stopped working. The Board affirmed the holding of the judge
imposing liability on the carrier on the risk when the employee was last exposed to the injurious stimuli prior
to his awareness that he was suffering from an occupational disease.
The Board rejected the argument of Aetna, the later carrier, that while exposure to a harmful
substance can produce an injury, unless such exposure actually causes or contributes to the disability for
which the claimant is seeking compensation, the later carrier is not liable. The Board pointed out that the
last exposure rule does not require a showing of an actual medical causal relationship between claimant's
exposure and his occupational disease. Lustig, 20 BRBS at 213. See Perry v. Jacksonville Shipyards, 18
BRBS 219, 222 (1986); Whitlock v. Lockheed Shipbuilding & Constr. Co., 12 BRBS 91 (1980).
Lustig was appealed and the Ninth Circuit affirmed the Board's decision and rejected Aetna's
argument that Todd Shipyards should not be held liable as the last maritime employer because it provided
coverage under the LHWCA for the employer during the employee's last eight years of work with the
employer and because there is a 10-year latency period between asbestos exposure and the manifestation
of the asbestos-related lung cancer. Aetna, arguing that the first carrier which had insured the employer from
1961 to 1976 should be responsible for any benefits awarded, maintained that any asbestos exposure after
1971 "would not have had any effect on Mr. Lustig's disability." The court rejected that position as "an
unwarranted change of the last employer rule set forth in Travelers Insurance Co. v. Cardillo, 225 F.2d 137
(2d Cir.), cert. denied, 350 U.S. 913 (1955)...." Lustig v. U.S. Dep't of Labor, 881 F.2d 593, 22 BRBS
159, 162 (9th Cir. 1989).
The First Circuit has held that, as between two insurers disputing which must pay claims under the
LHWCA, the carrier which last insured the liable employer during the period in which the claimant was
exposed to the injurious stimuli and prior to the date the claimant became disabled by an occupational
disease arising naturally out of his employment and exposure, is responsible for discharging the duties and
obligations of the liable employer. Liberty Mut. Ins. Co. v. Commercial Union Ins. Co., 26 BRBS 85
(CRT) (1st Cir. 1992).
In a hearing loss case, Roberts v. Alabama Dry Dock and Shipbuilding Corporation, 30 BRBS 229
(1997), there was a single employer who was self-insured at the time of the first audiogram. The first
audiogram was performed while the employer was self-insured and the second while the employer was
insured by Travelers. The first showed a 3% hearing loss while the second recorded a .6% loss, an
improvement of 2.4%. The Board held that if there are two audiograms, separated by a period of time, and
the second audiogram does not show an increase over the first, then the employer at the time of the first
audiogram which shows a hearing loss is liable. Therefore, the Board held that the liability fell upon the
employer while self-insured, as this was the employer at the onset of the hearing loss. 30 BRBS at 234.
See Port of Portland v. Director, OWCP, 932 F.2d 836 (9th Cir. 1991) (date of disability governs
employer liability); Argonaut Ins. Co. v. Patterson, 846 F.2d 715 (11th Cir. 1988) (the Eleventh Circuit
noted that Cardillo linked awareness to suffering and concluded that mere awareness of a disease is not, in
and of itself, tantamount to suffering from that disease, especially since the term "suffering" carries "very
particular connotations which it can not be assumed the Second Circuit [Cardillo] meant to ignore.").
See also 4A Larson, The Law of Workmen's Compensation § 95.25(a) (1990) (stating that a date-of-disability rule is "frequently chosen" in the workers' compensation area); see, e.g., Carver v. Ingalls
Shipbuilding, Inc., 24 BRBS 243, 246-47 (1991) (holding that employer liability attaches at date of
disablement); Thorud v. Brady Hamilton Stevedore Co., 18 BRBS 232, 235 (1986) (holding that carrier
liability attaches as of the date that the employee's long-latency occupational disease "affected his ability to
earn wages").
Significantly, the First Circuit in Liberty Mutual held that the date of disability is determined by the
date of decreased earning capacity. Thus, the carrier that had assumed the risk after the diagnosis of
asbestosis, but before the claimant suffered any decrease in wage-earning capacity is liable.
[ED. NOTE: Query the situation where a claimant, newly diagnosed as having mesothelioma, has
been exposed to asbestos for 30 or more years at the workplace and the maritime employer(s) has
had successive carriers. Since the latency period for mesothelioma can be more than 20 years, and
since mesothelioma can theoretically be caused by one asbestos fiber, is the Cardillo rule reasonable
? ]
Borrowed Employee Doctrine
In Total Marine Services v. Director, OWCP, the Fifth Circuit held that under the borrowed
employee doctrine "'[o]ne may be in the general service of another, and, nevertheless, with respect to
particular work, may be transferred, with his own consent or acquiescence, to the service of a third party,
so that he becomes the servant of that person with all the legal consequences of the new
relationship."' Total Marine Services v. Director, OWCP, 87 F.3d 774, 777 (5th Cir. 1996), citing
Standard Oil Co. v. Anderson, 212 U.S. 215 (1909)(emphasis in original). This leads to the conclusion that
the borrowing employer is liable for securing the injured claimant's compensation benefits under the
LHWCA. Id.; see also Champagne v. Penrod Drilling Co., 341 F.Supp. 1282, 1283 (W.D.La.1971),
aff'd, 459 F.Supp. 1042 (5th Cir. 1971), modified on other grounds, 462 F.2d 1372 (1972), cert denied
409 U.S. 1113, (1973); West v. Kerr-McGee Corp., 765 F.2d 526 (5th Cir. 1985).
[ED. NOTE: There is language in the holding of Total Marine Services that " in the absence of a
valid and enforceable indemnification agreement, the borrowing employer is required to reimburse
an injured worker's formal employer for any compensation benefits it has paid to the injured
worker." 87 F.3d 774. This is a singular instance of the courts endorsing such a reimbursement.
The LHWCA has no provisions for this and the Fifth Circuit did not give any explanation for its
holding. The most plausible explanation is that the Fifth Circuit found that the subcontractor had
breached its duty to provide for the compensation payments, thus equity says that they should not
be allowed to profit from their dereliction of duty. This is an isolated case and should be narrowly
limited to its facts.]
In Temporary Employment Services v. Trinity Marine Group, Inc., 261 F.3d 456 (5th Cir. 2001),
the Fifth Circuit found that the ALJ did not have jurisdiction to determine the merits of certain contractual
rights and liabilities arising from an indemnification agreement between the borrowing employer and the
loaning employer. Additionally the court found that the ALJ did not have jurisdiction to address a waiver
of subrogation by the loaning employer's carrier. The jurisdiction issue turned on the interpretation of that
part of Section 19(a) of the LHWCA stating that an ALJ has authority "to hear and determine all questions
in respect of such claims." The Fifth Circuit concluded that the contract dispute was not integral to the
longshore compensation claim and that the Board and the ALJ did not have the statutory authority to
determine that issue.
In Weber v. S.C. Loveland Co. (WeberIII), ___ BRBS ___ (BRB Nos. 00-838, 00-838A and
00-838B) (Jan. 30 2002), the Board distinguished Temporary Employment Services. The issue in Weber
was which of two, if any insurers was on the risk for longshore benefits at the time of the claimant's injury
and is liable for those benefits. In Weber, the claimant was injured in Jamaica and the Board found that the
claimant was "covered under the LHWCA." There were two insurance policies in question.. One covered
injuries within the United States and included Longshore coverage. The other covered injuries outside the
U.S. and did not include Longshore coverage. The Board noted that in Temporary Employment Services,
the Fifth Circuit held that contractual disputes between and among insurance carriers and employers which
do not involve the claimant's entitlement to benefits or which party is responsible for paying those benefits,
are beyond the scope of authority of the ALJ and the Board. However, the Board found that Weber "does
not involve indemnification agreements among employers and carriers, but presents a traditional issue of
which of employers' carriers is liable." Thus the Board found that the ALJ has the authority to address the
issue.
In Fitzgerald v. Stevedoring Services of America, ___ BRBS ___, (BRB No. 00-0724) (Jan. 31,
2001), the Board held that a nominal employee of a government subdivision (port authority) is not exclude
from the borrowed employee doctrine as a matter of law. The Board held that Section 3(b), concerning
the immunity of government entities from liability under the LHWCA, did not prevent a nominal state
employee from becoming a borrowed employee of a statutory employer. In reaching this conclusion, the
Board noted the wording of Section 4(a) of the LHWCA. In pertinent part, Section 4(a) reads:
Every employer shall be liable for and shall secure the payment to his employees of the
compensation payable under sections 7, 8, and 9. In the case of an employer who is a
subcontractor, only if such subcontractor fails to secure the payment of compensation shall
the contractor be liable for and be required to secure the payment of compensation. ...
(Emphasis added by the Board.)
Thus the Board reasoned, under Section 4(a), all employers, including borrowing employers, are liable for
compensation under the LHWCA. The Board used this case to reiterate its recommended use of the "Ruiz-Gaudet borrowed employer test" to determine if a claimant is a borrowed employee. See Ruiz v. Shell Oil
Co., 413 F.2d 310 (5th Cir. 1969) and Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977), cert.
denied, 436 U.S. 913 (1978) for the nine part test.
Responsible Carrier
In occupational disease cases, the method for determining the responsible carrier emanates from
Travelers Insurance Co. v. Cardillo, 225 F.2d 137 (2d Cir.), cert. denied, 350 U.S. 913 (1955). After
establishing the "last employer" rule, the Second Circuit stated:
...the treatment of carrier liability was intended to be handled in the same
manner as employer liability, and that the carrier who last insured the
"liable" employer during claimant's tenure of employment, prior to the date
claimant became aware of the fact that he was suffering from an
occupational disease arising naturally out of his employment, should be held
responsible for the discharge of the duties and obligations of the "liable"
employer.
225 F.2d at 145.
This rule has been consistently followed. General Dynamics Corp., Elec. Boat Div. v. Benefits
Review Bd., 565 F.2d 208, 7 BRBS 831 (2d Cir. 1977). Although the carrier rule does not explicitly refer
to last exposure prior to awareness, a majority of the Board held that the last carrier rule should be applied
in the same manner as the last employer rule. Perry v. Jacksonville Shipyards, 18 BRBS 219 (1986). Thus,
the Board remanded for a determination of the carrier insuring employer during the claimant's last exposure
to injurious stimuli prior to awareness.
As with the responsible employer, it is irrelevant that a claimant's condition existed while a prior
carrier was on the risk. Todd v. Todd Shipyards Corp., 16 BRBS 163 (1984). See also Patterson v.
Savannah Mach. & Shipyard, 15 BRBS 38 (1982); Brown v. General Dynamics Corp., 7 BRBS 561
(1978); Eleazer v. General Dynamics Corp., 7 BRBS 75 (1977).
The Board has affirmed a judge's finding of responsible carrier where the insurance policies were
no longer in existence, and the only available evidence indicated the carrier was the last carrier. The burden
was on the carrier to show it was not the insurer. Dolowich v. West Side Iron Works, 17 BRBS 197
(1985).
Where necessary to resolve a claim for compensation benefits, the judge may adjudicate insurance
contract disputes. Rodman v. Bethlehem Steel Corp., 16 BRBS 123 (1984); Valdez v. Bethlehem Steel
Corp., 16 BRBS 144 (1984); Droogsma v. Pensacola Stevedoring Co., 11 BRBS 1 (1979).
A carrier covering non-occupational injuries can intervene under the LHWCA and recover amounts
mistakenly paid out for work-related injuries. Aetna Life Ins. Co. v. Harris, 578 F.2d 52 (3d Cir. 1978);
Del Vacchio v. Sun Shipbuilding & Dry Dock Co., 16 BRBS 190 (1984); Brady v. Hall Bros. Marine
Corp., 13 BRBS 854 (1984).
2.2.17 Occupational Diseases and Section 8(f)
In an occupational disease claim, the Director asserted that the employer was on notice at the time
of the informal conference that the liability of the Special Fund (See Topic 8.7, infra) was at issue because
a claim for death benefits was involved and because it possessed, at that time, medical records pertaining
to decedent's pre-existing medical conditions.
Thus, the Director asserted that the employer should have "reasonably anticipated" that Section 8(f)
would be an issue in the case, and should have protected its rights by filing a claim at that time. Bath Iron
Works Corp. v. Director, OWCP (Bailey), 950 F.2d 56, 25 BRBS 55 (CRT) (1st Cir. 1991), aff'g Bailey
v. Bath Iron Works Corp., 24 BRBS 229, 234-35 (1991).
In Bailey, the Board affirmed the judge's denial of the employer's post-hearing request for Section
8(f) relief under Section 8(f)(3), because the employer's own hospital records reflected decedent's high
blood pressure and annual chest x-rays had been taken since 1966. These x-rays eventually yielded a
diagnosis of asbestosis. The judge concluded that at least by the time of the informal conference on April
4, 1987, the employer and both carriers had sufficient information so that the possible applicability of Section
8(f) could reasonably have been anticipated, yet it did not file a request for such relief. Thus, the request
for Section 8(f) relief is barred by Section 8(f)(3).
Section 8(f) relief may be granted if it is established that the employee's death was due in part to a
manifest pre-existing permanent partial disability. See 33 U.S.C. § 908(f)(1); see also White v. Bath Iron
Works Corp., 812 F.2d 33, 19 BRBS 70 (CRT) (1st Cir. 1987). It is possible for an aggravation to be
considered a new injury. Bath Iron Works Corp. v. Director, U.S. Dept. of Labor, (Jones), 193 F.3d 27
(1st Cir. 1999)(Initial asbestos-related injury was aggravated by further exposure to pulmonary irritants and
was subsequently found to be a "new" injury resulting in an increase in benefits payable by a new carrier and
based upon the average weekly wage at the time of the new injury).
Section 8(f)(3) provides that any request for Section 8(f) relief and a statement of the grounds for
such relief shall be presented to the deputy commissioner prior to the consideration of the claim by the
deputy commissioner. The regulations at 20 C.F.R. § 702.321(b) provide that the employer should file a
claim for Section 8(f) relief as soon as possible after the date of death in a case involving death benefits.
The failure to present such a request prior to consideration by the deputy commissioner is an
absolute defense to the Special Fund's liability, and such defense must be raised and pleaded by the
Director. See 20 C.F.R. § 702.321(b)(3). The failure of an employer to present a timely and fully
documented application for Section 8(f) relief may be excused only where the employer could not have
reasonably anticipated the liability of the Special Fund prior to the issuance of a compensation order.
The Board has also addressed the Section 8(f)(3) issue in Brazeau v. Tacoma Boatbuilding Co., 24
BRBS 128 (1990). In Brazeau, the Board reversed the judge's application of Section 8(f)(3) because,
based on the facts of that case, the employer had insufficient notice at the time of the informal conference
to anticipate reasonably that the claimant's pre-existing condition was permanent. Id. at 131-32.
The Board held that the judge placed the onus of claiming a permanent disability on the employer
as opposed to the claimant, which the Board stated was not required by either Section 8(f)(3) or its
implementing regulations. Id. The Board also held that an employer is not required to monitor a claimant's
condition in order to initiate consideration of the issue of permanency and thus preserve its right to relief
under Section 8(f). Id. However, the Board noted that Section 8(f)(3), as enacted by the 1984
Amendments, was designed to force employers to file for Section 8(f) relief as soon as they become aware
a claim for permanency is involved. See also Currie v. Cooper Stevedoring Co., 23 BRBS 420 (1990).
The Fourth Circuit has held that the manifestation requirement of Section 8(f) is inapplicable where
a decedent suffered from asbestosis and it was a post-retirement disease. Newport News Shipbuilding &
Dry Dock Co. v. Harris, 934 F.2d 548, 24 BRBS 190 (CRT) (4th Cir. 1991), criticized by Sea Tac
Alaska Shipbuilding v. Director, OWCP, 8 F.3d 29 (9th Cir. 1993) (unpublished). Where the employer
showed that there was a pre-existing permanent partial disability which combined with the occupational
disease to cause the decedent's death, the Ninth Circuit found that the employer was entitled to Section
8(f) relief. The Fourth Circuit held in Harris that:
We are convinced that Section 8(f) should be read literally in considering
disability from post-retirement occupational diseases. Only in this way can
Congress' intent in passing the 1984 amendments be carried out. To
establish entitlement to relief from the special fund for a post-retirement
occupational disease, therefore, the employer need only show that there is
an existing permanent partial disability and that a pre-existing disability
combined with the same and contributed to the resulting permanent total
disability. In such cases the manifestation requirement will not be applied.
Harris, 934 F.2d at 553, 24 BRBS at 200 (CRT).
2.2.18 Representative Injuries/Diseases
Adhesive Capsulitis (Tendinitis)
In Carey v. Cargill, Inc., 13 BRBS 516 (1981), the Board affirmed an award of permanent and total
disability benefits for claimant's bilateral shoulder adhesive capsulitis or tendinitis. The Board reversed the
denial of Section 8(f) relief, however, as the employer had satisfied the LHWCA's tri-partite requirements.
See also Director, OWCP v. Cargill, Inc., 689 F.2d 819, 15 BRBS 30 (CRT) (9th Cir. 1982), on reh'g,
en banc, 709 F.2d 616 (9th Cir. 1983) (Section 8(f) relief was denied as the employer did not have
knowledge of the pre-existing condition at the time of initial employment).
Upon review, however, the Ninth Circuit held that a pre-existing disability need not be manifest
at the time of the initial hiring to entitle an employer to Section 8(f) relief, since to deny such relief would
encourage employers not to retain workers who become handicapped during their tenure on the job.
Director, OWCP v. Cargill, Inc., 709 F.2d 616, 16 BRBS 137 (CRT) (en banc), remanded to panel, 718
F.2d 886, 16 BRBS 85 (CRT) (9th Cir. 1983).
Allergy and Nerve Conditions
In Nardella v. Campbell Machine, 525 F.2d 46, 3 BRBS 78 (9th Cir. 1975), the court affirmed
the award of benefits to a claimant whose pre-existing allergy and nerve conditions were aggravated by
exposure to noxious fumes and welding smoke in the work environment.
Arthritis in Right Knee
The claimant's left knee injury and subsequent knee surgery caused the claimant thereafter to favor
his left leg, thereby exacerbating asymptomatic pre-existing arthritis in his right knee. The Board affirmed
the judge's conclusion that the claimant's right knee condition is the natural and unavoidable consequence
of the injury to his left knee and, thus, constitutes a work-related injury. The judge had rejected the
employer's argument that the claimant's right knee condition was not related to the left knee injury as it was
the result of a pre-existing degenerative process. Uglesich v. Stevedoring Servs. of America, 24 BRBS 180
(1991).
Arthritis
Post-traumatic osteoarthritis of the knee, developing as a sequel of a meniscectomy, is the natural
and unavoidable consequence of the work-related injury and subsequent surgery as there was no evidence
that the osteoarthritis was an occupational disease peculiar to the nature of the claimant's work or that the
claimant's work activities between 1970 and 1979 aggravated his pre-existing knee condition and the only
medical evidence on record described the claimant's condition as the natural sequella of the meniscectomy.
The court also held that any benefits payable are based upon the average weekly wage in 1970 and not in
1979, at which time claimant's increased disability became manifest. Director, OWCP v. General Dynamics
Corp. (Morales), 769 F.2d 66, 17 BRBS 130 (CRT) (2d Cir. 1985), rev'g 16 BRBS 293 (1984).
