At bottom, foreign territorial waters and their adjoining shore-based areas are not the "navigable waters of the United States." 33 U.S.C. § 903(a). Tracy's injuries as a worker in the ports of Indonesia and Singapore did not satisfy the situs component of LHWCA coverage. Three cheers for the 9th Circuit following the plain language of the Act.
Keller Found. v. Tracy, 2012 U.S. App. LEXIS 19768 (9th Cir. Sept. 20, 2012).
In the Zepeda case, the 5th Circuit (TX, LA, MS) affirmed an administrative law judge’s finding of LHWCA situs. However, in the Ramos case, the 11th Circuit (AL, GA, FL) reversed the ALJ and held there was no situs. Both appellate courts relied on the 5th Circuit’s en banc decision from 1980 in Texports v. Winchester. That case, decided by a full (en banc) panel of the 5th Circuit, held that that despite the statute requiring an area “adjoining” navigable water, a work area arguably related to maritime activity need not actually touch water. It is enough if "the site is close to or in the vicinity of navigable waters, or in a neighboring area, ... ." 632 F.2d 504, 514 (5th Cir. 1980) (en banc), cert. denied, 452 U.S. 905 ( 1981)(emphasis added).
There is no formulaic test to determine situs, which leads to a fact-intensive inquiry. An ALJ should consider: (1) geographic nexus - whether the site is specific sufficiently close to a waterfront; and, (2) functional nexus - whether the location has a purpose for its proximity to the waterfront.
Zepeda was container repair mechanic who worked in two yards: the Chef Yard, which is approximately 300 yards from the Industrial Canal in New Orleans, and Terminal Yard, which is approximately 100 yards from the waterfront. The ALJ found that Zepeda’s alleged hearing loss occurred on a LHWCA-covered site because the container repair facilities served in part a client whose containers were used in land and maritime transportation. The yards were also surrounded by other maritime businesses. The 5th Circuit relied heavily on its limited scope of review and held the ALJ's decision was supported by substantial evidence. Therefore, it was affirmed. New Orleans Depot Servs. v. Dir., 2012 U.S. App. LEXIS 15336 (5th Cir. July 25, 2012).
The ALJ in the Ramos case also found the container repair yard – even though it was over 3 miles from the Port of Jacksonville – was a covered situs. However, the 11th Circuit reversed the ALJ because there was no geographic nexus between the yard and the waterfront. The yard was not in the “vicinity” of navigable waters. While the tentacles of LHWCA coverage are long, situs could not be stretched that far. Ramos v. Dir., OWCP, 2012 U.S. App. LEXIS 16663 (11th Cir. Aug. 10, 2012).
Coincidentally, one of the reasons the 5th Circuit majority in Zepeda upheld LHWCA coverage is that it did not want to create a circuit split with a 1990 decision from the 11th Circuit involving a container repair facility. The 11th Circuit's Ramos case decided two weeks later did just that.
This split between circuits highlights the unpredictability of the 32-year-old “close enough” test from Winchester. Judge Clement’s dissent in the Zepeda case echoes the sentiment of many maritime employers. The Winchester test "construes situs so broadly that it threatens to swallow every employer with even a tangential relation to the maritime industry." This injects costly uncertainty into business planning, insurance decisions, and claims handling.
On June 25, 2012, the U.S. Department of Labor's National Longshore Division Office issued Industry Notice 139 stating that effective July 1, 2012, all open cases (with noted exceptions) for
claimants living in Pennsylvania, Delaware, and West Virginia, will be
tranferred from the Baltimore MD Longshore District Office to the Norfolk VA
Longshore District Office.
We suspect this is a belt-tightening move by the DOL to consolidate cases in a higher volume district. This only applies to cases pending at the OWCP level.
The complete industry notice can be viewed using the link below:
In this hearing loss claim under the Longshore & Harbor Workers' Compensation Act (LHWCA), the U.S. Court of Appeals for the 5th Circuit took the Benefits Review Board to task for an opinion it called "falling short legally in several respects." Ceres Gulf, Inc. v. Director, OWCP [Plaisance], 2012 U.S. App. LEXIS 11237 (5th Cir. June 4, 2012).