In Owens v. Newport News Shipbuilding & Dry Dock Co., 11 BRBS 409, 412-13 (1979), the
claimant sustained a work-related knee injury in March 1974, but the employer's physician diagnosed the
condition as pre-existing arthritis. Two months later, however, a torn medical meniscus was suspected and
this condition was confirmed by subsequent surgery. See also Fargo v. Campbell Indus., 9 BRBS 766
(1978) (the Board affirmed the award of permanent total disability benefits as the aggravation of a pre-existing arthritic condition by a work-related injury is completely compensable under the LHWCA).
Compare Carlson v. Bethlehem Steel Corp., 8 BRBS 486 (1978) (benefits were denied as the aggravation
of claimant's arthritic condition by a work-related injury caused only a temporary recurrence of the
symptoms rather than a worsening of the underlying condition).
Asbestosis
Benefits were paid to an employee who testified credibly that he was exposed to asbestos as a
shipfitter and whose testimony was not contradicted by the employer and the employee's lung cancer,
resulting from such asbestos exposure, constitutes a work-related occupational disease. Martin v. Kaiser
Co., 24 BRBS 112, 118-19 (1990).
The claimant, who was exposed to asbestos at work and suffered from chest wall pain subsequent
to his lung surgery and who was aided by the presumption that working conditions at the shipyard caused
his asbestosis, was entitled to benefits as his doctors advised him to have surgery for removal of the lung
nodule resulting from his asbestos exposure. Everett v. Newport News Shipbuilding & Dry Dock Co., 23
BRBS 316, 318 (1989). See also Laplante v. General Dynamics Corp., 15 BRBS 83 (1982), aff'g 11
BRBS 117 (ALJ) (1979) (claimant's permanent total disability resulted from the aggravation of his pre-existing heart condition by work-related asbestosis).
Asthma
In Champion v. S&M Traylor Brothers, 690 F.2d 285, 15 BRBS 33 (CRT) (D.C. Cir. 1982),
rev'g 14 BRBS 251 (1981), the claimant's asymptomatic asthmatic condition was aggravated by exposure
to dust and fumes at work and his asthma persisted following his removal from the aggravating conditions,
even though medical evidence indicated it should have ceased. The Board affirmed an award of only
temporary compensation benefits as the claimant was not entitled to permanent disability compensation for
his persisting asthmatic condition because he failed to establish that his employment caused this disability.
The District of Columbia Circuit, however, found that the Board and the judge erred by failing
to find that there was a presumption that the emotional trauma which resulted as the sequel of
claimant's initial disability (i.e., the aggravation of his dormant asthma) was a continuing cause of
claimant's persisting asthma. Accordingly, the court shifted the burden to employer to sever this potential
connection. Champion, 690 F.2d at 295, 15 BRBS at 42 (CRT).
The evidence in Champion consisted of a doctor's testimony that emotional factors, among various
other factors, were capable of causing claimant's asthma, but "acknowledged that he did not know
specifically what was continuing Champion's asthma." Champion, 15 BRBS at 37 (CRT). Another doctor
identified no cause for the persistence of claimant's condition and concluded that it was "coincidental" that
the claimant developed his ongoing asthmatic problem at the same time that he experienced a precipitating
incident at work. The doctor admitted, however, that emotional problems could trigger increased problems
for asthmatics. Id. at 39 (CRT).
Thus, in Champion, the court concluded the Section 20(a) presumption was not rebutted and
remanded the claim "for a calculation of the appropriate award in accordance with this opinion." Id. at 42
(CRT).
"Industrial asthma" was the work-related injury in Janusziewicz v. Sun Shipbuilding & Dry Dock
Co., 13 BRBS 1052 (1981). Benefits were denied, however, as the claimant did not comply with Section
12(a) of the LHWCA and as he was receiving benefits through his employment sickness and accident
insurance benefits policy conditional upon his certification that his absence from work was due to a non-occupational illness.
Breathing Problems
In Graham v. Newport News Shipbuilding & Dry Dock Co., 10 BRBS 387 (1979), the Board
reversed the denial of benefits to a claimant who had developed pulmonary problems when exposed to
welding fumes in the course of his work as a shipyard welder.
In Bennett v. Sun Shipbuilding & Dry Dock Co., 5 BRBS 609 (1977), the Board affirmed an award
of benefits to claimants who were disabled by pneumoconiosis resulting from their work as sandblasters
and their exposure to material and dusty conditions used in doing that work even though they lost no time
from work and their post-injury wages are higher than their average weekly wages since it was undisputed
that the claimants are no longer able to work as sandblasters and cannot work in an atmosphere
of dust or fumes. The Board remanded the claims to the judge, however, to determine the extent of the
claimants' permanent partial disabilities.
Carpal Tunnel Syndrome(CTS)
In Hampton v. Bethlehem Steel Corp., 24 BRBS 141, 144-45 (1990), the Board affirmed an award
of benefits where the claimant, aided by the statutory presumption in Section 20, had established physical
harm, i.e., bilateral carpal tunnel syndrome and left ulnar neuropathy, and working conditions which
could have caused such harm. The employer did not rebut the presumption with substantial evidence which
would sever the causal connection between the injury and the working conditions. Note that Reflex
Sympathetic Dystrophy (RSD) has been misdiagnosed as CTS.
In Sinclair v. United Food & Commercial Workers, 23 BRBS 148, 155-56 (1989), the Board
affirmed the judge's conclusion that the employer does not rebut the statutory presumption by introducing
a physician's opinion that there is a hypothetical probability that the condition (carpal tunnel syndrome) is
not work-related because it frequently occurs in women of the claimant's age without any known cause, as
the record contained the opinions of two physicians that the claimant's condition might be attributable to the
excessive use of her wrist joints as a commercial artist. Accord Alexander v. Ryan-Walsh Stevedoring Co.,
23 BRBS 185 (1990).
Chemical Exposures
In Stevens v. Tacoma Boatbuilding Co., 23 BRBS 191, 193-94 (1990), the claimant alleged that
her husband's exposure to paint additives caused his Jakob-Creutzfeldt disease, a rare type of
degenerative brain disease, resulting in his death the month following the exposure. The judge, while finding
that the employer had rebutted the presumption, resolved the causation issue based on the entire record and
concluded that decedent's exposure to toxic chemicals at work had contributed to the development of his
disease.
On appeal, the Board rejected the employer's argument that the claimant did not demonstrate
exposure to toxic chemicals known to have an impact on Jakob-Creutzfeldt disease or the human immune
system, the Board holding that the employer's evidence was clearly insufficient to prove lack of causation
because neither the neurologists nor the industrial hygienist could state with a reasonable degree of certainty
whether decedent's exposure to the toxic chemicals had any effect on the development or progression of
the disease which caused his death.
It should be further noted that even after substantial evidence is produced to rebut the presumption,
the employer still bears the ultimate burden of persuasion, see Parsons Corp. v. Director, OWCP, 619 F.2d
38, 12 BRBS 234 (9th Cir. 1980), and all doubtful questions are to be resolved in favor of the injured
employee. Avondale Shipyards v. Kennel, 914 F.2d 88 (5th Cir. 1990); Young & Co. v. Shea, 397 F.2d
185 (5th Cir. 1968), cert. denied, 395 U.S. 920 (1969). But Cf. Maher Terminals v. Director, OWCP,
992 F.2d 1277, 27 BRBS 1 (CRT) (3d Cir. 1993), cert. granted sub nom. Director, OWCP v. Greenwich
Colleries, 512 U.S. 267 (1994). (See also Topics 20 and 23.1.4, infra).
In Peterson v. Columbia Marine Lines, 21 BRBS 299 (1988), the Board rejected the employer's
argument that no causation was established. This argument hinged on the fact that the doctor on whom the
judge relied to find causation was unable to identify the specific chemicals which produced the claimant's
chemical hypersensitivity. Instead, the Board found that causation was established because the doctor had
indicated that the claimant's symptoms were due to the cumulative effect of chemical exposures over many
years and that any or all of the chemicals to which he was exposed could have played a part in his
symptomology.
Chemical Hypersensitivity (Agent Orange)--Immunol. Dysfunction
The judge found that the overwhelming weight of the creditable medical evidence caused the
conclusion that the claimant has not been exposed to agent orange nor did she have in the past or at the
present time any of the objective physical symptomatology associated with herbicide or dioxin exposure.
Further, the medical evidence refuted any connection of the claimant's medical, psychological, and
psychiatric conditions with her employment in the Republic of Korea for the American National Red Cross.
Wendler v. American Nat'l Red Cross, BRB No. 93-0423 (May 29, 1996) (unpublished).
Chest Pains at Work
Where a claimant established a physical harm, i.e., chest pains, and working conditions, i.e., moving
large steel drums, which could have caused the harm, the claimant, aided by the Section 20(a)
presumption, has established that his angina and subsequent heart attack constituted a work-related injury
based on work-related aggravation of his underlying pre-existing arteriosclerosis. Obert v. John T. Clark
& Son, 23 BRBS 157, 159-60 (1990).
Cyclothymic Personality
In Callnan v. Morale, Welfare & Recreation, Department of Navy, 32 BRBS 246 (1998), the
Board noted that a cyclothymic personality condition was a "bipolar disorder of at least two years'
duration." In Callnan, the ALJ held, and the Board affirmed, that this condition did not establish the
existence of a "serious, lasting emotional problem".
Depression Caused by Job Stress
In Barnard v. Zapata-Haynie Corp., 23 BRBS 267 (1990), the Board affirmed an award of benefits
to the claimant, an airborne fish spotter, for his work-related depression due to stress induced by flying in
congested air space over navigable waters where his psychiatric impairment resulted in his grounding by a
Federal Aviation Administration medical examiner.
Dermatitis
In Schenk v. Raber-Kief, Inc., 1 BRBS 389, 392 (1975), rev'd sub nom. Director, OWCP v.
Raber-Kief, 558 F.2d 1037 (9th Cir. 1977) (Table), the Board affirmed an award of benefits because there
was substantial evidence in the record to support a finding that the claimant's dermatitis arose out of his
employment.
Drug Toxicity and Disability
Drug toxicity, resulting from a claimant's excessive use of medication prescribed to treat his low back
pain caused by a work-related injury, combined with the lumbar injury to prevent the claimant from safely
performing his former work duties due to his physical and/or emotional condition, entitling claimant to
benefits. Wilson v. Todd Shipyards Corp., 23 BRBS 24 (1989).
Dystonia
Dystonia is characterized by involuntary jerking and twisting motions of the upper extremity and
torso to the right or left. Rochester v. George Washington University, 30 BRBS 233 (1997).
Electric Shock
In Ware v. Dresser Offshore Services, 9 BRBS 160 (1978), the Board affirmed an award of
benefits where the claimant received an electrical shock of 480 volts when he attempted to connect a pump
to an electrical outlet in 1971 and where his total disability began in 1976.
Epoxy Poisoning
The claimant, an industrial painter from 1977 to 1978, developed a sensitivity to epoxy paints that
made it impossible for him to continue with his regular employment. The Board found that painting, not
working in the dock crew, was his regular employment; thus the judge was reversed and the case remanded
for consideration of a permanent disability award in light of the claimant having established his prima facie
case. Flowers v. Norfolk Shipbuilding and Dry Dock Corporation, BRB No. 96-531 (Nov. 19, 1966)
(unpublished).
Esophageal Cancer
Esophageal cancer, resulting from asbestos exposure as a maritime employee, is a work-related
injury. Ponder v. Peter Kiewit Sons' Co., 24 BRBS 46, 51-52 (1990).
Gastrointestinal Condition
In Powell v. Fluor Daniel Corp., (BRB Nos. 97-0774 & 97-0774A)(March 3, 1998)
(Unpublished), the Board held that a report by Claimant's physician affirmatively stating that Claimant's
work-related diarrhea condition is directly responsible for his continuing physical and psychological problems
established the 20(a) presumption.
Grand Mal Seizures
In Carolina Stevedoring Co. v. Homeport Insurance Co.,191 F.3d447 (Table) (Unpublished)(4th
Cir. September 14, 1999), the claimant's disregard for his own safety by working and not taking his
medication fell short of a willful intent to injure or kill.
Gulf War Syndrome
In Pieceynski v. Dyncorp., 31 BRBS 559 (ALJ) (1997), remanded at Pieceynski v. Dyncorp.,
(BRB No. 97-1451)(July 17, 1998)(Unpublished) and subsequently re-issued as a Decision and Order on
Remand Awarding Benefits, at Pieceynski v. Dyncorp., (Case No. 94-LHC-2387)(Unpublished)(1999),
the claimant's alleged health problems included the following: skin rashes over most of his body that leave
permanent scars; bleeding gums and the loss of all his teeth; joint pain; dizziness and loss of balance; memory
loss; poor concentration; chronic diarrhea and stomach problems; chronic headaches; redness of the eyes;
ringing in the ears; chronic fatigue; sexual impotence; chronic cough at night and loss of sleep; chronic muscle
soreness and muscle spasms at night; and diabetes requiring medication. Initially the ALJ found that the
claimant was unable to carry his burden of proving that his health problems where related to the use of anti-nerve gas pills, exposure to Scud missile explosions, or exposure to smoke from burning oil wells.
Pieceynski, 31 BRBS 559 (ALJ) (1997). Unable to affirm the ALJ's denial of benefits on procedural
grounds, the Board remanded the case for further action. Piceynski v. Dyncorp, (BRB No. 97-1451)(July
17, 1998)(Unpublished). Subsequently, the ALJ issued a Decision and Order on Remand Awarding
Benefits. (Case No. 94-LHC-2387)(1999)(Unpublished).
In Lane v. Bell Helicopter Co., (BRB Nos. 99-1007 and 99-1007A)(June 23, 2000)(Unpublished),
the Board upheld the ALJ's finding that the claimant established that his neurocognitive deficits were caused
by his exposure to pesticides, depleted uranium, and oil fire smoke during the gulf war. Further, the Board
held that a causal relationship between claimant's condition and his work exposure was established as a
matter of law.
Halothane-induced Hepatitis
Halothane, an anesthetic widely used during the 80's and 90's, is generally safe. A small minority
of people (1 out of 10,000) suffer an allergic-type reaction, which results in acute hepatitis, from breathing
even small amounts of the drug. Chronic active/aggressive hepatitis is a disease characterized by an on-going injury to the cells of the liver. Generally, the affected person either dies within a month or achieves
a full recovery. The chance for a fatal outcome ranges from 10%-80%. Casey v. Georgetown Medical
Center, 31 BRBS 527 (ALJ) (1997) (Mapes, ALJ).
Hand-arm vibration Syndrome (HAVS)
The claimant did not establish a prima facie case for the disease; however the case is note worthy
for its definition of the syndrome. According to the National Institute for Occupational Safety and Health
(NIOSH), HAVS is a "chronic, progressive disorder with a latency period that may vary from a few months
to several years." Morgan v. Ingalls Shipbuilding, Inc., 29 BRBS 508 (ALJ) (1995). The symptoms include
tingling, numbness, blanching of the fingers, loss of grip strength, reduction in finger dexterity, and sometimes
the disturbance of sleep. It is known by the names "vibration white finger" disease, cumulative trauma
disorder, and Raynaud's phenomenon. The case does a very thorough analysis of the symptoms and
methods used to test for the disease.
Headaches and Dizziness as an Injury
The Fifth Circuit found that substantial evidence existed to support causation for the claim where
the judge accepted the testimony of the claimant's witnesses concerning the relevance of post-traumatic pain,
dizziness, and headaches in concluding that the claimant's pain, dizziness, and headaches were caused by
his accident at work when a pressurized sandblasting hose struck him in the forward right temple, causing
head lacerations and a depressed skull fracture, requiring emergency surgery. Avondale Shipyards v.
Kennel, 914 F.2d 88, 24 BRBS 46 (CRT) (5th Cir. 1990). The judge's decision is reported at 21 BRBS
245 (ALJ) (1988).
In Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988) the court
found that the evidence suggested that the cause of the claimant's severe headaches, dizziness and memory
lapses may have been caused by substance abuse and dietary indiscretions rather than by job related
stress.
[ED. NOTE: The Eleventh Circuit recognized that the Sanders decision was problematic
jurisdictionally and has since abrogated its effect as to the status of the claimant -- not to the injury
claimant suffered. See Atlantic Container Service, Inc. v. Coleman, 904 F.2d 611 (11th Cir. 1990).]
Hearing Loss
(See generally Topic 8.13.)
Heart Attacks
There are numerous cases involving the work-relatedness of heart attacks. For instance, an
employee who sustains a heart attack while performing his normal job duties is presumed to have sustained
a work-related injury in the absence of rebuttal evidence by the employer. Wheatley v. Adler, 407 F.2d
307 (D.C. Cir. 1968); Glens Falls Indem. Co. v. Henderson, 212 F.2d 617 (5th Cir. 1954) (decedent
suffered a heart attack while performing his normal job duty of loading grain).
In Salzano v. American Stevedores, 2 BRBS 178 (1975), aff'd, 538 F.2d 933, 4 BRBS 195 (2d
Cir. 1976), the Board declared as permanently totally disabled a marine carpenter who suffered a heart
attack in the course of his employment, as he could not return to work.
An interesting case is Baldwin v. General Dynamics Corp., 5 BRBS 579, aff'd on recon. 6 BRBS
396 (1977), wherein the employee's fatal heart attack was found to have occurred in the course of his
employment within Section 2(2) as he ran slowly from a parking lot to the pier where he was to board a
Navy launch for the ride out to the submarine tender, although the running was not necessary to his work.
(Note: This claim was brought under the Defense Base Act.)
In Kilsby v. Diamond M Drilling Co., 6 BRBS 114 (1977), aff'd, 577 F.2d 1003, 8 BRBS 658 (5th
Cir. 1978), the employee sustained a work-related heart attack while using a ten-pound sledge hammer to
do his "work in a hot, crowded work space for 2 ½ hours." In Dohrmann v. Navy Resole System Office,
5 BRBS 260 (1976), the employee sustained a work-related fatal heart attack when he helped move a
1,000 pound vending machine.
In Schwartz v. American President Lines, 5 BRBS 352, 354 (1977), a fatal heart attack suffered
in 1975 by an employee who had suffered a work-related heart attack in 1958 and was declared
permanently disabled in 1965 is determined to be work-related, pursuant to the LHWCA's statutory
presumption, as the employer did not rebut said presumption, the Board holding, "while rebuttal evidence
may be hard to develop, the presumption reflects a strong legislative policy favoring awards in arguable
cases."
An employee who sustained a heart attack on the day that he was scheduled to undergo another
myelogram and possible spinal fusion to alleviate back pain caused by a work-related back injury was
entitled to benefits. The Board affirmed the conclusion that the back injury caused claimant enormous pain,
stress, and emotional trauma which resulted in the heart attack. Bruce v. Atlantic Marine, 12 BRBS 65
(1980), aff'd, 661 F.2d 898, 14 BRBS 63 (5th Cir. 1981).
In Bruce, the Board stated:
It is clear that although the role of stress in causing myocardial infractions
is controversial within the medical community, this does not relieve the
administrative law judge of 'his responsibility to select the more reasonable
inference in the light of the evidence as a whole and the common sense of
the situation.' Todd Shipyards Corp. v. Donovan, 300 F.2d 741, 742 (5th
Cir. 1962). Furthermore, where the medical testimony is not conclusive,
lay testimony, and the surrounding factors and circumstances may be taken
into consideration by the fact finder. Southern Stevedoring Co. v. Voris,
218 F.2d 250 (5th Cir. 1955).
Bruce, 12 BRBS at 67-68 (emphasis added).
Although an employer argued that angina attacks are often a natural consequence of a myocardial
infarction, the Board held that such evidence is insufficient to rebut the LHWCA's presumption that angina
attacks suffered by an employee in the course of his employment constituted a work-related injury although
the myocardial infarction was unrelated to his employment. Duty v. Jet America, 4 BRBS 523, 526 (1976).
Moreover, work-related symptoms of chest pain and angina pectoris are compensable under the
LHWCA when such symptoms cause disability, the Board holding that substantial evidence proved that the
claimant suffered chest pains brought on by the stress of his work, regardless of whether the pains were
caused by an underlying heart disease or a psychosomatic disorder. Crum v. General Adjustment Bureau,
12 BRBS 458, 461-62 (1980), aff'd in pertinent part and rev'd on other grounds (i.e., an award of
temporary total was modified to permanent total benefits), 738 F.2d 474, 16 BRBS 115 (CRT) (D.C. Cir.
1984).
Benefits have been denied, however, where the judge did not find a relationship between the
claimant's back injury and his heart attack sustained while he was absent from work and resting as a result
of his back injury, Perelli v. Consolidated Fibers, 9 BRBS 179 (1978), and where the judge found no
relationship between the claimant's cardiac problems and his maritime employment. Bielo v. Navy Resale
Sys., 7 BRBS 1030 (1978).
A fatal heart attack occurring after playing a round of golf in a foreign country was found to be
a work-related injury, pursuant to the "zone of special danger" doctrine in a claim brought under the
LHWCA as extended by the Defense Base Act. Smith v. Board of Trustees, S. Ill. Univ., 8 BRBS 197
(1978).
Hemorrhoids
In Pittman v. Jeffboat, Inc., 18 BRBS 212, 214 (1986), the Board affirmed an award of benefits
where the claimant's maritime work aggravated his hemorrhoids resulting in surgery and a work absence of
two months.
Hopeless/Helpless Syndrome
The claimant was unable to perform a secretarial job as she suffered from "hopeless/helpless
syndrome" - an inability to work because of difficulty with concentration, anxiety and fatigue, and difficulty
in handling stressful situations. Armfield v. Shell Offshore, Inc., 30 BRBS 122 (1996).
Kevlar
Here the claimant worked in the Kevlar shop of the shipyard, cutting sheets of kevlar, which in turn,
created dust. The ALJ found that this dust exposure (along with inhalation of welding smoke, paint fumes
and sandblasting dust) contributed to the claimant's COPD, diagnosed as emphysema. Terry v. Ingalls
Shipbuilding, (J. DiNardi)(ALJ Case No. 1998-LHC-2760)(March 1, 2000). See also, Richmond v.
Ingalls Shipbuilding, Inc., (ALJ Case No. 1999-LHC-1956)(March 1, 2000); Peterson v. Ingalls
Shipbuilding, Inc., (ALJ Case No. 1999-LHC-1954)(March 1, 2000); Herring v. Ingalls Shipbuilding, (ALJ
Case No. 1999-LHC-1898)(March 1, 2000); Clancy v. Ingalls Shipbuilding, Inc., (ALJ Case No. 1999-LHC-1955)(March 1, 2000).
Latent Pre-existing Porphyia
The exposure to metallic gases while working in the fish hold area of a marina as a painter and
welder either aggravated or activated the claimant's latent pre-existing porphyria. Dusenbury v. Kevin Hill's
Marine Services, BRB No. 96-0517 (Nov. 21, 1996) (unpublished). The symptoms included: difficulty
focusing eyes, confusion, balance problems, loss of sexual desire, back pains, problems with depth
perception, numbness in the hands and feet, a lump in the arms and throat, a stinging sensation on the nose,
tingling in the throat, difficulty urinating, skin discoloration, seizures, and personality changes. These
symptoms may not be determinative as the judge found the claimant to lack credibility. There is a blood
enzyme test; however, it is not generally accepted as diagnostic in the medical community as its testing
methods are not standardized or been subjected to peer review.
Lead Poisoning
The claimant's work as a lead bonder resulted in chronic lead poisoning with symptoms of
headaches, nausea, and intestinal problems. These symptoms constituted a work-related injury entitling the
claimant to benefits. Decosta v. General Dynamics Corp., 13 BRBS 469 (1981).
Leukemia, Chronic Granulocytic
(Ionizing Radiation/Atomic Weapons Testing)
Employer successfully rebutted the Section 20(a) presumption that the claimant's chronic
granulocytic leukemia was caused by his ionized radiation exposure which occurred while he was working
for a Defense Base Act contractor involved in atomic weapons testing in the Pacific Proving Grounds in the
1950's. Kaneshiro v. Holmes & Narver, Inc., 31 BRBS 196 (ALJ) (1997), Decision and Order on
Remand-Denying Benefits at 31 BRBS 196 (ALJ).
Leukemia Resulting From Benzene Exposure
An employee who had been regularly exposed to benzene when pumping gas and using industrial
solvents for automobile repairs at a service station subsequently developed leukemia and died. The Board,
in affirming an award of benefits on remand, held that the employer failed to produce substantial evidence
to rebut the presumption of causation as the employer's physician based his report on incorrect assumptions
and, even if the employee's benzene exposure was less than the average, such was insufficient rebuttal
proof since the effect of benzene exposure varies from individual to individual. Compton v. Pennsylvania
Ave. Gulf Serv. Center, 14 BRBS 472 (1981). See also 9 BRBS 625 (1979) (Board's prior Decision and
Order).
Lepomis/Biotransformation
Noting that competent medical opinions and well-reasoned scientific opinions, such as the "scientific
method," can be used to refute a claimant's theories of causal relationship, the judge held that there was no
acceptable medical evidence to support a finding of relationship between lepomis (fatty tissue build up) and
bulk phosphate fertilizers. Claimants were exposed to various chemical compounds and substances,
including diamanium phosphate, grain-leaded triple super phosphate, diesel oil and fumes, motor oil, lube
oil, grease, mineral spirits, ammonium phosphate, kerosene, petroleum distillate, and liquid insect mixer.
Blue v. CF Indus., Case No. 89-LHC-2564 (May 1, 1992) (unpublished).
Lumbar Stenosis
The Board has held that the gradual work-related aggravation of the claimant's lumbar stenosis was
an accidental injury, rather than an occupational disease, since walking and standing are not peculiar to the
claimant's employment and since there was no evidence that others in employment develop lumbar stenosis.
Steed v. Container Stevedoring Co., 25 BRBS 210, 214-15 (1991).
Lung Cancer
Where the decedent suffered from lung cancer and where the uncontradicted testimony established
that the decedent was exposed to asbestos at work, the claimant was entitled to the Section 20(a)
presumption, and to an award of benefits; since neither opinion from two physicians completely ruled out
asbestos exposure as a contributing factor in decedent's cancer, decedent was entitled to benefits as the
employer had not introduced specific and comprehensive medical evidence rebutting the presumption.
Peterson v. General Dynamics Corp., 25 BRBS 71, 78 (1991).
Lyme Disease
Claimant, a Stars and Stripes journalist covered under the Non-appropriated Fund Instrumentalities
Act, 5 U.S.C. 8171 et seq., suffered early stage Lyme disease while on assignment camping in the Black
Forrest. Zeigler v. Department of the Army, (BRB No. 99-0122)(Oct. 7, 1999)(Unpublished).
Malignant Pleural Mesothelioma
Malignant pleural mesothelioma, a cancerous tumor in the lining of the lung resulting from asbestos
exposure at the shipyard, constitutes a work-related injury. Shaller v. Cramp Shipbuilding & Dry Dock Co.,
23 BRBS 140 (1989); Harris v. Newport News Shipbuilding & Dry Dock Co., 23 BRBS 114 (1989);
Green v. Newport News Shipbuilding & Dry Dock Co., 13 BRBS 562 (1981). As the tumor grows, there
is an increasing chance for the production of fluid that will collect in the lungs, causing a marked decrease
in the claimant's ability to draw a normal breath. One procedure that can be used to drain the fluid from the
lung is known as thoracentesis.
In Schmulian v. Marinship Corporation, (BRB Nos. 96-1093 and 96-1093A)(April 28,
1997)(Unpublished), the claimant was suffering from an asbestos induced mesothelioma. BRB Nos. 96-1093 and 96-1093A (Apr. 28, 1997) (unpublished). The only treatment that could be employed was to
drain the fluid from the lungs, which was done several times until it became impossible due to the tumor's
encasement of the entire lung. At that point, the claimant shot himself, and was rushed to a hospital. The
claimant had previously initiated a "no code" order so no life-saving operations were performed.
The employer tried to argue that there was no diagnosed mental illness so Section 3(c) would bar the death
benefits claim due to the claimant's willful intent to kill himself. The Board affirmed the judge's finding that
the claim for death benefits was not barred under Section 3(c) as the claimant's willful intent to kill himself
was not the sole cause of the death. The holding was based on two alternate grounds: 1) the suicide would
not have occurred but for the effects of the work injury; and 2) that the effect of the almost daily
emergency room procedures to drain the lung, combined with the immanent prospect of death produced
an irresistible urge that the claimant could not resist. The result is that the claimant lacked the requisite willful
intent to commit suicide within the meaning of Section 3(c).
Multiple Sclerosis
Benefits were denied where the judge, crediting the employer's physician, found that the claimant's
work-related fall did not cause, aggravate, or exacerbate the claimant's underlying multiple sclerosis. Grimes
v. George Hyman Constr. Co., 8 BRBS 483 (1978).
Obesity
Obesity has not been recognized as a pre-existing disability. See Brogden v. Newport News
Shipbuilding & Dry Dock Co., 80-LHC-2098 (August 17, 1981). See also Fleetwood v. Newport News
Shipbuiding & Dry Dock Co., 80-LHC-564 (August 7, 1980) (held that claimant's breathing difficulties
caused by obesity, and not the obesity in and of itself, was a permanent partial disability which satisfied the
requirements of Section 8(f)). In C & P Telephone v. Director, OWCP, 564 F.2d 503 (D.C. Cir. 1977),
the District of Columbia Circuit concentrated on the claimant's prior back injuries, not on the fact that they
may have at least been partially due to her obesity.
[ED. NOTE: Being overweight is not necessarily recognized as a physical impairment under the
Americans with Disabilities Act (hereinafter "ADA"), 42 U.S.C. 12101 et. seq. If the condition is
within a "normal range," weight is simply regarded as a physical characteristic like eye color, left-handedness, or muscle tone. However, it is a case-by-case call. Obesity that is out of the normal
range, and caused by a physical disorder might be considered an impairment. (These remarks were
noted in the September 30, 1993 Washington Post, page 4A, and attributed to Peggy Mastroianni,
director of the ADA policy division of the Equal Employment Opportunity Commission.)]
Opening a Sliding Door
The effort of a warehouse manager in opening a sliding door, which effort caused sudden pain and
aggravated his pre-existing back condition, was a new injury within the meaning of Section 2(2), although
that effort was the last of a series of aggravations which caused his permanent total disability. Moreover,
the carrier which insured at the time of the effort is solely liable for the compensation and medical benefits
awarded, even though it did not insure the employer during the entire series of aggravations. Morgan v.
Marine Corps Exch., 10 BRBS 442, 445-46 (1979).
Pleural Plaques
Pleural plaques, resulting from asbestos exposure, constitute a work-related injury as this condition
established that something had gone wrong within claimant's bodily frame. Such plaques, even in the
absence of pulmonary impairment, entitle claimant to medical benefits under the LHWCA. Romeike v.
Kaiser Shipyards, 22 BRBS 57, 59-60 (1989).
Pleural thickening and plaques, also resulting from asbestos exposure, may also constitute a work-related injury as establishing physical harm to the bodily frame. Crawford v. Director, OWCP, 932 F.2d
152, 24 BRBS 123, 128 (CRT) (2d Cir. 1991). The employee must establish exposure to asbestos as the
etiology of his physical harm and, in the absence of such exposure, benefits may be denied. Brown v. Pacific
Dry Dock, 22 BRBS 284, 286 (1989).
Psychological Problems
A claimant who sustained a work-related back injury, requiring two surgical procedures, however
without significant objective findings, and who then was unable to work because of the unrelenting
complaints of pain was awarded total disability benefits for the resultant conversion hysteria and his inability
to return to work as the judge concluded the claimant's disability was work-related although wholly
psychological in nature. Dygert v. Manufacturer's Packaging Co., 10 BRBS 1036, 1043-44 (1979).
A crane operator's psychological impairment manifested by chest pains, resulting from the stress
of having to work overtime, is an accidental injury within Section 2(2), even though there was no
physical or external cause. Moss v. Norfolk Shipbuilding & Dry Dock Corp., 10 BRBS 428, 431
(1979). Accord Urban Land Inst. v. Garrell, 346 F. Supp. 699 (D.C. 1972) (even though the case involves
a psychological injury, the court found no rational basis for distinguishing this type of injury from the
physiological injuries of a heart attack in Wheatley v. Adler, 407 F.2d 302 (D.C. Cir. 1968), or a cerebral
vascular accident with intracerebral hemorrhage in Mitchell v. Woodworth, 449 F.2d 1097 (D.C. Cir.
1971).
Recently there has been a growth in stress-related claims. Case law does not support the
proposition that, in order to establish a prima facie case, a claimant must seek psychological treatment or
manifest stress-related medical symptoms at the time that stressful employment events occurred. The
compensability of a psychological injury caused or aggravated by work-related cumulative stress is premised
on the occurrence over time of stressful work-related events, culminating in the manifestation of the
symptomatology which represents the psychological injury. See generally Sewell v. Noncommissioned
Officers' Open Mess, McChord Air Force Base, 32 BRBS 127, at 129 (1998)(en banc)(McGrannery,
J.dissenting), aff'd on recon. en banc at 32 BRBS 134 (1997)(Brown and McGranery, J.J., dissenting);
Konno v. Young Brothers, Ltd., 28 BRBS 57, 61 (1994); Marino v.Navy Exchange, 20 BRBS 166, at
168, (BRB No. 88-1720(Dec. 12, 1990)(Unpublished). See also American Nat'l Red Cross v. Hagen,
327 F.2d 559 (7th Cir. 1967). One must ask whether the cumulative stress of a claimant's general working
conditions could have caused or aggravated his psychological injury. The relevant inquiry involves not
merely the work-related event, but claimant's perceptions of those events and experience of stress resulting
from them. See Sewell; Konno; Furthermore, focus on whether employer's actions were justified is not
germane to this inquiry. See Sewell, 32 BRBS at 136, 138 n.5.
A distinction must be drawn between legitimate personnel actions and work-related cumulative
stress. Marino v. Navy Exchange, 20 BRBS 166 (1988). A legitimate personnel action, such as a
reduction-in-force, is not a working condition that can form the basis for a compensable psychological injury.
Marino at 168. However, psychological injury due to cumulative stress from supervising a number of
locations, insufficient personnel to perform the job, working more than the required hours, and performing
the duties of subordinates, all can form the basis for a compensable injury. Id.
In cases involving allegations of the existence of stressful working conditions, irrespective of any
legitimate personnel actions, the Board has held that a claimant's minimal burden in establishing a prima
facie case requires simply that he demonstrate the existence of working conditions which could have caused
or aggravated his psychological injury. See Sewell, 32 BRBS at 136; Konno, 28 BRBS at 61. A
demonstration by a claimant of stress in his daily work environment, including day-to-day interactions with
his supervisor, may satisfy the "working conditions" prong of the claimant's prima facie case. See Sewell,
32 BRBS at 136. A claimant is not required to show unusually stressful conditions in order to establish his
prima facie case. See, e.g., Wheately v. Adler, 407 F.2d 307 (D.C. Cir. 1968). Rather, even where the
stress may seem relatively mild, the claimant may recover if an injury results. See Sewell, 32 BRBS at 137;
Konno, 28 BRBS at 61.
Moreover, in determining whether a claimant's prima facie case is established, the relevant
consideration involves claimant's own perceptions of the work events or interactions alleged to be stressful
relationship with a supervisor, the analysis must focus on the occurrence of events resulting in stress to the
claimant, not whether the supervisor's actions were justified. See Sewell, 32 BRBS at 136, 137 n. 5. A
focus on whether a supervisor's actions were justified would require the supervisor to be at fault in order
for the claim to be compensable, a requirement that would be inconsistent with the strict liability for work-related injuries on which workers' compensation rest. See Sewell, 32 BRBS at 137 n.5.
ED. NOTE: In a recent non-LHWCA case, a federal judge, denying a motion for summary
judgement, ruled that a hypertensive production supervisor at a Pennsylvania box-making factory
who had to avoid stressful social situations "at all costs" can sue his employer for firing him in
violation of the Americans with Disabilities Act and the state employment bias law. Garvey v.
Jefferson Smurfit Corp., (Case No. 00-1527)(E.D. Pa. October 24, 2000)(Unpublished)(jury could
decide if worker was limited in the major life activities of socializing and engaging in interpersonal
relations).]
A claimant's psychological disorder, superimposed upon a work-related knee injury, resulted in a
permanent and total disability condition in Love v. W. M. Schlosser Co., 9 BRBS 749, 752-53 (1978);
Kilson v. Sun Shipbuilding & Dry Dock Co., 2 BRBS 172, 175 (1975) (the fact that claimant's chronic
back pain may have a psychological basis does not bar his entitlement to compensation under the LHWCA).
Benefits, however, were denied a claimant who had recovered from his work-related back and knee
injuries but who had not returned to work apparently because of "a functional overlay developing in
Claimant's attitude about March of 1971 for secondary gain factors." Wilkinson v. I.T.O. Corp. of
Baltimore, 10 BRBS 414 (1979). Compare Sams v. D.C. Transit Sys., 9 BRBS 741 (1978).
The testimony of two physicians provided evidentiary support for a claimant's assertion that her
continuing symptomatology was the result of a psychological reaction to the physical reaction she
experienced due to her exposure to chemicals at work, and such symptomatology prevents her from
returning to her usual job, thereby entitling her to an award of permanent partial disability. Sinclair v. United
Food & Commercial Workers, 23 BRBS 148, 150-54 (1989).
A claimant's mental limitations (i.e., her borderline retardation) combined with her work-related knee
injury to render her virtually unemployable, one vocational counselor opining that "a non-competitive
sheltered workshop situation may be the best placement for her." Todd Pac. Shipyards Corp. v. Director,
OWCP (Mayes), 913 F.2d 1426, 24 BRBS 25, 32 (CRT) (9th Cir. 1990).
The Second Circuit has noted that "severe depression is not the blues. It is a mental health illness;
and health professionals, in particular psychiatrists, not lawyers or judges, are the experts on it." Pietrunti
v. Director, OWCP, 119 F.3d 1035, 1044, 31 BRBS 84, 91 (CRT) (2d Cir. 1997), citing Wilder v.
Chater, 64 F.3d 335, 337 (7th Cir. 1995).
In Moncrief v. Sinclair Control Corp., BRB No. 97-1285 (June 12, 1998) (Unpublished), the
Board held that a claimant who received an electrical shock while working aboard a vessel, and thereafter
allegedly developed psychological problems including a phobia of electricity, was denied benefits when the
employer provided the testimony of a neurologist who specialized in electrical injuries to opine that the lack
of any exit or entry wounds and the variable results of the claimant's psychological tests convinced him that
the claimant was probably malingering as to his electrical shock injury.