Norris Plaisance, now over 80 years old, worked for Ceres Gulf for his last six years of employment as a longshoreman ending in 1988. In 2006, he filed a claim for LHWCA benefits for 80.8% binaural hearing impairment and hearing aids.
In the first trial, the administrative law judge rejected Plaisance's claim. To rebut the presumption of compensability, Ceres presented evidence that Plaisance's work likely did not cause his hearing loss. The trial judge credited Ceres' audiologist Michael Seidemann, Ph.D., who said that Plaisance's hearing loss was not due to his exposure to noise at work. Plaisance's otosclerosis -- abnormal bone growth in the middle ear -- acted as natural earplug to block out a bulk of the noise at work. Plaisance’s hearing was better than other 80-year-olds who were not exposed to loud noise, which tended to show noise exposure in the 1980s did not harm his hearing. Dr. Seidemann also said Ceres' facility was similar to other facilities where the doctor had surveyed noise and found the noise level unharmful. On appeal, the Board reversed the trial judge, holding that the judge should not have relied on Ceres' evidence of noise surveys of other facilities and comparisons to other 80-year-olds. The Board sent the case back down to the trial judge, who then held Plaisance entitled to benefits though less than he wanted -- only 8.4% binaural hearing impairment.
Plaisance appealed again. The Board reversed in favor of Plaisance again, holding that the trial judge should have awarded benefits for all of Plaisance's hearing impairment because his non-work loss combined with his presumed work-related loss. Ceres, the Board said, should have proved that Plaisance's non-work-related otosclerosis occurred after he left Ceres to rebut the presumption. Without that burden met, Ceres should pay for all of Plaisance’s hearing loss. Ceres appealed to the 5th Circuit.
The 5th Circuit reversed the Board indicating the Board stepped into the trial judge's role and re-weighed the evidence. The court said "..the Board impermissibly placed a thumb on the evidentiary scale...." Though reasonable minds could differ, the trial judge credited Dr. Seidemann who said that Plaisance's hearing loss was not due to his exposure to noise at work. Dr. Seidemann, whose credentials the court called "unimpeachable," made rational, unequivocal conclusions on which the trial judge could reasonably rely. The court re-instated the trial judge's original findings and held Plaisance was not entitled to hearing loss benefits from Ceres.
At bottom, this case turns on whether the Board applied the proper standard for the shifting burden of the LHWCA. Claimant can easily invoke the presumption of compensability by showing harm that could have caused his work injury. The employer must then rebut with "substantial evidence" to show that the injury was not caused by employment. The 5th Circuit reversed the Board in this and prior cases holding that an employer should NOT be required to disprove Claimant's case to rebut the presumption. The employer must only show clear evidence that a "reasonable mind might accept as adequate to support a conclusion” that, for example, Plaisance's hearing loss was not caused by his employment. Ceres did that, and Plaisance then had the burden to persuade the trial judge that his hearing loss was work-related. He did not, thus, no hearing loss benefits.
To get the ball rolling, all the worker has to do is credibly show that (1) he 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. Once the presumption is invoked, the employer has to rebut the presumption with substantial evidence that the worker’s symptoms were not caused by work. If the employer does that, the Section 20 presumption is gone. The worker then has the burden to win benefits by showing entitlement by the greater weight of the credible evidence.
Brian Doucet worked as a D operator for Island Operating Company on a fixed offshore oil platform on the Outer Continental Shelf. Doucet had a heavy work day on July 15, 2008, lifting, carrying, and exchanging fire extinguishers. He woke up the next day suffering back pain. Doucet says he told the lead man his back hurt but did not report an injury. Administrative Law Judge Patrick Rosenow states in his findings that Doucet was credible in his explanation that Doucet thought he slept wrong and did not relate his pain to the fire extinguisher work. This despite an Island Operating supervisor who testified that Doucet told him it was an old back injury and he might have aggravated it. Also, prior to the incident Doucet told a doctor he was seeing for flu symptoms that he had a spinal condition that occasionally hurt. However, Doucet passed a pre-employment physical and there was no evidence of back complaints prior to the fire extinguisher incident. The judge found that Island Operating had not rebutted the presumption of causation, and, as a result, Doucet was entitled to medical and total disability benefits.