Pulmonary Conditions
If a claimant develops a pulmonary problem, or his working environment aggravates a preexisting
condition, then he is entitled to disability. The fact that a claimant's symptoms may be alleviated by a
departure from the workplace does not support a finding that the work-related aspect of his condition has
resolved. Crum, 738 F.2d at 480, 16 BRBS at 125 (CRT) (1984). Temporary recurring symptoms may
nonetheless be permanent within the meaning of the LHWCA if they continue and appear to be of a lasting
or indefinite duration, as opposed to a condition which is subject to a very gradual healing period. Id., 738
F.2d at 480, 16 BRBS at 124 (CRT), citing Watson v. Gulf Stevedore Corp., 400 F.2d 649, 654 (5th Cir.
1968), cert. denied, 394 U.S. 976 (1969); Care v. Washington Metropolitan Area Transit Authority, 21
BRBS 248, 250 (1988). It should also be noted that the underlying condition need not have been caused
or permanently worsened by claimant's workplace exposure. Crum, 738 F.2d at 480, 16 BRBS at 125
(CRT).
Recreational Activities
An employee who aggravated his work-related knee condition (i.e., a torn medical meniscus) while
playing a round of golf, requiring knee surgery the following week sustained a compensable injury. Ward
v. Newport News Shipbuilding & Dry Dock Co., 8 BRBS 353, 357 (1978).
In making its holding in Ward, the Board noted that a subsequent injury is compensable if it is the
direct and natural result of a compensable primary injury and the employer is responsible for the entire
disability resulting from the combination of the primary injury and the aggravation. Compare Grumbley v.
Eastern Associated Terminals Co., 9 BRBS 650 (1979) (claimant's fall from his roof while attempting to
repair a television antenna constituted an intervening cause between his work-related knee injury and any
disability resulting from his subsequent fall).
Reiter's Syndrome
Employer could not overcome the presumption that the claimant's illness was caused by exposure
to bacteria at work. Smith v. Noncommissioned Officers' Open Mess, McConnell Air Force Base, Kansas,
(ALJ Case No. 91-LHC-904)(Unpublished).
Sarcoidosis
Champion v. S&M Traylor Brothers, 690 F.2d 285, 15 BRBS 33 (CRT) (D.C. Cir. 1982),
involved a claim for benefits for sarcoidosis (i.e., a chronic disease of unknown etiology that is
characterized by the formation of nodules resembling true tubercles, especially in the lymph nodes, lungs,
bones, and skin). (See "Asthma" supra for a discussion of Champion.).
Severe Depression
The Second Circuit has noted that "severed depression is not the blues. It is a mental health illness;
and health professionals, in particular psychiatrists, not lawyers or judges, are the experts on it." Pietrunti
v. Director, OWCP, 119 F.3d 1035, 1044, 31 BRBS 84, 91 (CRT) (2d Cir. 1997), citing Wilder v.
Chater, 64 F.3d 335, 337 (7th Cir. 1995).
Sexual Potency
In Ramirez v. Lane Construction Co., 9 BRBS 645 (1979), the Board held that a claimant who was
awarded benefits for his work-related injury is not entitled to monetary damages "for his wife's loss of
consortium" and "for (his) pain and suffering". It must be remembered that where an injury falls within the
coverage of the LHWCA, the claimant's sole remedy against the employer is the compensation as provided
for in the LHWCA.
Moreover, the LHWCA, unlike tort law, is a system which only compensates injuries that affect an
employee's ability to earn wages. Since the claimant's sexual potency does not affect his ability to earn
wages, its loss cannot be compensated under the LHWCA. Similarly, a claimant's pain and suffering, no
matter how severe, may be compensated only to the extent it interferes with his ability to earn wages. Pain
and suffering without economic effect cannot, in and of itself, be the basis of an award under the LHWCA.
Ramirez, 9 BRBS at 646.
Silicosis
In Carver v. Ingalls Shipbuilding, 24 BRBS 243 (1991), compensation benefits were not awarded
because the record contained no permanent impairment rating on which an award could be based. The
claimant would be entitled to an award of medical benefits, however, for his work-related silicosis. See also
Ponder v. Peter Kiewit Sons' Co., 24 BRBS 46 (1990).
Stress
[See "Psychological Problems," infra, this subsection.]
Suicide
The employee's suicide was the result of one continuing injury, i.e., depression over his declining
business, and thus he has sustained a work-related injury under the LHWCA as extended by the District
of Columbia Workmen's Compensation Act. Director, OWCP v. Cooper Assocs., 607 F.2d 1385, 10
BRBS 1058 (D.C. Cir. 1979), aff'g in pertinent and rev'g on other grounds 7 BRBS 853 (1978) (the fact
that the employee's death resulted from an irresistible suicidal impulse wrought by intolerable
employment stress removes this claim from the ambit of Section 3(b) which bars claims based on injury
resulting from willful intent to kill oneself).
The psychiatrist's opinion that decedent's work injury and its effects prevented him from forming a
rational and willful intent to commit suicide, and the doctor's conclusion that decedent died as a direct
consequence of his industrial work was not convincingly rebutted by the employer. Thus, the Board affirmed
the judge's holding that the claim was not barred by Section 3(c). Maddon v. Western Asbestos Co., 23
BRBS 55, 60-61 (1989).
An electrician's mental derangement, resulting from an electrical shock in 1962, and resulting
in his suicide twelve years later constitutes a work-related injury. Brannon v. Potomac Elec. Power Co.,
6 BRBS 527, 530 (1977).
For a case where the employer unsuccessfully attempted to argue the applicability of Section 3(b)
(willful intent to kill oneself not covered) when the claimant suffered from fatal malignant mesothelioma, had
initiated a "no code" order, and fatally shot himself, see "Malignant Pleural Mesothelioma," supra this sub-topic.
Thrombophlebitis
The claimant "was bitten by a brown recluse spider during the course of his employment with the
employer. The claimant suffered from thrombophlebitis of the right leg as a result of this injury" and he was
paid temporary total disability benefits while he was out of work. Thereafter, upon his return to work, one
year later, another work-related injury affected that condition and he was hospitalized for chest pains, right
leg thrombophlebitis, and pulmonary embolism. The claimant was unable to return to work and he remained
totally disabled until his death almost three years later. The Board affirmed an award of benefits but
reversed the denial of Section 8(f) relief as the employer satisfied the requirements for such relief. Stephens
v. I.T.O. Corp. of Baltimore, 8 BRBS 406 (1978).
Thoracic Outlet Syndrome (TOS) and related Reflex Sympathetic Dystrophy (RSD)
In Breese v. The Department of Army/NAF/CPO, (BRB No. 97-425)(Oct. 27, 1997)
(Unpublished), the claimant developed TOS as a result of strained muscle contractions due to RSD. TOS
is a pinching of the nerve in the collarbone. RSD is an abnormality of the sympathetic and parasympathetic
nervous systems that may be mis-diagnosed as carpel tunnel.
Vascular Headaches
In Campbell v. Norfolk Shipbuilding & Dry Dock Co., 1995 WL 848036 (ALJ) (May 5, 1995),
the ALJ accepted a physician's opinion that the claimant's vascular headaches were triggered by claimant's
work injury and satisfy claimant's prima facie burden. The ALJ recognized that although the prevailing
medical theory is that vascular headaches may have a genetic basis, the physician testified that individuals
with a genetic predisposition to this condition can begin to experience the severe headaches only after an
occurrence such as illness, medicine or trauma, particularly, trauma to the neck. Id.. at 13.
Varicose Veins
The Board has held that work-related aggravation of a claimant's varicose veins constituted an
accidental work-related injury, notwithstanding that he knew that his condition could be made worse by
his continued employment, the Board holding that he had no deliberate intention to harm himself and
that it was reasonable to presume that he would try to work because of financial necessity.
The claimant was not entitled to permanent benefits, however, since the symptoms subsided once
the claimant received medical treatment therefor, having no lasting effect on the natural progression of his
pre-existing disease. Gardner v. Bath Iron Works Corp., 11 BRBS 556 (1979), aff'd sub nom. Gardner
v. Director, OWCP, 640 F.2d 1385, 13 BRBS 101 (1st Cir. 1981).
2.3 2(3) EMPLOYEE
[ED. NOTE: For a definition of "employer-employee relationship" see Topic 75, infra.]
Section 2(3) of the LHWCA defines "employee" as follows:
The term "employee" means any person engaged in
maritime employment, including any longshoreman or other person
engaged in longshoring operations, and any harbor-worker including
a ship repairman, shipbuilder, and ship-breaker, but such term does
not include--
(A) individuals employed exclusively to perform office
clerical, secretarial, security, or data processing work;
(B) individuals employed by a club, camp, recreational
operation, restaurant, museum, or retail outlet;
(C) individuals employed by a marina and who are not
engaged in construction, replacement, or expansion of such marina
(except for routine maintenance);
(D) individuals who (i) are employed by suppliers,
transporters, or vendors, (ii) are temporarily doing business on the
premises of an employer described in paragraph (4), and (iii) are
not engaged in work normally performed by employees of that
employer under the Act;
(E) aquaculture workers;
(F) individuals employed to build, repair, or dismantle any
recreational vessel under sixty-five feet in length;
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or unload or
repair any small vessel under eighteen tons net;
if individuals described in clauses (A) through (F) are subject to
coverage under a State workers' compensation law.
33 U.S.C. § 902(3).
(For a complete discussion of "employee" see Topic 1, supra).
There is no specific threshold test for determining whether the work is too "episodic or momentary"
for it to be considered as arising within the course and scope of his employment. Lewis v. Sunnen Crane
Services, Inc., 31 BRBS 34 (Apr. 15, 1997). Work that is part of an employee's regular job assignments
is not "episodic". McGoey v. Chiquita Brands Internat'l., 30 BRBS 237 (1997). The First Circuit has
held that an activity must be "discretionary or extraordinary" to be considered "episodic." Levins v.
Benefits Review Board, 724 F.2d 4,8 (1st Cir. 1984). In Lewis, the Board held that so long as "that
claimant did spend at least some of his time performing undisputedly maritime activities and these duties were
a regular portion of the overall tasks to which claimant could be, and actually was, assigned, the
administrative law judge" should find that the activity was not "episodic." Lewis, 31 BRBS 34.
2.4 2(4) EMPLOYER
[ED. NOTE: For a definition of "employer-employee relationship" see Topic 75, infra]
Section 2(4) of the LHWCA defines "employer" as follows:
The term "employer" means an employer any of whose
employees are employed in maritime employment, in whole or in
part, upon the navigable waters on the United States (including any
adjoining pier, wharf, dry dock, terminal, building way, marine
railway, or other adjoining area customarily used by an employer in
loading, unloading, repairing, or building a vessel).
33 U.S.C. § 902(4).
(See also Topic 1.9, supra.)
2.5 SECTION 2(5) CARRIER
The LHWCA defines "carrier" as follows:
The term "carrier" means any person or fund authorized
under Section 32 to insure this Act and includes self-insurers.
33 U.S.C. § 902(5).
By providing compensation insurance under the LHWCA, an insurance carrier becomes bound for
the full obligation of the employer. 33 U.S.C. § 935; 20 C.F.R. § 703.115. Crawford v. Equitable
Shipyards, 11 BRBS 646 (1979), aff'd per curiam sub nom. Employers Nat'l Ins. Co. v. Equitable
Shipyards, 640 F.2d 383 (5th Cir. 1981).
The Board has consistently held that an insurer may intervene in a proceeding under the LHWCA
to recover from the employer amounts mistakenly paid to a claimant. Janusziewicz v. Sun Shipbuilding &
Dry Dock Co., 677 F.2d 286 (3d Cir. 1982); Aetna Life Ins. Co. v. Harris, 578 F.2d 52 (3d Cir. 1978);
MacDonald v. Trailer Marine Transp. Corp., 18 BRBS 259, 263 (1986); Pilkington v. Sun Shipbuilding
& Dry Dock Co., 14 BRBS 119 (1981). The employer is responsible for benefits awarded to the claimant
even though the employer's insurance policy under the LHWCA has lapsed. Ricker v. Bath Iron Works
Corp., 24 BRBS 201 (1991).
The carrier at the time of a traumatic injury is liable for the employer's obligations resulting from that
injury. With multiple traumatic injuries, designation of the responsible carrier is based upon the same analysis
used in determining the responsible employer. The judge must determine whether the claimant's disability
resulted from the natural progression of his first injury or if the claimant's subsequent injury aggravated,
accelerated or combined with the earlier injury to result in the claimant's disability. Adam v. Nicholson
Terminal & Dry Dock Co., 14 BRBS 735 (1981); Crawford, 11 BRBS 646. See Kelaita v. Director,
OWCP, 799 F.2d 1308 (9th Cir. 1986); Delaware River Stevedores, Inc., v. Director, OWCP, ___ F.3d
___ (No 01-1709) (3rd Cir. Jan. 30, 2002).
In Pilipovich v. CPS Staff Leasing, Inc., 31 BRBS 169 (1997), the Board held that the ALJ "has
the power to hear and resolve insurance issues which are necessary to the resolution of a claim under the
Act." The Board concluded that the ALJ erred in finding two employers liable for the claimant's attorney's
fees where "CPS has no longshore workers itself, but merely provides workers to longshore employers,
[and Carrier] was on the risk not for CPS itself, but for ... other employers to whom CPS loaned
employees." The Board held that "[b]y virtue of the contractual agreements, [Carrier] is solely liable to
claimant as the insurance carrier, as its policy insures [the longshore employer] for injuries covered under
the Longshore Act and as it waived its right to seek reimbursement from [the longshore employer]." But
see, Temporary Employment Services v. Trinity Marine Group, Inc., 261 F.3d 456 (5th Cir. 2001) (ALJ
did not have jurisdiction to determine the merits of certain contractual rights and liabilities arising from an
indemnification agreement between the borrowing employer and the loaning employer; did ALJ have
jurisdiction to address a waiver of subrogation by the loaning employer's carrier.).
In Weber v. S.C. Loveland Co. (WeberIII), ___ BRBS ___ (BRB Nos. 00-838, 00-838A and
00-838B) (Jan. 30 2002), the Board distinguished Temporary Employment Services. The issue in Weber
was which of two, if any insurers was on the risk for longshore benefits at the time of the claimant's injury
and is liable for those benefits. In Weber, the claimant was injured in Jamaica and the Board found that the
claimant was "covered under the LHWCA." There were two insurance policies in question.. One covered
injuries within the United States and included Longshore coverage. The other covered injuries outside the
U.S. and did not include Longshore coverage. The Board noted that in Temporary Employment Services,
the Fifth Circuit held that contractual disputes between and among insurance carriers and employers which
do not involve the claimant's entitlement to benefits or which party is responsible for paying those benefits,
are beyond the scope of authority of the ALJ and the Board. However, the Board found that Weber "does
not involve indemnification agreements among employers and carriers, but presents a traditional issue of
which of employers' carriers is liable." Thus the Board found that the ALJ has the authority to address the
issue.
(See also Topic 70, infra).
2.6 SECTION 2(6) SECRETARY
The term "Secretary" means the Secretary of Labor.
33 U.S.C. § 902(6).
In Lopes v. New Bedford Stevedoring Corp., 12 BRBS 170, 172 (1979), the case was remanded
to the deputy commissioner for issuance of an appropriate order in keeping with the Secretary's regulations
and accepted procedures.
2.7 SECTION 2(7) DEPUTY COMMISSIONER
The term "Deputy Commissioner" means the Deputy
Commissioner having jurisdiction in respect of an injury or death.
33 U.S.C. § 902(7).
20 C.F.R. § 702.105--entitled Use of the title District Director in place of Deputy
Commissioner--provides:
Wherever the statute refers to Deputy Commissioner, these
regulations have substituted the term District Director. The substitution
is purely an administrative one and in no way effects (sic) the authority of
or the powers granted and responsibilities imposed by the statute on that
position.
[55 FR 28606, July 12, 1990]
[ED. NOTE: Within this text the terms "Deputy Commissioner" and "District Director" are used
interchangeably. Generally, "Deputy Commissioner" has been used in dealing with cases arising
prior to July 1990--when the Board and courts commonly used the term. "District Director" is used
in reference to more recent jurisprudence and current tense. For a case confusing the terminology,
see Staftex Staffing v. Director, OWCP , 217 F.3d 365 (5th Cir. July 18, 2000, re-issued at 237 F.3d
409 (5th Cir. July 25, 2000), subsequently re-issued at 237 F.3d 409 (5th Cir. March 26, 2001)]
[ED. NOTE: In 1972 the LHWCA was amended to transfer all adjudicatory powers to OALJ. 33
U.S.C. 919(d). In Director, OWCP v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122,
115 S.Ct. 1278 (1995)(eight person majority, one concurrence), the Court spoke in terms of the
Director as having a "duty of uniform administration and enforcement" as opposed to the
adjudicatory process that initially takes place at OALJ. See also, Barthelemy v. J. Ray McDermott,
537 F.2d 168 (5th Cir. 1976). Still more recently, in Ingalls Shipbuilding, Inc. v. Director, OWCP,
(Yates), 519 U.S. 248, (1997), the Court again referred to OALJ as the beginning of the adjudicatory
process.
For discussions on the powers of the district director and the powers of ALJs, see Topics 19.3
"Adjudicatory Powers" and 19.4 "Formal Hearings Comply with APA."]
2.8 SECTION 2(8) STATE
Section 2(8) of the LHWCA provides as follows:
The term "State" includes a Territory and the District of
Columbia.
33 U.S.C. § 902(8).
In Tyndzik v. University of Guam, 27 BRBS 57 (1993), the Board held that Guam is covered under
Section 3(a) of the LHWCA. Due to the ambiguous usage of the word "territory" in legislation and
judicial decisions, it was not readily clear whether Guam was a covered location under Section 3(a).
The Board distinguished the circuit courts opinions applying the term "territory." In Garcia v.
Friesecke, 597 F.2d 284 (1st Cir.), cert. denied, 444 U.S. 940 (1979), the LHWCA was held not to apply
to Puerto Rico as the LHWCA was displaced by the local Puerto Rican compensation scheme. This holding
was due to the purpose of the 1927 LHWCA, which was to provide coverage to those injured on navigable
waters where the states could not legislate. See Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1st Cir.
1956).
In Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935 (3d Cir. 1990), cert. denied, 498 U.S.
1067 (1991), the Third Circuit held that the Virgin Islands were seen in the same light as a state, that the
Organic Act was meant to apply to territories, and that federal maritime law does not preempt application
of any state workers' compensation laws and that the two may apply concurrently and therefore the
LHWCA applied to the Virgin Islands.
The Board determined that Guam's situation was more similar to that of the Virgin Islands than to
Puerto Rico. Both statutes allow for local legislation not inconsistent with United States law, while Puerto
Rico was invested with the powers of self-government unlike the other territories.
The Board also dismissed the judge's reliance on the Report of the Commission on the Application
of Federal Laws to Guam, H.R. Doc. No. 212, 82 Cong., 1st Sess. 1 (1951), that stated that the LHWCA
does not apply to Guam. The Board reasoned that since the Report did not give a basis for this ruling, and
since the circuits were split on the application of the Report, in addition to the fact that the 1972
Amendments allowed for concurrent state and federal jurisdiction to compensation acts, the Report was not
applicable. Tyndzik, 27 BRBS at 64-65.
One judge has found that the LHWCA applied to an accident occurring on Saipan, located in the
Norther Mariana Islands. Uddin v. Saipan Stevedore Co., 27 BRBS 76 (ALJ) (1993) (Order Denying
Dismissal).
After World War II, governance of the Micronesian Islands was handed to the United States by the
Trusteeship Agreement with the United Nations. On January 9, 1978, the Covenant to Establish a
Commonwealth of the Northern Mariana Islands became effective and the Islands became self-governing
and in 1986, the Trusteeship Agreement was formally dissolved. The Commonwealth of the Northern
Mariana Islands (CNMI), however, maintained close relations with the United States. As a result of this
history, CNMI is a sui generis political entity where some portions of the U.S. Constitution and federal
statutes apply, but not all.
Section 502(a)(2) of 90 STAT. 268 (Public Law 94-241-Mar. 24, 1976) states:
[T]he following laws of the United States in existence on the effective date
of this Section and subsequent amendments to such laws will apply to the
Northern Mariana Islands, except as otherwise provided in this
Covenant...(2) those laws not described in paragraph (1) which are
applicable to Guam and which are of general application to the several
States as they are applicable to the Several States.
The judge in Uddin noted that the statute does not mention the LHWCA as not applying to the
CNMI, and the LHWCA was in existence as of the effective date of Section 502.
The LHWCA provides for workers' compensation to be paid for injury or death of an employee
resulting from an injury occurring upon the navigable waters of the United States. 33 U.S.C. § 903(a). The
term "United States" when used in a geographical sense means the several States and Territories and the
District of Columbia, including the territorial waters thereof. 33 U.S.C. § 902(10).
In applying Section 502(a)(2), the determination of whether an act applies to the CNMI is done by
ascertaining whether the LHWCA applies to Guam. The Northern Mariana Islands Commission on Federal
Laws to the Congress of the United States of America determined that the LHWCA applied to Guam and
therefore, under Section 502(a)(2) of the Covenant, was applicable to CNMI. The Second Interim Report
of the Northern Mariana Islands Commission on Federal Laws to the Congress of the United State, p.52
(August 1985) (Documentary Supplement).
2.9 SECTION 2(9) UNITED STATES
Section 2(9) of the LHWCA provides as follows:
The term "United States" when used in a geographical sense
means the several States and Territories and the District of
Columbia, including the territorial waters thereof.
33 U.S.C. § 902(9).
Although Congress may have intended to confine the LHWCA to the territorial waters of the United
States, the jurisprudence, to some degree, has extended coverage beyond the geographical boundaries of
the states, territories, District of Columbia, and the navigable waters of the United States. (See Topics 1.5.2
and 2.8.0, supra).
In fact, in its recent pronouncement, the Board has included Jamaica within the "navigable waters
of the United States." Weber v. S.C.Loveland Co. (Weber I), 28 BRBS 321 (1994), reheard at Weber
v. S.C.Loveland Co. (Weber II), 35 BRBS 75 (2001) (Board adheres to its holding that claimant's injury
occurred on a covered situs, as being the law of the case.); Weber v. S.C. Loveland Co. (Weber III), ___
BRBS ___ (2002) (Board leaves prior jurisdiction determination unchanged.). In Weber, the claimant,
working for employer as a field superintendent, injured his back in the port of Kingston, Jamaica, when he
was walking on the catwalk on employer's barge, and slipped and fell.
In its initial decision, the Board discussed cases which extend the LHWCA's coverage to include
injuries occurring on the high seas. See Cove Tankers Corp. v. United Ship Repair, 683 F.2d 38, 14 BRBS
916 (2d Cir. 1982), and Reynolds v. Ingalls Shipbuilding Div., Litton Systems, Inc., 788 F.2d 264, 19
BRBS 10 (CRT)(5th Cir. 1986), cert. denied, 479 U.S. 885 (1986). It specifically addressed the decision
in Kollias v. D & G Marine Maintenance, 29 F.3d 67, 28 BRBS 70 (CRT)(2d Cir. 1994), cert. denied,
513 U.S. 1146 (1995), wherein the United States Court of Appeals for the Second Circuit held that the
term "navigable waters" includes the high seas without qualification.
The Board, also in its initial decision, looked to other federal admiralty statutes "for guidance," such
as the Jones Act and the Death on the High Seas Act (DOSHA). The Board opined that cases decided
under those statutes established a trend in admiralty law toward extending coverage to persons injured on
foreign territorial waters, as the term "high seas" as used in DOSHA was not meant to exclude foreign
territorial waters, see Howard v. Crystal Cruises, Inc., 1992 AMC 1645, 1648 (1992), aff'd 41 F.3d 527
(9th Cir. 1994), cert. denied, 514 U.S. 1084 (1995); Mancuso v. Kimex, Inc., 484 F.Supp. 453, 455 (S.D.
Fla. 1980). The Board noted that the Jones Act is applicable to a seaman injured or killed in foreign
territorial waters or in a foreign port, see Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 528 (5th Cir.
1979)(en banc), cert.denied, 446 U.S. 956, reh'g denied, 448 U.S. 912 (1980); McClure v. United States
Lines Co., 386 F.2d 197 (4th Cir. 1966).
The Board, in the initial decision, held that in view of developing case law, as well as the policy
concern for providing uniform coverage and protection for American workers working in foreign waters
when all contacts except the site of injury are within the United States.
On its second hearing in this matter, the Board found that its review of intervening law corroborates
its previous conclusion. Referencing In re Air Crash Off Long Island, New York, On July 17, 1996, 209
F.3d 200 (2d Cir. 2000), the Board noted a "recognized trend" in federal court decisions towards extending
coverage of DOSHA to individuals injured on foreign territorial waters. In this second decision the Board
addressed the defenses reliance on several federal decisions. It noted that in its initial decision, it stated that
the courts in Christianson v. Western Pacific Packing Co., 24 F.Supp. 437 (W.D. Wash. 1938)(the court
held that the LHWCA did not apply to an employee injured while servicing canning machinery on a barge
in British Columbia waters in Canada), and Panama Agencies Co. v. Franco, 111 F.2d 263 (5th Cir.
1940)(the LHWCA did not apply to a longshore employee injured while loading a steamship in the Panama
Canal Zone), summarily found no coverage without providing "any reason" for their ruling, and therefore,
these cases were not definitive of the coverage issue.
The Board further recalled that it had noted that Maharamas v. American Export Isbrandtsen Lines,
Inc., 475 F. 2d 165 (2d Cir. 1973) (coverage denied to a claimant injured while working as a hairdresser
on a Mediterranean cruise), was inapposite as the claimant was not doing longshore work, and in Garcia
v. Friesecke, 597 F.2d 284 (1st Cir. 1979), cert. denied, 444 U.S. 940 (1979), the denial of coverage
related to an injury occurring in Puerto Rican territorial waters which gave rise to a conflict of law issue and
dealt with special circumstances of Puerto Rico's status as a territory of the United States.
[ED. NOTE: It is submitted, that the Board's holding that the port of Kingston, Jamaica is within
the "navigable waters of the United States," would not pass a statutory strict construction test as
applied by the United States Supreme Court. It should further be noted that the Jones Act (a
seaman's death and survival negligence action), unlike the LHWCA, did not specify a geographical
jurisdiction. DOSHA, (solely a death action, but covering the death of any person caused by
"wrongful act, neglect, or default occurring on the high seas.") contained a geographical
jurisdictional requirement limiting its coverage to the high seas beyond a marine league. In fact, In
re Air Crash Off Long Island, New York, On July 17, 1996, 209 F.3d 200 (2d Cir. 2000), which the
Board has cited, states, "We take no position on what courts should do when faced with the difficult
question of whether to apply DOSHA in foreign territorial waters, where plaintiffs might otherwise
be left with only foreign remedies in foreign courts." Air Crash Off Long Island, 209 F.3d at 212.]
In their revered "hornbook, " "The Law of Admiralty," authors Gilmore and Black have noted that
in originally enacting the LHWCA, "Congress aimed not at the broadest possible coverage (up to the full
limits of its own constitutional powers) but at the narrowest possible coverage (to provide a federal
compensation system only for those maritime workers who according to the Supreme Court, could not be
covered by state compensation systems. The draftsmen of the 1927 LHWCA therefore wrote into the
statute limitations on its territorial coverage designed to achieve that end." Section 6-48, Gilmore and Black,
"The Law of Admiralty," (2nd Ed. 1975). Least one not become confused, the references Gilmore and
Black have made to American law being applied to harbor workers, repairman "and the like" on board ships
wherever they may be, (see Section 6-63, pp. 476-477; Nye v. A/SD/S Svendborg, 358 F.Supp.145
(D.C.N.Y., 1973)(shipowner negligent for not better assisting obese pump repairman in boarding vessel))
are made in the context of third party claims by these workers against the ships themselves, i.e., Section
905(b) type actions. One must also note that state workers compensation laws do provide for American
workers in foreign locales.
[ED NOTE: Query: If the LHWCA "may" be applied in foreign territorial waters, when the foreign
territory has an applicable law, one would need to develop a "choice of law" standard somewhat
akin to that used by federal courts in dealings with maritime personal injury matters in the non-workers compensation context. It is submitted that in enacting and amending the LHWCA, Congress
never contemplated such a path.]
2.10 SECTION 2(10) "DISABILITY"
Section 2(10) of the LHWCA defines "disability" as follows:
"Disability" means incapacity because of injury to earn the
wages which the employee was receiving at the time of injury in the
same or any other employment; but such term shall mean permanent
impairment, determined (to the extent covered thereby) under the
guides to the evaluation of permanent impairment promulgated and
modified from time to time by the American Medical Association, in
the case of an individual whose claim is described in section 10(d)(2).
33 U.S.C. § 902(10).
The definition of "disability" given in Section 2(10) has been given a considerable gloss following
the Supreme Court's holding in Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121 (1997).
The Court expanded the traditional understanding of "disability" to include both current economic harm and
potential economic harm as a potential result of a present injury and market opportunities in the
future. Id.
2.10.1 Claimant's Vocational Background vs. Legal Qualification to Work
The 1984 Amendments to the LHWCA specifically overruled Aduddell v. Owens-Corning
Fiberglass, 16 BRBS 131 (1984), and Redick v. Bethlehem Steel Corp., 16 BRBS 155 (1984), in which
cases the Board held that benefits under the LHWCA cannot be paid to those who retire from the work
force as they have no loss of wage-earning capacity.
Through the enactment of the post-retirement injury provisions of the 1984 Amendments to the
LHWCA, Congress intended to expand the category of eligible claimants to include persons suffering from
an occupational disease who have voluntarily retired from the work force. This result was necessary due
to the Board's holding in Aduddell v. Owens-Corning Fiberglass, 16 BRBS 131 (1984), that a claimant who
had voluntarily retired for reasons "wholly unrelated to his asbestosis" and who had no intention of returning
to the work force prior to the manifestation of his asbestosis, was not entitled to benefits because he had no
wage loss as a result of his injury.
Congress explicitly stated its intent to overrule Aduddell through enactment of the amendments.
H.R. REP. NO. 1027, 98th Cong. 2d Sess. 30, reprinted in 1984 U.S. CODE CONG. & AD. NEWS
2771, 2780. Thus, Congress enacted the amendments to provide benefits to a class of claimants excluded
by the Board's decision in Aduddell, i.e., those who retired for reasons unrelated to their work injury.
Consistent with this purpose, a claimant's retirement is termed "voluntary" based on whether his
disability due to his disease caused the termination of his employment, rather than on economic or other
considerations of claimant or employer. Harmon v. Sea-Land Services, Inc., 31 BRBS 45 (1997); Morin
v. Bath Iron Works Corp., 28 BRBS 205, 208 (1994); Coughlin v. Bethlehem Steel Corp., 20 BRBS 193
(1988).
Moreover, a claimant may be compensated under the voluntary retiree provisions when a non-work-related disability causes cessation of employment. See Woods v. Bethlehem Steel Corp., 17 BRBS 243
(1985). As a person who has left his employment due to his work-related injury, an involuntary retiree is
simply disabled and is entitled to receive compensation for his disability from the date he left his employment.
Id.; MacDonald v. Bethlehem Steel Corp., 18 BRBS 181 (1986). Under Section 8(c)(23), retirees may
receive an ongoing award based on a percentage of their rating of permanent medical impairment. See also
33 U.S.C. § 902(10).
When "a claimant's retirement is due, at least in part, to his occupational disease, the claimant is not
a voluntary retiree and the post-injury provisions at Sections 2(10), 8(c)(23), and 10(d)(2) do not apply."
Hansen v. Container Stevedoring Co., 31 BRBS 155 (1997).
Thus, the 1984 Amendments apply a new set of rules in occupational disease cases where the
"injury" occurs after claimant voluntarily retires, i.e., voluntarily leaves the work force for reasons unrelated
to his occupational disability. 33 U.S.C. §§ 902(1); 908(c)(23); 910(D)(2) (Supp. V 1987).
In such cases, disability is defined under Section 2(10) not in terms of loss of earning capacity, but
rather in terms of the degree of physical impairment as determined under the American Medical Association
Guides to the Evaluation of Permanent Impairment, and the claimant is limited to a permanent partial
disability award pursuant to Section 8(c)(23), based solely upon the degree of his physical impairment. See
Stone v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 1 (1987).
In Hoey v. Owens-Corning Fiberglas Corp., 23 BRBS 71, 74-75 (1989), the Board noted that
"claimant would be classified as a 'voluntary retiree' because he left the workforce for reasons unrelated to
the injury of which he now claims benefits, his stomach cancer, an occupational disease which became
manifest only after his retirement. See MacDonald v. Bethlehem Steel Corp., 18 BRBS 181 (1986)."
These post-retirement injury provisions, therefore, were enacted to provide relief for those claimants
who otherwise would not be entitled to receive any compensation because their occupational disease
became manifest after retirement. They were not intended to provide additional relief to claimants who have
already received compensation under the LHWCA for permanent total disability.
The Board has consistently held that a claimant who is already receiving permanent total disability
cannot seek additional benefits, under Section 8(c)(23), based on medical impairment after he has become
totally disabled due to another cause and has been compensated for this permanent total disability under the
LHWCA.
Thus, the Board affirmed the judge's conclusion that the claimant is not entitled to benefits on the
stomach cancer claim because he had previously settled a prior claim for asbestosis for $50,000.00,
according to the terms of which the parties acknowledged that he was permanently and totally disabled.
The Board held, however, that the claimant was entitled to an award of medical benefits for his stomach
cancer. Hoey, 23 BRBS at 75.
A claimant was properly found to be a voluntary retiree where, prior to leaving the employer, the
claimant, alleging no disability, filed for Social Security Retirement Benefits and his employee's severance
papers indicated he was voluntarily retiring. Johnson v. Ingalls Shipbuilding Div., Litton Sys., 22 BRBS 160,
162 (1989).
Moreover, the claimant sought no other employment and the medical evidence demonstrated no pre-retirement breathing impairment. Johnson, 22 BRBS 160; Smith v. Ingalls Shipbuilding Div., Litton Sys.,
22 BRBS 46, 49 (1989) (claimant was a voluntary retiree because he was in good health in 1970 when he
requested a layoff, he was able to perform his job until that time, he had a good attendance record, he had
no serious health problems between 1970 and 1981, at which time asbestosis was suspected, he did not
look for other work and made no attempt to regain his former job at the shipyard).
In an early case interpreting the 1984 Amendments as affecting retirees and occupational diseases,
the Board held that decedent, a retiree whose occupational disease (i.e., lung cancer resulting from exposure
to asbestos), was a voluntary retiree as her occupational disease became manifest more than one year after
her retirement and benefits are payable to her surviving husband based upon the national average weekly
wage as of the time of her injury (i.e., the date of manifestation), pursuant to Section 10(d)(2). Arganbright
v. Marinship Corp., 18 BRBS 281, 283 (1986). See Dunn v. Todd Shipyards Corp., 18 BRBS 125
(1986).
Pursuant to the 1984 Amendments, the date of last exposure to the injurious stimuli is no
longer relevant to the average weekly wage. The judge must determine the date of manifestation of the
claimant's disease, pursuant to Section 10(i) and the date of retirement, pursuant to Section 10(d)(2).
Coughlin v. Bethlehem Steel Corp., 20 BRBS 193 (1988).
Note that if pulmonary disability preceded the date of manifestation and caused the retirement, onset
of disability is, in effect, considered the date of injury and the average weekly wage should reflect earnings
prior to the onset of disability, rather than the date of manifestation. Dunn, 18 BRBS at 128.
Where the claimant retired in order to receive Social Security Benefits and his union pension, the
Board affirmed the judge's finding that the claimant left the work force for reasons unrelated to his asbestosis
and that he was thus a voluntary retiree, pursuant to Section 8(c)(23). Frawley v. Savannah Shipyard Co.,
22 BRBS 328, 330 (1989).
Moreover, compensation benefits were properly denied since there was no medical opinion
evaluating the extent of the claimant's impairment due to asbestosis. As the claimant established a work-related injury, however, the claimant is entitled to an award of medical benefits and the attorney entitled to
a fee. Frawley, 22 BRBS at 331.
Where a claimant left his full-time job and thereupon took a part-time job, as a warehouseman for
his son's company, as a means to supplement his retirement benefits without affecting his entitlement to those
benefits, the Board held that such a claimant is a voluntary retiree and, pursuant to Sections 8(c)(23),
10(d)(2)(B), and 10(i), benefits for his work-related asbestosis are based upon the National Average
Weekly Wage at the time of his injury. Jones v. U.S. Steel Corp., 22 BRBS 229, 232 (1989).
Where a claimant is a voluntary retiree and where his occupational disease becomes manifest within
one year of retirement, the claimant's average weekly wage is based on his average annual earnings during
the 52-week period preceding retirement, pursuant to Section 10(d)(2)(A). Coughlin, 20 BRBS at 197.
A claimant's retirement was termed "involuntary" based on a determination that he left the work force
because of work-related pulmonary problems and the fact that neither the claimant nor the employer caused
the termination of employment. MacDonald v. Bethlehem Steel Corp., 18 BRBS 181 (1986). See also
20 C.F.R. § 702.601(c) (retirement is a "voluntary" withdrawal from the work force with "no realistic
expectation that such person will return to the work force").
The LHWCA's definition of the word "disability"-- incapacity because of injury to earn the wages
which the employee was receiving at the time of injury in the same or any other employment -- clearly
requires a causal connection between the worker's physical injury and his inability to find suitable
employment.
The judge, in determining whether the worker is disabled and whether suitable alternate employment
is available, may look beyond the worker's injury and inquire whether someone having both the injury and
a similar background -- the worker's age, education, and work experience, for example -- would be unable
to find work in the relevant geographical area. Crum v. General Adjustment Bureau, 738 F.2d 474, 479,
16 BRBS 115 (CRT) (D.C. Cir. 1984), aff'g and rev'g in part 16 BRBS 101 (1983).
The Board, however, has declined to treat a worker's undocumented alien status as one of the
elements of an employee's background that must be taken into account when determining whether the
claimant is disabled because of his injury, holding that while "his status as an undocumented worker might
bar him from obtaining a job on the open market, this consideration, unlike age, education and work history,
has no bearing on claimant's ability to work." Rivera v. United Masonry, 24 BRBS 78, 82 (1990), aff'd,
948 F.2d 774, 25 BRBS 51 (CRT) (D.C. Cir. 1991) (emphasis added).
In contrast, while a pre-injury criminal record may be relevant in determining if jobs are realistically
available to a claimant, Piunti v. ITO Corp. of Baltimore, 23 BRBS 367, 370 (1990), the claimant's status
as an undocumented worker will prevent him from obtaining any job legally. Rivera, 24 BRBS at 82. The
Board reasoned that if the undocumented claimant's thesis is accepted, it would enable him to obtain a
benefit unavailable to other injured workers who are of the same age with the same educational and
vocational backgrounds, and who have similar work restrictions. Id.