Island Operating and its insurance carrier LWCC appealed, arguing that Judge Rosenow should have found that there were preexisting back injuries and that the presumption was rebutted. The Benefits Review Board and Fifth Circuit affirmed the award. Appellate bodies cannot re-weigh evidence or determine facts. Appellate review is limited to determining whether evidence exists to support the ALJ's findings. The Fifth Circuit affirmed, holding that there was evidence in the record supporting the ALJ’s findings because:
• Doucet and his wife testified that Doucet never had back problems prior to July 18, 2008.
• Doucet testified that he had no trouble completing pre-employment assessment.
• The ALJ found Doucet’s testimony "very credible."
• Doucet never missed a day of work because of back pain prior to the day in question.
• Although the record contained some conflicting evidence of preexisting back problems, the appeals court could not re-weigh that evidence.
Bottom line: the employer’s threshold to rebut the presumption is low but must be met by producing relevant evidence. Here, the trial judge thought the limited evidence of a prior back injury was too scant to rebut the presumption.
Crawford’s employer and its LHWCA carrier, Louisiana Workers' Compensation Corporation (LWCC), argued Crawford’s stroke was a preexisting condition that was unaffected by his work. Crawford had pre-existing conditions that could have caused or contributed to his stroke: coronary artery disease, diabetes, cardiomyopathy, hyperlipidemia, tobacco use and high blood pressure. Crawford v. Island Oper’g Co., et al., BRB No. 10-0688 (July 8, 2011).
The Section 20 presumption determined this case. Administrative Law Judge Rosenow found that the stroke was unrelated to his work. However, Judge Rosenow found that Crawford invoked the Section 20 presumption of compensability because his stroke was aggravated by the delay in his receipt of treatment because Crawford was unable to leave employer’s platform. The aggravation rule requires an employer "to compensate an employee for the full extent of the employee's disability, including any preexisting disability that the work-related injury worsens." Strachan Shipping Co. v. Nash, 782 F.2d 513, 515 (5th Cir. 1986). Judge Rosenow found LWCC offered no evidence to rebut the presumption of an aggravation, and, therefore, the stroke was compensable.
LWCC’s argument on appeal was that Section 20 presumption should not have been invoked -- delay did not make Crawford’s stroke worse because the damage was already done. Dr. Wael Karim, a neurologist who treated Crawford, testified that Crawford’s stroke would cause permanent and irreversible damage, except in some cases where blood thinner is administered within three hours of the stroke's onset. However, the Fifth Circuit said that Dr. Karim also testified that a stroke victim should receive treatment as soon as possible to possibly reverse some of the damage caused by the stroke. Also, post-stroke treatment includes controlling a patient's blood pressure, diabetes, and stopping the patient from smoking to try to avoid further damage.
Judge Rosenow found Crawford’s stroke was progressed in part by delay. The Fifth Circuit affirmed the award of LHWCA benefits because LWCC failed to rebut the presumption of compensability. The appeals court said Crawford’s case was not like Charpentier's heart attack – an earlier case decided by the Fifth Circuit. The medical evidence in that case showed that Charpentier’s heart attack would have escalated to a fatal cardiac arrest no matter where he was at that time, with the possible exception of the hospital." Ortco Contractors, Inc. v. Charpentier, 332 F.3d 283, 291 (5th Cir. 2003). That same medical evidence was not present in Crawford’s case to rebut the presumption.
Island Operating Co. v. Dir., Office Worker's Comp. Programs, 2012 U.S. App. LEXIS 3037 (5th Cir. Feb. 16, 2012)(unpublished).