Under the LHWCA, as amended in 1984, when an employee retires and his occupational disease
becomes manifest subsequent to his retirement, his recovery is limited to an award for permanent partial
disability based on the extent of his medical impairment as measured pursuant to the American Medical
Association Guides to the Evaluation of Permanent Impairment, and is not based on economic factors. See
33 U.S.C. §§ 920(10), 908(c)(23), and 910(d)(1) and (2) (Supp. V 1987); Ponder v. Peter Kiewit Sons'
Co., 24 BRBS 46 (1990). See generally Bath Iron Works Corp. v. Director, OWCP (Brown), 942 F.2d
811, 25 BRBS 30 (CRT) (1st Cir. 1991), aff'd, 506 U.S. 153 (1993). The judge must rely on medical
evidence in determining the extent of the impairment. See, e.g., Donnell v. Bath Iron Works Corp., 22
BRBS 136 (1989).
In Larrabee v. Bath Iron Works Corp., 25 BRBS 185 (1991), the employer argued that the judge
erred in making a finding on the extent of the claimant's respiratory impairment, in that this finding was not
supported by the medical evidence of record and that the judge impermissibly substituted his judgment for
the statutory criteria in determining the extent of the claimant's respiratory impairment.
The Board, in affirming the judge's conclusions, noted that the only medical evidence relevant to the
degree of the claimant's medical impairment was the opinion of one physician that the claimant's degree of
respiratory impairment would place him in Class 4, 50 to 100 percent severe impairment of the whole
person, under the American Medical Association Guides to the Evaluation of Permanent Impairment (3d
ed. 1988), based on a ventilatory test value below 40 percent of predicted normal.
The doctor stated he believed that the claimant's ventilatory capacity was 35 percent of normal,
which meant that he lost 65 percent of his respiratory capabilities. The doctor explained that this loss was
equivalent to losing more than one lung. In his opinion, the claimant was "down to his minimum," and a loss
of a third of his residual ventilatory capacity, which would constitute a very small reduction, would place him
in a life-threatening situation.
The judge, based upon the entire record and his analysis of the extent and effect of claimant's
decreased pulmonary function, found claimant to be 90 percent permanently impaired, a rating permitted
by Donnell.
The facts of Larrabee show that the physician was less than pleased with the numerical ratings
promulgated by the American Medical Association for the various percentages and classes of pulmonary
impairment and, despite prodding by the claimant's attorney, limited his rating to the class of impairment but
would not specify a particular rating.
Thus, the Board held that the claimant's disability is a factual determination which is appropriately
determined by the judge based on the medical evidence of record. See, e.g., Donnell, 22 BRBS 136. Thus,
the judge relied on the full opinion of the doctor in determining the specific degree of impairment, 90 percent,
a rating which was within the range identified by the doctor under the AMA Guides.
Unemployment Compensation Vis-A-Vis Disability
A claimant's application for unemployment benefits and receipt of them does not override substantial
evidence that he is permanently totally disabled and is entitled to benefits under the LHWCA. Fargo v.
Campbell Indus., 9 BRBS 766, 774 (1978).
2.10.2 Onset of Disability
Where the decedent was permanently partially disabled due to mesothelioma resulting from exposure
to asbestos, and where a chest x-ray showed a pleural effusion in December 1982, the Board held that
benefits should begin on December 6, 1982, and not five weeks later, the date selected by the judge as the
date of manifestation, the claim having been filed in March 1983, and benefits for decedent should be based
upon the National Average Weekly Wage as of December 1982, as the decedent had voluntarily retired
in September 1981 in good health. Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS
78, 82-84 (1989). Moreover, benefits to the surviving widow should be based upon the National Average
Weekly Wage as of the decedent's death, May 10, 1984, as the claim for death benefits arises at that time.
Id.
Compare Barlow v. Western Asbestos Co., 20 BRBS 179 (1988), where the Board affirmed an
award of benefits commencing on the date on which the claimant's asbestosis was diagnosed, after two of
the three physicians did not rate such disability and the other physician thereafter apparently rated such
impairment at fifty (50) percent of the whole person, a rating the judge accepted, the Board noting, "there
are no earlier diagnoses or findings of permanent pulmonary impairment to support an earlier onset date."
See also Woods v. Bethlehem Steel Corp., 17 BRBS 243 (1985) (where claimant's asbestos-related
disease was compounded by a pre-existing totally disabling heart condition).
X-ray evidence of a pleural thickening alone is not a basis for a permanent impairment rating under
the AMA Guides. Thus, benefits for permanent partial disability, pursuant to Section 8(c)(23), begin at the
time the physician issues an impairment rating for the claimant's disability of his lungs. Ponder v. Peter
Kiewit Sons' Co., 24 BRBS 46, 51 (1990).
Where the claimant's disability was due to a combination of asbestos-related lung disease and
esophageal cancer and where the AMA Guides provide a means for assessing the combined impairment
of the whole person when the patient has more than one impairment, the Board held that overlapping and
concurrent awards are not permitted and that the decedent was entitled to only one award representing his
overall disability from his conditions. Ponder, 24 BRBS at 53.
See also Barlow v. Western Asbestos Co., 20 BRBS 179 (1988) (where three physicians agreed
that claimant had a severe respiratory impairment but only one proposed a specific degree of impairment,
the judge properly accepted the doctor's rating and awarded benefits for a fifty (50) percent pulmonary
impairment for his asbestosis).
2.11 SECTION 2(11) DEATH
Section 2(11) of the LHWCA provides:
"Death" as a basis for a right to compensation means only
a death resulting from an injury.
33 U.S.C. § 902(11).
In Bailey v. Bath Iron Works Corp., 24 BRBS 229 (1991), aff'd sub nom. Bath Iron Works Corp.
v. Director, OWCP, 950 F.2d 56, 25 BRBS 55 (CRT) (1st Cir. 1991), the judge awarded death benefits
to the claimant as the surviving widow of a maritime employee who was exposed to asbestos at the
employer's shipyard until approximately January 1984, at which time he took an early retirement.
The decedent's date of injury was August 9, 1985 and benefits for the decedent, a voluntary retiree,
were based on the national average weekly as of that date. As the decedent died on August 9, 1986, in part
due to work-related asbestosis, the widow's death benefits were based on the national average weekly wage
as of the date of death. Bailey, 24 BRBS at 232-33. Accord Griffin v. Bath Iron Works Corp., 25 BRBS
26 (1991) (the decedent died of work-related asbestosis on October 28, 1986, and the principal issue was
claimant's status as surviving widow).
[ED. NOTE: For more on death claims, see Topic 9, "Compensation for Death."]
2.12 SECTION 2(12) COMPENSATION
Section 2(12) of the LHWCA provides:
"Compensation" means the money allowance payable to an
employee or to his dependents as provided for in this LHWCA, and
includes funeral benefits provided therein.
33 U.S.C. § 902(12).
The Board has held that payments made to the claimant under the employees' benefit plan
were not advance compensation payments, within the meaning of Section 14(j) of the LHWCA, since these
payments were based on the length of the employee's service, were paid whenever the employee was absent
from work for a work-related or non-work-related sickness or accident, and were not in lieu of worker's
compensation. Jones v. Chesapeake & Potomac Tel. Co., 11 BRBS 7, 9 (1979), aff'd mem., 615 F.2d
1368 (D.C. Cir. 1980).
[ED. NOTE: Section 14 (j) [Pre-1984 Amendment section 14(k)] allows the employer a credit for
its prior payments of compensation against any compensation subsequently found due. The purpose
of Section 14(j) is to reimburse an employer for the amount of its advance payments, where these
payments were too generous, for however long it takes, out of unpaid compensation found to be due.
For more on Section 14(j), see Topic 14.5.]
Moreover, payments which are sick leave benefits earned by the employee on the basis of
seniority and good continuous service are not compensation. Van Dyke v. Newport News Shipbuilding &
Dry Dock Co., 8 BRBS 388, 396 (1978); Luker v. Ingalls Shipbuilding, Inc., 3 BRBS 321 (1976).
In Johnson v. Newport News Shipbuilding & Dry Dock Co., 25 BRBS 340 (1992), however, the
Board held that an employee who was prevented from earning a bonus by a work-related injury could not
have that bonus considered "compensation" and included in her average weekly wage "because a contingent
right to a bonus to be paid in the future is, like a fringe benefit, too speculative to be considered as part of
the money rate at which the employee is being compensated as of the time of the injury under Section
2(13)." Id. at 343-44.
In Lazarus v. Chevron USA, Inc., 958 F.2d 1297, 25 BRBS 145 (CRT) (5th Cir. 1992), the Fifth
Circuit held that medical benefits are included in the term "compensation" for the purposes of enforcement
proceedings under Section 18(a). As medical benefits constitute monies payable to an employee or his
dependents, the court noted, "We must construe this definition (of compensation) liberally in favor of injured
workers," Holcomb v. Robert W. Kirk & Associates, 655 F.2d 589, 592 (5th Cir. 1982), cert. denied,
459 U.S. 1170 (1983), and the LHWCA "must be liberally construed in conformance with its purpose, and
in a way which avoids harsh and incongruous results." Director, OWCP v. Perini N. River Assocs.
(Churchill), 459 U.S. 297, 15 BRBS 62 (CRT) (1983). (The Board, however, has held that interest is not
added to the award of medical expenses. Pirozzi v. Todd Shipyards Corp., 21 BRBS 294 (1988). But
cf. Hunt v. Director, OWCP, 999 F.2d 419, 27 BRBS 84 (CRT) (9th Cir. 1993).
(See Topic 33, infra, for a discussion as to whether or not medical benefits are compensation for purposes
of Section 33.)
Maximum Compensation and Section 6
In Puccetti v. Ceres Gulf, 24 BRBS 25, 29-31 (1990), the Board rejected as contrary to the
language of Section 6(c), the Director's thesis that claimants receiving temporary total disability at the
maximum level, pursuant to Section 6(b)(1), are entitled to the new maximum each year, up to 66 2/3
percent of their actual average weekly wage. Compare Marko v. Morris Boney Co., 23 BRBS 353, 360-62 (1990) (the plain language of the LHWCA provides that a claimant receiving permanent total disability
benefits at the maximum rate during a period is to receive the benefits of recalculation of the maximum rate
for that period--thus, the claimant is entitled to the benefit of the new maximum each year).
2.13 SECTION 2(13) WAGES
Section 2(13) of the LHWCA provides that:
The term "wages" means the money rate at which the service
rendered by an employee is compensated by an employer under the
contract of hiring in force at the time of the injury, including the
reasonable value of any advantage which is received from the
employer and included for purposes of any withholding of tax under
subtitle c of the Internal Revenue Code of 1954 (relating to
employment taxes). The term "wages" does not include fringe
benefits, including (but not limited to) employer payments for or
contributions to a retirement, pension, health and welfare, life
insurance, training, social security or other employee or dependent
benefit plan for the employee's or dependent's benefit, or any other
employee's dependent entitlement.
33 U.S.C. § 902(13).
The term "wages" does not include fringe benefits, such as employer contributions to union,
retraining, retirement, pension, health and welfare, or other benefit plans because they are not similar to
board, rent, lodging, or housing. Lopez v. Southern Stevedores, 23 BRBS 295 (1990); Newport News
Shipbuilding and Dry Dock Company v. Justice, 127 F.3d 1099 (4th Cir. 1997) (wages do not include
fringe benefits such as training or educational stipends).
In Wausau Insurance Co. v. Director, OWCP, 114 F.3d 120 (9th Cir. 1997) the Ninth Circuit
overruled the Board's determination that housing and meals would be included in a claimant's wages
provided that they were not found to be fringe benefits. This overruled the Board's holding in Guthrie v.
Holmes & Narver, 30 BRBS 48, 50 (1996), that housing and food will be considered to be part of the
claimant's wages if they are deemed to be given in part, or in place, of wages. The Ninth Circuit found that
the LHWCA "defers to the IRS criteria for deciding whether non-monetary compensation counts as wages.
If it is not money, or an 'advantage' subject to withholding, it is not included." Wausau Ins. Co., 114 F.3d
at 122; Quinones v. H.B. Zachery, Inc., 32 BRBS 6 (1998). The Board interpreted the language in Wausau
as requiring that: "the phrase 'including the reasonable value of any advantage' becomes a mandatory
limitation on the inclusion of non-monetary compensation in the definition of wages." Quinones, 32 BRBS
at 9-10. The Board was clear in Quinones that it is not going to follow the Wausau holding outside the
Ninth Circuit, as the holding construes the term "including" too narrowly. Thus, the holding in Guthrie is
affirmed outside of the Ninth Circuit based on the rational of the holding in Quinones. Id. (the Board used
the same rational and came to the same result in both cases without stating that it was based on the holding
in Guthrie).
Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624, 15 BRBS 155 (CRT)
(1983), was codified by Congress in the 1984 Amendments to the LHWCA.
The loss of available overtime pay is included in average weekly wage determinations if the claimant
can establish that overtime pay was lost because of the injury. Brown v. Newport News Shipbuilding &
Dry Dock Co., 23 BRBS 110, 113 (1989). See also, Sears v. Newport News Shipbuilding & Dry Dock
Co., 19 BRBS 235 (1987) (where employer presents evidence of unavailability or claimant's lack of
utilization of overtime).
Wage guarantee payments are readily calculable, made directly to the employee, subject to tax
withholding, and paid for services rendered in employment; they are therefore wages within the applicable
statutory definition. McMennamy v. Young & Co., 21 BRBS 351, 353 (1988). Tax loss benefits from a
farm operation are not wages. Newby v. Newport News Shipbuilding & Dry Dock Co., 20 BRBS 155,
157 (1988).
Container royalty payments, like wage guarantee payments, are part of a claimant's income to
be included in average weekly wage calculations. Container royalty payments are made directly to the
employee on the basis of seniority and career hours worked. See generally Lopez v. Southern Stevedores,
23 BRBS 295, 300-01 (1990); McMennamy v. Young & Co., 21 BRBS 351 (1988); Denton v Northrop
Corp., 21 BRBS 37 (1988). Container royalties do not count as wages when they are received based on
the time disabled rather than the time worked. Branch v. Ceres Corp, 29 BRBS 53 (1995), aff'd mem. sub
nom. Ceres Corp. v. Branch, 96 F.3d 1438, 30 BRBS 74, 78 (CRT) (4th Cir. 1996); Eagle Marine
Services v. Director, OWCP, 115 F.3d 735, 737 (9th Cir. 1997). The Fourth Circuit has held that
container royalty payments, and holiday/vacation pay are wages under Section 2(13) if they are earned
through actual work. Universal Maritime Corp. v. Wright, 155 F.3d 311, 33 BRBS 15 (CRT) (4th Cir.
1998); Story v. Navy Exchange Service Center, 33 BRBS 111 (1999). During periods of disability the
claimant, in Branch, received 20 hours/week credit towards the total needed to receive the container
royalties. Thus, the royalties came to the claimant as a result of disability and not hours actually worked.
The disabled employee's receipt of container royalties and holiday/vacation pay do not reflect post-injury wage-earning capacity under Section 8(h), because under the ILA employment contract, the
employee's entitlement to the payments "was based principally upon his working a certain number of hours
in the previous year." Eagle Marine Services, 115 F.3d at 737.
The situation in Branch is distinguished from that in Aiken v. Stevens Shipping & Terminal, 32 BRBS
1 (ALJ) (1997). In Aiken, the claimant suffered a crush injury to his hand while helping to unload a
container. Unlike in Branch, where the claimant became eligible for a royalty payment after the inclusion of
the disability credit hours, the claimant in Stevens had worked a sufficient number of hours prior to his injury
to establish his eligibility to receive a container royalty payment. The key is whether the claimant
satisfies the container royalty hours requirement with actually worked hours or a combination of
worked and disability credit hours. Where the royalty is paid for purely hours worked then the royalty
is another form of compensation of work performed and falls into the category of wages. As a result, it
should be taken into account when calculating the claimant's average weekly wage.
In accordance with the holding in Branch, "if the payments from the Funds post-injury are 'wages',
then the claimant has a 'wage-earning capacity' and the claimant's 'disability' is less than 'total in character'"
30 BRBS 74, 78(CRT) (4th Cir. 1996). Thus, Section 8(e) applies, and the employer is entitled to a
credit.
In Seaco v. Richardson, 136 F.3d 1290 (11th Cir. 1998), the Eleventh Circuit denied the
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 Section 8(h). The fact that
Richardson, 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." Id.;
Trice v. Virginia Terminals, Inc., 30 BRBS 165, 168 (1996).
Where an employee authorizes the employer to deduct a portion or percentage of his annual
remuneration for investment in a tax deferred annuity, to which the employer contributes nothing, the value
of the annuity must be included in wage calculations. Cretan v. Bethlehem Steel Corp., 24 BRBS 35
(1990). That such amount is not considered income by the IRS in the year received is immaterial as the
amount is included in the salary agreed to under the employment contract. Id. at 43.
Vacation and holiday pay are included in wage determinations and were considered earnings in
the year paid even though they were received after the date of the injury. Sproull v. Stevedoring Servs.
of America, 28 BRBS 271 (1994) (Smith and Dolder,JJ.,dissenting in part), aff'g and modified in part on
recon. en banc, 25 BRBS 100 (1991) (Brown, J., dissenting on other grounds), aff'd in part rev'd in part,
86 F.3d 895, 899 (9th Cir. 1996), cert denied 520 U.S. 1155 (1997); see also Anthony v. I.T.O. Corp.
of Baltimore, (ALJ 94-LHC-2089)(1994)(Unpublished) (refusing to include vacation and holiday pay
because of clause in union contract); Duncan v. Washington Metro. Area Transit Auth., 24 BRBS 133
(1990). Vacation and holiday pay are not necessarily earned in the same year that they are paid. The Ninth
Circuit, in Sproull, agreeing with the dicta of the Board's holding that under other circumstances either
or both payments might be credited in the year earned, if that was a different year, and if such allocation was
preferable for good reason; converted it into a significant element of the holding. The rational for inclusion
of holiday and vacation pay in the year earned is the same as the rational for holding that holiday and
vacation pay are not a fair and reasonable representation of the claimant's post-injury wage-earning capacity
under Section 8(h). Eagle Marine Services v. Director, OWCP, 115 F.3d 735 (9th Cir. 1997); Branch v.
Ceres Corp., 29 BRBS 53 (1995), aff'd mem., 96 F.3d 1438 (table), 30 BRBS 74 (CRT) (4th Cir. 1996).
An employer's payments for, or contribution to, a retirement, pension, health, welfare, life insurance,
training, social security, or other benefit plan are fringe benefits not included in wages.
But, the reasonable value of any advantage received from the employer and subject to withholding,
including an overseas allowance, incentive compensation, completion award, foreign housing
allowance, and cost of living adjustment are properly included in wage computations. Denton v.
Northrop Corp., 21 BRBS 37, 46-47 (1988).
In McNutt v. Benefits Review Board, 140 F.3d 1247 (9th Cir. 1998), the Ninth Circuit held that,
although a $100 per diem amount paid to Claimant while working in Scotland was an "advantage" under
Section 2(13) of the LHWCA, it was not a "wage" under the LHWCA because it was not subject to
withholding under the Internal Revenue Code.
A contingent right to a bonus to be paid in the future is, like a fringe benefit, too speculative
to be considered as part of the employee's prior monetary compensation as of the time of injury. The
payment of the bonus in the following case was contingent upon events that might never have occurred.
Johnston v. Newport News Shipbuilding & Dry Dock Co., 25 BRBS 340, 344 (1992) (§ 10(a)
determination). Cf. Jesse v. Tri-State Terminals, 7 BRBS 156 (1977), aff'd, 596 F.2d 752, 10 BRBS 700
(7th Cir. 1979) (where subsequent earnings of four similarly situated employees, in the year subsequent
to claimant's injury, were utilized for purposes of a § 10(c) determination of average weekly wage.)
Where a claimant was more like an employee than a store-owner and where he earned post-injury
$200 per week and was also entitled to $5,000 of the store's profits, the Board held that it was improper
to include this latter amount in determining the claimant's wage-earning capacity, pursuant to Section 8(h),
as the receipt of such amount is "merely speculative." Seidel v. General Dynamics Corp., 22 BRBS 403
(1989); Denton, 21 BRBS 37.
Thus, the Board limited the Section 8(h) determination to the $200 per week the claimant actually
received. The Board noted that "if claimant does receive a portion of the 'profits' employer can file a motion
for modification based on a change in economic condition." Seidel, 22 BRBS at 406 n.3.
Unemployment insurance is not included in wage calculations. Although readily determinable,
taxable, and paid directly to the employee, unemployment benefits are not paid by the employer pursuant
to a contract for hire or for services rendered in employment. Blakney v. Delaware Operating Co., 25
BRBS 273, 276 (1992). See also Strand v. Hansen Seaway Serv., 614 F.2d 572, 11 BRBS 732 (7th Cir.
1980).
The Board has held, in a claim under the LHWCA as extended by the Defense Base Act, that
overseas allowances and wage additives were properly included in the determination of the employee's
wages because these amounts were (1) easily ascertainable, similar to board, rent or lodging, and (2) were
included for purposes of tax withholding and could not be considered fringe benefits. Denton v. Northrop
Corp., 21 BRBS 37, 46-47 (1988). See generally Cretan v. Bethlehem Steel Corp., 24 BRBS 35, 43-44
(1990); Lopez v. Southern Stevedores, 23 BRBS 295, 301 (1990); Thompson v. McDonnell Douglas
Corp, 17 BRBS 6, 8 (1985).
2.14 SECTION 2(14) CHILD
Section 2(14) of the LHWCA provides that:
The term "child" shall include a posthumous child, a child legally
adopted prior to the injury of the employee, a child in relation to
whom the deceased employee stood in loco parentis for at least one
year prior to the time of injury, and a step child or acknowledged
illegitimate child dependent upon the deceased, but does not include
married children unless wholly dependent on the employee.
"Grandchild" means a child as above defined. The terms "brother"
and "sister" include stepbrothers and stepsisters, half brothers and
half sisters, and brothers and sisters by adoption, but does not
include married brothers or married sisters unless wholly dependent
on the employee. "Child," "grandchild," "brother," and "sister"
include only a person who is under eighteen years of age, or who,
though eighteen years of age or over, is (1) wholly dependent upon
the employee and incapable of self-support by reason of mental or
physical disability, or (2) a student as defined in paragraph (19) of
this section.
33 U.S.C. § 902(14).
[ED. NOTE: In addition to "child," Section 2(14) defines "grandchild," "brother," and "sister."]
The purpose of the definition in Section 2(14) is to delineate who, in conjunction with Section 9 of
the LHWCA, are the legal beneficiaries of an award of death benefits. Smith v. Shell Offshore, 33 BRBS
161 (1999). Thus the Board reasoned that defining "minor" differently than "child" is not an inherent
contradiction. "A person's status as a "minor" merely affects how and when a person might undertake
actions on her own behalf while the status as a "child" affects the person's entitlement to support from
others." Id. A legitimate child under 18 is entitled to benefits merely by virtue of the child's minority
without regard to whether the employee contributed to the child's support. Doe v. Jarka Corp., 16 BRBS
318 (1984); Ingalls Shipbuilding Corp. v. Neuman, 322 F. Supp. 1229 (S.D. Miss. 1970), aff'd, 448 F.2d
773 (5th Cir. 1971).
An employee's thirty-four-year-old son, a child polio victim who uses a brace and crutches, has lived
with his parents his entire life and was wholly dependent upon the employee for his support, despite his
monthly $97.33 in Social Security benefits, was a child, pursuant to Section 2(14), as such benefits were
inconsequential and insubstantial. Mikell v. Savannah Shipyard Co., 24 BRBS 100, 108-09 (1990).
A totally disabled quadriplegic over 18 is not per se dependent upon the employee and must prove
either dependency or status as a student. Doe, 16 BRBS 318. A decedent's sisters may recover only if
they establish that they were dependent upon the employee. Wilson v. Vecco Concrete Constr. Co., 16
BRBS 22, 27 (1983).
The judge must make a determination of dependency based on all of the circumstances of a
particular case. See generally Lucero v. Kaiser Aluminum & Chem. Corp., 23 BRBS 261 (1990); Bonds
v. Smith & Kelly Co., 21 BRBS 240 (1988). Moreover, all questions of dependency shall be determined
as of the time of the injury. Doe, 16 BRBS 318.
The Board has held that a judge may look to state law in determining the meaning of in loco
parentis. Franklin v Port Allen Marine Serv., 16 BRBS 304 (1984) (affirming ALJ's conclusion that
decedent did not stand in loco parentis to his nephews). See Ingalls Shipbuilding Corp. v. Neuman, 448
F.2d 773 (5th Cir. 1971); Trainer v. Ryan-Walsh Stevedoring Co., 8 BRBS 59 (1978), aff'd in pertinent
part, 601 F.2d 1306, 10 BRBS 852 (5th Cir. 1979) (reversing ALJ and holding decedent stood in loco
parentis to the claimant child).
In Trainer, noted above, the Board held that "federal common law" applied to define the terms
"widow" and "widower." More recently, the Board has overruled the decision in Trainer, 8 BRBS at 59,
regarding the existence of "federal common law," and held that state law controls in defining the
terms "husband" and "wife." Jordan v. Virginia Int'l Terminals, 32 BRBS 32 (1998), at 35(Resort to
state law is appropriate for an undefined term if that term does not have a clear and common meaning and
reasonable doubt exists as to the proper meaning); see also Smith v. Shell Offshore, 33 BRBS 161,
(1999)("As there is no 'federal common law,' and as the term 'minor' is neither defined by the [LHWCA]
nor has a clear common meaning, we hold that use of state law is appropriate to determine when an
individual is entitled to file a claim under the [LHWCA] in her own right.").
While the term "in loco parentis," is not defined by the LHWCA and must be defined by using
the appropriate state law, it is not necessary to cite pertinent state law in defining the phrase in order to
assess legal status, provided the ALJ notes the primary elements conforming to the state definition. In this
particular case, the ALJ noted that the phrase "in loco parentis" contains an element of intent and that it is
the intent of the adult, as revealed by his actions, which defines whether an adult stands in loco parentis to
a child. Brooks v. General Dynamics Corp., 32 BRBS 114, (1998).
If, at the time of the decedent's injury, the child was wholly dependent on the money received from
the decedent, he is a "child," pursuant to Section 2(14), and such "wholly dependent" status would be
unaffected by any promise to repay the money at a later date. Lucero, 23 BRBS at 265-66.
The Fifth Circuit and the Board have consistently held that the judge must make the determination
of dependency based on all the circumstances of a particular case. See Jones v. St. John Stevedoring Co.,
18 BRBS 68 (1986), aff'd in pert. part sub nom. St. John Stevedoring Co. v. Wilfred, 818 F.2d 397 (5th
Cir.), cert. denied, 484 U.S. 976 (1987).
In Jones, the Board reversed denial of benefits to a child, holding that "the evidence overwhelmingly
supports a finding of acknowledgment and dependency" as a matter of law. See also Texas Employers' Ins.
Ass'n v. Shea, 410 F.2d 56 (5th Cir. 1969); Texas Employers' Ins. Ass'n v. Sheppeard, 62 F.2d 122 (5th
Cir. 1932); Bonds, 17 BRBS at 173.
The term "dependency" means not self-sustaining, relying on for support, or relying on for
contributions to meet the reasonably necessary expenses of living. See Shea, 410 F.2d at 62; Standard
Dredging Corp. v. Henderson, 150 F.2d 78, 80-81 (5th Cir. 1945); Sheppeard, 62 F.2d at 124; Bonds,
17 BRBS at 172.
Further, the Fifth Circuit has affirmed a finding of dependency when the monetary payments for
the individual's support were regular even if the amount of each payment was small. See Shea, 410 F.2d
at 62.
The Board affirmed a finding of dependency where the testimony of the child's mother and other
witnesses that the decedent gave the child money, bought her gifts, and assisted in paying for clothes and
food, established that the decedent provided the child with sufficient financial support so that she could be
properly found to be dependent, pursuant to Section 2(14) of the LHWCA. Bonds v. Smith & Kelly Co.,
21 BRBS 240, 243 (1988).
Benefits were denied, however, to the employee's illegitimate daughter where she was neither
acknowledged by nor dependent upon the employee. Hicks v. Southern Ill. Univ., 19 BRBS 222, 225-26
(1987).
It is not necessary to look to state law to define terms when a definition in the federal statute is
complete, since it controls. In Jones, 18 BRBS 68, the Board held that as the term "acknowledged" can
be given a clear meaning, the judge erred in looking to state law for a definition. Since the overwhelming
evidence supported a finding of acknowledgment the claimant was held acknowledged as a matter of law.
See Weyerhaeuser Timber Co. v. Marshall, 102 F.2d 78 (9th Cir. 1939) (state statute requiring that
paternity be acknowledged in writing does not apply; child acknowledged orally is entitled to benefits).
An illegitimate child born after the employee's death was held entitled to be classified as dependent
because substantial evidence supported a finding that she was acknowledged and dependent prior to the
employee's death. Texas Employers' Ins. Ass'n v. Shea, 410 F.2d 56 (5th Cir. 1969).
Where a decedent did not bring an action to disavow paternity in his lifetime, his paternity could not
be challenged in compensation proceedings, although the children had been recognized as children of
another and had been so registered until the employee's death. Henderson v. Avondale Marine Ways, 204
F.2d 178 (5th Cir. 1953), cert. denied, 346 U.S. 875 (1953).
Benefits are payable to a dependent child until he or she reaches the age of eighteen, unless the child
qualifies as a "student" within Section 2(18). Smith v. Sealand Terminal, 14 BRBS 844, 852 (1982). (See
Section 2(18), infra).
2.15 SECTION 2(15) PARENT
Section 2(15) of the LHWCA provides:
The term "parent" includes stepparents and parents by adoption,
parents-in-law, and any person who for more than three years prior
to the death of the deceased employee stood in the place of a parent
to him, if dependent on the injured employee.
33 U.S.C. § 902(15).
The parent of an employee killed in the course of his employment is entitled to death benefits,
pursuant to Section 9(d) of the LHWCA, if the parent was at least partly dependent on such employee for
his accustomed standard of living. The Board and at least two circuits have rejected an employer's argument
that the parent must qualify as a dependent under 26 U.S.C. § 152 as without merit. Myers v. Bethlehem
Steel Co., 250 F.2d 615 (4th Cir. 1957); Vinnell Corp. v. Pillsbury, 199 F.2d 885 (9th Cir. 1952); Fino
v. Bethlehem Steel Corp., 5 BRBS 223, 226-27 (1976).
2.16 SECTION 2(16) WIDOW OR WIDOWER
Section 2(16) of the LHWCA provides:
The term "widow or widower" includes only the decedent's wife or
husband living with or dependent for support upon him or her at the
time of his or her death; or living apart for justifiable cause or by
reason of his or her desertion at such time.
33 U.S.C. § 902(16).
The LHWCA does not define "wife" or "husband." It is the claimant's burden to establish status as
a widow or widower; Section 20(a) does not apply. Meister v. Ranch Restaurant, 8 BRBS 185 (1978),
aff'd, 600 F.2d 280 (D.C. Cir. 1979).
The Supreme Court has established the test for determining whether a widow was living apart from
her spouse for "justifiable cause" or by reason of "desertion" at the time of the spouse's death. In
Thompson v. Lawson, 347 U.S. 334 (1954), the decedent deserted the claimant, and both parties thereafter
entered into purported marriages. The Court indicated that since the claimant was not, at the time of her
husband's death, living apart from him "by reason of his desertion," she was not a "widow" under the
LHWCA.
In this regard, the Court provided, "[T]he essential requirement is a conjugal nexus between the
claimant and the decedent subsisting at the time of the latter's death, which, for present purposes, means that
she must continue to live as the deserted wife of the latter." 347 U.S. at 336-37. The Court held that the
claimant must make a "conscious choice to terminate her prior conjugal relationship," which in Thompson
she did by "embarking upon another permanent relationship." Id. at 337.
Although the Supreme Court did not expressly address "justifiable cause" in Thompson, a case
which involved desertion, the Court provided in a footnote that:
It was not contended before us that in the circumstances of this case the
phrase "for justifiable cause" had a different reach than the phrase "by
reason of his desertion."
347 U.S. at 336 n.*.
In General Dynamics Corp., Quincy Shipbuilding Div. v. Director, OWCP, 585 F.2d 1168, 9
BRBS 188 (1st Cir. 1978), aff'g Murphy v. General Dynamics Corp., 7 BRBS 960 (1978), the First
Circuit, following Thompson, found no need to refer to state domestic relations law for a definition of
"desertion." The court found substantial evidence to support the conclusion that the claimant lived as a
deserted wife until the decedent's death.
The Board has held, as a matter of law, that a claimant was the decedent's surviving spouse as the
record demonstrated the existence of "living apart for justifiable cause," pursuant to Section 2(16), because
(1) the claimant and the decedent separated because they could not live together amicably; (2) the claimant
did not intend to sever the "conjugal nexus" between her husband and herself when she moved out; and (3)
any long-term weakening of the marriage was caused by the decedent rather than the claimant. Kennedy
v. Container Stevedoring Co., 23 BRBS 33 (1989).
The proper application of Section 2(16) depends upon the relationship between the claimant and
the decedent, see Leete v. Director, OWCP, 790 F.2d 418, 18 BRBS 93 (CRT) (5th Cir. 1986), and,
in particular, whether there was a conscious choice by the claimant to terminate her prior conjugal
relationship. Thompson, 347 U.S. 334.
The Board has held that before reaching the issue of whether a conjugal nexus existed, a claimant
must establish that he or she and the decedent were living apart for a justifiable cause. Meister v. Ranch
Restaurant, 8 BRBS 185 (1978), aff'd, 600 F.2d 280 (D.C. Cir. 1979) (Table). In Meister, the Board
found no need to determine whether a conjugal nexus existed, as it affirmed the ALJ's finding that the
claimant had not established a justifiable cause for living apart from the decedent.
The Board concluded, on the facts of the case, that the claimant's drinking was not cause for their
separation, but rather that the claimant voluntarily deserted or abandoned his wife. The Board distinguished
the holding in Matthews v. Walter, 512 F.2d 941 (D.C. Cir. 1975), aff'g BRB No. 73-103 (Sept. 9, 1973),
that excessive drinking may be justifiable cause for living apart.
Where justifiable cause exists for the initial separation, subsequent conduct of the parties may sever
the conjugal nexus, and, thus, the claimant will not be considered the widow/widower. Henderson v.
Avondale Marine Ways, 204 F.2d 178 (5th Cir.), cert. denied, 346 U.S. 875 (1953) (despite justifiable
cause at time of claimant's separation, subsequent relationships with other men provided a new reason for
living apart and severed the nexus).
In Leete, 790 F.2d 418, 18 BRBS 93 (CRT), the Board affirmed the judge's decision that the
conjugal nexus had been terminated at the time of death where the claimant had engaged in a relationship
with another man during that time.
In Griffin v. Bath Iron Works Corp., 25 BRBS 26 (1991), the judge concluded that the claimant
was not a "widow" who qualified for death benefits under the pertinent provisions of the LHWCA because
the LHWCA required that the claimant be both (1) the decedent's spouse at the time of his initial injury, and
(2) living with or dependent on the decedent at the time of his death to qualify for death benefits.
The judge reasoned that since the claimant in this case was not married to the decedent at the time
of the decedent's initial injury, i.e., when the decedent's lung condition was first diagnosed, Section 9(f) of
the LHWCA, which provides that "all questions of dependency shall be determined as of the time of injury,"
is applicable. The ALJ concluded that since the claimant was not dependent upon the decedent at the time
of the initial injury, she was not entitled to death benefits.
On appeal, the claimant argued that the ALJ erred in determining that Section 9(f) is applicable to
this case. She posited that the fact that she was married to and dependent upon decedent at the time of his
death entitles her to death benefits, regardless of her status as of her husband's time of injury. The claimant
further contended that denying her death benefits would work a result which is inconsistent with the
humanitarian purpose of the LHWCA, in that she lived with decedent for more than twenty years, was
married to him for sixteen years, and cared for him throughout his illness.
The Board, in reversing the denial of death benefits, held, as a matter of law, that "the plain language
of Section 2(16) indicates that its clauses are to be read in the disjunctive; that is, a widow or widower
is a wife or husband who, at the time of the employee's death, is living with the employee, or is
dependent for support upon the employee, or is living apart from the employee for justifiable
cause, or is living apart by reason of desertion. See 33 U.S.C. § 902(16)." Griffin, 25 BRBS at 28.
In Griffin, the Board pointed out that the Ninth Circuit and the Board have interpreted Section
2(16) as providing for alternative bases for recovery. See Turnbull v. Cyr, 188 F.2d 455 (9th Cir.
1951); Denton v. Northrop Corp., 21 BRBS 37 (1988). In Turnbull, the Ninth Circuit affirmed a district
court's finding that a claimant was entitled to death benefits as the widow of the decedent.
The case turned on the issue of whether the widow, who was living with but not dependent for
support on the decedent at the time of his death, could claim death benefits. The court held that since the
conditions of Section 2(16), that the widow must be living with or dependent for support on the decedent
at the time of his death, or stated in the alternative, "it is clear" that fulfillment of either one of the conditions
qualified the claimant as a widow. In so doing, the court specifically noted that Section 9(f) of the LHWCA
did not militate against this construction of Section 2(16), since the question of dependency was not
applicable. Turnbull, 188 F.2d at 457.
Moreover, according to the Board, the provisions of Section 2(16) have been consistently
interpreted as affording claimants alternative bases of recovery in that the surviving widow need not have
been decedent's spouse at the time of injury because Section 2(16) looks to the relationship at the time of
death, by its plain language.
Thus, in Griffin, the Board held that the claimant in the instant case -- who was undisputedly married
to and living with decedent at the time of decedent's work-related death -- need not establish dependency
at any time, including the time of decedent's initial injury, to be entitled to death benefits. Therefore, because
the question of dependency is not at issue in this case, Section 9(f) is inapplicable. Griffin, 25 BRBS at 28-29.