On January 27, 2012, the Benefits Review Board confirmed in an unpublished opinion that when a worker sustains a non-work-related injury following a work-related injury, such as a stroke, the employer is relieved of liability for disability due to this intervening cause. Barnes v. Kinder Morgan, Inc., BRB No. 11-0339, Slip. Op. at 3 (January 27, 2012)[citation omitted]. However, the employer remains liable for any disability that is related to the original work injury. Here are two examples from cases decided under the LHWCA.
Rodney F. Barnes, Jr. fell on ice at work on January 6, 2004, and tore his left rotator cuff. He returned to light-duty work for six months and then was off work due to surgery. He returned to full-duty work on December 15, 2004, after recovery from the shoulder surgery. Barnes was told to “self-limit” for activities that might hurt his shoulder. Before he reached maximum medical improvement (MMI), he had a stroke. The administrative law judge awarded continuing permanent partial disability benefits despite the stroke. On appeal, the Benefits Review Board said that Barnes bore the burden of showing permanent loss of wage-earning capacity due to the shoulder injury; the stroke is not relevant to that determination. Barnes, Slip. Op. at 6.
The key proof: Barnes worked an increasing number of hours before his stroke, logging 14 hours the last day before his stroke on December 26, 2004. Barnes’ treating physician Dr. Brenneke concluded on February 2, 2005 -- after his stroke -- that Barnes’ shoulder reached MMI, and the doctor did not impose any work restrictions for the shoulder. The Board rejected the administrative law judge’s finding of disability after Barnes reached MMI. Barnes was disabled due to his stroke. Barnes had no shoulder-related permanent partial disability after February 2, 2005. The trial judge’s award of benefits after that date was reversed.
In an earlier, more complicated case, J. Tracy suffered compensable cumulative trauma to his hands and arms from work with an employer, Keller Foundation, up to the time he left in 1997. He had a heart attack in 2002 while he was working as a seaman for another employer. Therefore, Tracy was not covered by the LHWCA for the 2002 heart attack. Tracy sought total disability compensation for his upper extremity problems caused by his work at Keller. Keller showed evidence of suitable alternative employment as a security guard, which the administrative law judge found Tracy was capable of doing. The ALJ properly found – and the Board affirmed – that Tracy’s disability from his heart attack should be excluded. He should be treated as if he did not have disability from his heart attack. J.T. [Tracy] v. Global Int’l Offshore, Ltd., 43 BRBS 92 (2009). Tracy’s heart attack was a subsequent non-covered event, the restrictions from which are severable from those related to the work-related arm injury. The Board affirmed the finding that he was temporarily and partially disabled from the 1997 hand/arm restrictions, rejecting Tracy's argument that he was totally disabled.
How do you dissect and separate the non-compensable disability? In a wage-loss (general injury) claim, doctors should be careful to specify their work restrictions on a Work Restriction Evaluation (OWCP-5) as if the worker did not have the subsequent condition. Employers should be vigilant to ensure disability from the non-work-related condition does not creep into the work restriction due to inattention by the doctors. Vocational counselors should find jobs that match the worker’s restrictions associated with the work-related condition alone without consideration from disability from the post-injury event. To be successful, dissect the disability between the compensable and non-compensable condition. Support your position with medical and vocational evidence to ensure a good result.
11th circuit 9th circuit Aggravation Rule Amclyde Average weekly wage Bienvenu Boroski CMS Churchill Credit Intoxication defense L-MSA LHWCA Longshore Report of Injury Longshore situs Longshore Maintenance and cure New Orleans Depot OCSLA Outer Continental Shelf Lands Act Roberts Section 10(a) Section 10(c) Section 20 Presumption Stroke Supreme Court Townsend Tracy Valladolid actually incurred adjoining area compensation container repair disability dollar-for-dollar dr. seidemann exclusion extraterritorial hearing loss intervening cause jones act joseph tracy liability MSA longshore act longshore status manderson maritime punitive damages maximum compensation rate mcbride v. estis pai or incurred percentage of responsibility presumption ramos rate rebuttal recreational vessel seaman situs status substantial nexus unseaworthiness winchester test winchester zepeda mixed-use facility zepeda