In Denton, 21 BRBS 37, a case where the employee died after suffering a traumatic injury, the
Board affirmed the ALJ's determinations that the decedent and his wife lived apart for justifiable cause and
that the ALJ need not determine whether the claimant was dependent upon the decedent "since the clauses
of Section 2(16) are mutually exclusive." 21 BRBS at 44.
In Denton, the parties were married at the time of decedent's death as the interlocutory judgment
of dissolution stated on its face that it did not constitute a final dissolution of the marriage. See generally
Kennedy, 23 BRBS 33; Hicks v. Southern Ill. Univ., 19 BRBS 222 (1987).
There are several noteworthy decisions regarding a determination as to whether or not a husband
and wife were living apart for justifiable cause or by reason of desertion. See, e.g., Lynch v.
Washington Metro. Area Transit Auth., 22 BRBS 351, 355 (1989) (Board affirmed the judge's conclusion
that claimant and decedent were living apart for justifiable cause and that a conjugal nexus existed between
them at the time of death where decedent, who had severe mental problems, forced claimant to sign the
separation agreement at gunpoint; decedent physically abused claimant while they lived together; claimant
cared for decedent immediately after his mother died; claimant and decedent never divorced; they
maintained frequent contact and a friendly relationship; and claimant had not remarried since decedent's
death).
In Trainer v. Ryan-Walsh Stevedoring Co., 8 BRBS 59, 65 (1978), the Board established a uniform
federal standard for determining "widow"/"widower" status under the LHWCA, i.e., a claimant applying
for death benefits is conclusively a widow or widower if at the time of the employee's death the employee
and the claimant had lived together for at least 10 years in the same household and held themselves out to
their relatives, friends, neighbors and tradespeople as husband and wife.
On appeal, however, the Fifth Circuit held that the Board's establishment of a federal standard for
determining the status of a "widow" was improper and that such a determination must be based upon the
applicable state law of domestic relations. Ryan-Walsh Stevedoring Co. v. Trainer, 601 F.2d 1306,
10 BRBS 852 (5th Cir. 1979).
[ED. NOTE: The Board has overruled its holding in Trainer. Jordan v. Virginia International
Terminals, 32 BRBS 32 (1998).]
In Trainer, the Fifth Circuit held that the "conjugal nexus" test of Thompson, 347 U.S. 334, did not
authorize the creation of a federal common law of marriage to determine whether the claimant, in the first
instance, was married to the deceased employee. Trainer, 10 BRBS at 859.
See also Seaboard Air Line Ry. v. Kenney, 240 U.S. 489 (1916) (terms relating to familial
relationships are defined by reference to state law); Marcus v. Director, OWCP, 548 F.2d 1044, 1047
(D.C. Cir. 1976) (since the statue does not further define "husband" for purposes of determining coverage,
the local law of domestic relations must supply its meaning); Powell v. Rogers, 496 F.2d 1248, 1251 (9th
Cir.), cert. denied, 419 U.S. 1032 (1974); Albina Engine & Mach. Works v. O'Leary, 328 F.2d 877, 878
(9th Cir.), cert. denied, 379 U.S. 817 (1964) (although meaning of the LHWCA is a question of federal
law, local law gives meaning to the term surviving "wife" when undefined by the LHWCA).
The Board has followed the Fifth Circuit's opinion only in cases arising in that circuit. Smith v.
Sealand Terminal, Inc., 14 BRBS 844 (1982) (holding claimant qualifies as decedent's widow under both
the Trainer test and Mississippi law). In Smith, the Board stated it was bound by the Fifth Circuits's
reversal of Trainer, and therefore based its holding on state law.
The Board, however, stated its disagreement with the Fifth Circuit's opinion and reasserted its
opinion that "it is inappropriate for state law to control issues involving entitlement to compensation under
this federal statute." Smith, 14 BRBS at 852. See also Bowman v. Riceland Foods, 13 BRBS 747 (1981).
In Jordan v. Virginia International Terminals, 32 BRBS 32 (1998), the Board held that the LHWCA
defers to state law when determining whether a couple was married at the time of the claimant's death. The
Board officially overruled its prior position in Trainer.
2.17 2(17) ADOPTION
Section 2(17) of the LHWCA provides:
The terms "adoption" or "adopted" mean legal adoption
prior to the time of the injury.
33 U.S.C. § 902(17).
Benefits were denied to the adopted child of the deceased who, although a minor at the time of the
decedent's death, was not adopted by decedent until eight years after the date of the injury. Section 9(f)
requires that all questions of dependency shall be determined as of the date of the injury. Estate of Curtis
Scott v. Ingalls Shipbuilding, Inc., 15 BRBS 290, 293 (ALJ) (1983).
2.18 SECTION 2(18) STUDENT
Section 2(18) of the LHWCA provides:
The term "student" means a person regularly pursuing a
full-time course of study or training at an institute which is--
(A) A school or college or university operated or directly
supported by the United States; or by any State or local government
or political subdivision thereof,
(B) a school or college or university which has been
accredited by a State or by a State recognized or nationally
recognized accrediting agency or body,
(C) a school or college or university not so accredited but
whose credits are accepted, on transfer, by not less than three
institutions which are so accredited, for credit on the same basis as
if transferred from an institution so accredited, or
(D) an additional type of educational or training institution
as defined by the Secretary, but not after he reaches the age of
twenty-three or has completed four years of education beyond the
high school level, except that, where his twenty-third birthday occurs
during a semester or other enrollment period, he shall continue to be
considered a student until the end of such semester or other
enrollment period. A child shall not be deemed to have ceased to be
a student during any interim between school years if the interim
does not exceed five months and if he shows to the satisfaction of
the Secretary that he has a bona fide intention of continuing to
pursue a full-time course of education or training during the
semester or other enrollment period immediately following the
interim or during periods of reasonable duration during which, in the
judgment of the Secretary, he is prevented by factors beyond his
control from pursuing his education. A child shall not be deemed to
be a student under this Act during a period of service in the Armed
Forces of the United States.
33 U.S.C. § 902(18).
In Denton v. Northrop Corp., 21 BRBS 37 (1988), the employer contended that the judge erred
in finding that the claimant's son was entitled to benefits after his eighteenth birthday, December 3, 1982,
because the son took no classes from February 26, 1983, until August 1, 1983, and, therefore, was not a
student as defined by Section 2(18) because of the five-month cessation in his studies.
The judge accepted employer's argument that the son was not a college student from February 26,
1983, until August 1, 1983, but found that he was finishing his high school education, and received his high
school diploma on June 10, 1983. The judge further found that the son began his college education in
August 1983. The judge found, and the Board agreed, that claimant established that he was a full-time
student from the age of 18 as there was no five-month cessation of studies between his graduation from high
school and beginning of college. Denton, 21 BRBS at 44-45.
The employer also contended that mere enrollment in an educational institution is not sufficient to
establish student status, citing Smith v. Sealand Terminal, 14 BRBS 844 (1982). In Smith, the Board
remanded the case for the judge to determine whether the child retained student status between high school
and vocational school where he enrolled, but never attended, due to lack of funds. The Board stated in
Smith that under Section 2(18), one is not deemed to cease to be a student if prevented from
attending school due to factors beyond his/her control.
In Hawkins v. Harbert Int'l, Inc., 33 BRBS 198, (1999), the Board held that the plain meaning of
Section 2(18)(B) indicated that Congress did not intend to define the term "school" as being synonymous
with "college or university", but rather, meant to expand the definition of "student" to include those older than
eighteen and attending schools other than colleges or universities. This would include vocational schools as
well as high schools. Had Congress meant for the term "school" to be synonymous with "college or
university," it would have left this term out of Section 2(18)(B) entirely. However, the institution must be
accredited by a State or by a State-recognized or nationally recognized accrediting agency or body. In
Hawkins, the private high school attended by decedent's son was not an accredited high school. The private
high school had applied for accreditation, but two months after the decedent's son had graduated. The
Board, therefore, held that the decedent's son was not a student under the LHWCA.
2.19 SECTION 2(19) AVERAGE WEEKLY WAGE
Section 2(19) of the LHWCA provides:
The term "National Average Weekly Wage" means the National
Average Weekly earnings of production or nonsupervisory workers
on private nonagricultural payrolls.
33 U.S.C. § 902(19). See generally Bailey v. Bath Iron Works Corp., 24 BRBS 229, 233, aff'd sub nom.
Bath Iron Works Corp. v. Director, OWCP, 950 F.2d 56, 25 BRBS 55 (CRT) (1st Cir. 1991); Adams
v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 78 (1989). An award of death benefits to the
widow of a voluntary retiree is based upon the National Average Weekly Wage as of the date of the
retiree's death, pursuant to Section 10(i) of the LHWCA. Bailey, 24 BRBS at 233.
The LHWCA calculates the claimant's average weekly wage differently based on the type of injury
sustained. The general rule, in a trauma case, is that the employee's average weekly wage "at the time of
the injury" is used to compute the claimant's compensation. LeBlanc v. Cooper/T. Smith Stevedoring, Inc.,
130 F.3d 157 (5th Cir. 1997). However in the case of occupational diseases the LHWCA treats the
time of injury, and thus the average weekly wage, as being that time when the claimant became aware of,
"or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the
relationship between the employment, the disease, and the death or disability." Id.
[Editor's Note: For factors governing the calculation of an individual's average weekly wage see
Topic 2.13, supra.]
[ED NOTE: Recently the Board rejected a claimant's contention that, in determining her average
weekly wage, the ALJ was required to exclude the entire time her family physician certified that she
was disabled due to the deaths in her family. Scudder v. Maersk Pacific, Ltd., (BRB No. 00-1063)(July 24, 2001)(Unpublished), citing generally Preziosi v. Controlled Industries, Inc., 22 BRBS
468, 473 (1989); Greene v. J.O. Hartman Meats, 21 BRBS 214, 217 (1988). In Scudder, the Board
noted that it was taking this position absent any indication from Congress that the LHWCA should
be interpreted consistently with the Family and Medical Leave Act, 29 U.S.C. §2611 et. seq. (1993).]
2.20 2(20) BOARD
Section 2(20) of the LHWCA provides:
The term "Board" shall mean the Benefits Review Board.
33 U.S.C. § 902(20).
It is well-settled that the Board's scope of review is limited and that the Board must affirm the
findings and conclusions of the administrative law judge if they are supported by substantial evidence,
rational, and in accordance with law. See 33 U.S.C. § 921(b)(3); O'Keeffe v. Smith, Hinchman & Grylls
Assocs., 380 U.S. 359 (1965).
It is also well-settled that the Board does not have the authority to engage in a de novo review of
the evidence or to substitute its views for those of the administrative law judge. Presley v. Tinsley
Maintenance Serv., 529 F.2d 433, 436, 3 BRBS 398 (5th Cir. 1976). The findings of the judge must be
accepted unless they are not supported by substantial evidence in the record considered as a whole or
unless they are irrational. Hairston v. Todd Shipyards Corp., 849 F.2d 1194, 1195 (9th Cir. 1988). The
Board's interpretation of the LHWCA is not entitled to any special deference from the appellate court
reviewing the Board's actions. Potomac Elec. Power Co. v. Director, OWCP, 449 U.S. 268, 278 n.18
(1980).
In Mijangos v. Avondale Shipyards, 948 F.2d 941, 25 BRBS 78 (CRT) (5th Cir. 1991), rev'g 19
BRBS 15 (1986), the Fifth Circuit, in reversing the Board, held that "(a)ll of the ALJ's determinations are
amply supported by the record. The only conclusion that can be drawn is that the Board disagreed with the
credibility determinations made by the ALJ." Moreover, according to the Fifth Circuit:
The Board exceeded its statutorily defined powers of review. The Board
impermissibly reweighed the evidence and made its own credibility
determinations. The ALJ was free to disregard parts of some witnesses'
testimony while crediting other parts of that testimony. All of the ALJ's
credibility determinations and findings were both rational and supported by
substantial evidence. The original order of the ALJ should have been
affirmed.
Mijangos, 25 BRBS at 81 (CRT). Accordingly, the Fifth Circuit reversed the Board's decision and
reinstated the administrative law judge's original order finding the claimant permanently and totally disabled.
Id.
The Second Circuit also found that the Board had engaged in impermissible fact-finding in La Faille
v. Benefits Review Bd., 884 F.2d 54, 22 BRBS 108 (CRT) (2d Cir. 1989), rev'g and rem'g 18 BRBS 88
(1986).
In General Dynamics Corp. v. Horrigan, 848 F.2d 321, 21 BRBS 73 (CRT) (1st Cir. 1988), cert.
denied, 488 U.S. 992 (1988), the First Circuit stated:
these determinations (i.e., fact-finding as to an attorney fee) are best left to
the trial judge, in this case the administrative law judge. The Supreme
Court emphasized that, because of the equitable nature of this
determination, the fact finder's discretion should be broad. Hensley v.
Eckerhart, 461 U.S. at 437. "This is appropriate in view of the fact finder's
superior understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual matters." Id. See
also Garrity v. Sununu, 752 F.2d at 735. [Moreover,] the determination
of the ALJ must be accorded a broad degree of deference. "The findings
of fact in the decision under review by the Board shall be conclusive if
supported by substantial evidence in the record considered as a whole,"
33 U.S.C. § 921(b)(3). The Board "may not engage in de novo review
and substitute its findings for the ALJ's." Prolerized New England Co. v.
Benefits Review Board, 637 F.2d 30, 35 (1st Cir. 1980).
Horrigan, 21 BRBS at 81-83 (CRT) (emphasis added).
2.21 SECTION 2(21) VESSEL
(For a complete discussion of "vessel" see Topic 1.4.3.)
Section 2(21) of the LHWCA provides:
Unless the context requires otherwise, the term "vessel"
means any vessel upon which or in connection with which any person
entitled to benefits under this Act suffers injury or death arising out
of or in the course of his employment, and said vessel's owner,
owner pro hac vice, agent, operator, charter or bare boat charterer,
master, officer, or crew member.
33 U.S.C. § 902(21).
The LHWCA, unlike the Jones Act, 46 U.S.C. § 688, does not expressly incorporate the definition
of vessel set forth in 1 U.S.C. § 3 ("Every description of watercraft or other artificial contrivance used, or
capable of being used, as a means of transportation on water"). The Fifth Circuit, however, has adopted
the definition of vessel provided in 1 U.S.C. § 3 for use in longshore cases. See Burks v. American River
Transp. Co., 679 F.2d 69 (5th Cir. 1982). In Burks, the Fifth Circuit, in a case involving a negligence
action against a vessel under Section 5(b) of the LHWCA, 33 U.S.C. § 905(b), held that a non-propelled
barge equipped with a crane used for the unloading of ships was a vessel. (See Topic 1, supra).
The Fifth Circuit specifically noted that "[s]pecial purpose structures whose primary function is not
transportation, such as a drilling barge with retractable legs that raise the barge out of the water" or "a barge
submerged and in use as a drilling platform" are vessels. Offshore Co. v. Robison, 266 F.2d 769, 779 (5th
Cir. 1959); Producers Drilling Co. v. Gray, 361 F.2d 432, 437 (5th Cir. 1966); Burks, 679 F.2d at 75.
In McCullough v. Marathon Letourneau Co., 22 BRBS 359, 363 (1989), the Board affirmed the
finding that a jack-up rig, which was capable of floating and of being used as a means of transportation, was
a vessel. The fact that the jack-up rig under construction is not yet a vessel does not preclude a finding of
coverage just as a tanker or battleship will be a ship upon completion. Id. at 364.
Moreover, floating oil rigs have been treated as vessels by the courts and workers on them, unlike
workers on fixed platforms, enjoy the same remedies as workers on ships, either under the Jones Act or
LHWCA. Herb's Welding v. Gray, 470 U.S. 414 n.2, 17 BRBS 78, 79 n.2 (CRT) (1985). Compare
Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352 (1969) (claimant was not a shipbuilder because
the structure he was building was tantamount to an "artificial island" and was therefore not a vessel).
The Fifth Circuit has recently held that a spar, a nautical structure designed to float with the bulk
of its hull below the waves like a "giant buoy," was not a vessel for purposes of the Jones Act. The court
found that the spar was more like an offshore work platform. Fields v. Pool Company, 182 F.3d 353 (5th
Cir. 1999).
In McCarthy v. The Bark Peking, 716 F.2d 130, 15 BRBS 182, 190 (CRT) (2d Cir. 1983), a
worker was injured while painting the upper main mast and spars of a museum vessel, during the course of
his employment, on actual navigable waters, at the South Street Seaport Museum in New York City. The
Second Circuit, upon remand of the claim from the Supreme Court, held (1) that the claimant was a
maritime employee who was "injured on the actual navigable waters in the course of his employment on
those waters" and (2) that THE BARK PEKING was a vessel, within the meaning and intent of Section 5(b)
and its provision dealing with "the negligence of a vessel," so that his statutory remedies are not limited by
Section 5(a), the exclusivity provision of the LHWCA.
The court, pointing out that the LHWCA contains "only a circular definition of the term 'vessel'" in
Section 2(21), noted various types of "seafaring entities" which have been held to be "vessels," such as non-propelled river barges in use as transports, Burks v. American River Transportation Co., 679 F.2d 69 (5th
Cir. 1982), a 97 percent completed destroyer, Lundy v. Litton Systems, 624 F.2d 590 (5th Cir. 1980),
cert. denied, 450 U.S. 913 (1981), a yard derrick barge, Richardson v. Norfolk Shipbuilding & Dry Dock
Corp., 479 F. Supp. 259 (E.D. Va. 1979), aff'd on other grounds, 621 F.2d 633 (4th Cir. 1980), and a
floating crane, Bongiovanni v. N.V. Stoomvaart-Matts "Oostzee", 458 F. Supp. 602 (S.D.N.Y. 1978).
Thus, the Second Circuit held that THE BARK PEKING still remained a "vessel" for purposes of
Section 5(b) since the ship rested in navigable waters and was capable of returning to the sea, even if only
in tow. McCarthy, 15 BRBS at 187, 190 (CRT). However, the 1984 Amendments specifically exclude
workers employed by a museum at Section 2(3)(B).
Moreover, the hull of a ship, floating on navigable waters during shipbuilding construction, is a vessel
for purposes of a tort action authorized by Section 5(b) of the LHWCA. Hall v. Hvide Hull No. 3, 746
F.2d 294, 17 BRBS 1 (CRT) (5th Cir. 1984). See also Lundy v. Litton Sys., 624 F.2d 590 (5th Cir.
1980), cert. denied, 450 U.S. 913 (1981).
In Mississippi Coast Marine v. Bosarge, 637 F.2d 994, 12 BRBS 969, 971-72, modified and reh'g
denied, 657 F.2d 665 (5th Cir. 1981), the Fifth Circuit held that a recreational boat builder and a small
pleasure craft marina came within the coverage of the LHWCA, even where the work performed was solely
upon vessels under the eighteen tons net. The fact that the claimant's duties bore similarities to those of a
land-based carpenter was not determinative because there is no activity more fundamental to maritime
employment than the building and repairing of navigable vessels.
2.22 SECTION 2(22)
Section 2(22) of the LHWCA provides:
The singular includes the plural and the masculine includes
the feminine and neuter.
33 U.S.C. § 902(22).