by Matthew H. Ammerman on June 14th, 2013

I used to say that Longshore situs in the Fifth Circuit was like horseshoes and hand grenades -- close enough was good enough. No more.

On April 29, 2013, an en banc panel of the U.S. Court of Appeals for the Fifth Circuit held in the Zepeda case that a Louisiana chassis-repair facility 300 yards from the waterfront was not a covered LHWCA situs. Juan Zepeda claimed a hearing loss injury while working at the facility, which was was physically separated from the waterfront and surrounded by other industrial businesses. The Fifth Circuit overruled the longstanding decision in 1980's Winchester case that held that an “adjoining area” did not actually have to touch navigable waters to be a covered situs. 33 U.S.C. § 903(a). The worker in Winchester was injured at a gear room 5 blocks from the gate of the nearest dock and separated from the waterfront by public streets and other private property.

The court's new decision relies on the plain language of the LHWCA that states that specific sites adjoining navigable waters such as as a pier or wharf are covered plus an "... adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel." 33 U.S.C. § 903(a)(emphasis added).

The en banc Fifth Circuit followed the language of the Act and gave the normal meaning to “adjoining” as the Fourth Circuit did in 1995. A covered adjoining area must border on or be contiguous with navigable waters. New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs [Zepeda], 2013 U.S. App. LEXIS 8674 (5th Cir. Apr. 29, 2013).

Put away the hand grenades.

by Matthew H. Ammerman on April 22nd, 2013

Gary Schwirse's job at Marine Terminals was to remove cones and guide container trucks through the facility as part of unloading. On the date of his accident, he drank 2 beers before work, 3 beers during the morning shift, 4-5 beers at lunch, and the greater part of a pint of whiskey after lunch. He finished his work early and drank beer near the transport van. He walked away from the van to relieve himself and fell over a rail onto the concrete below. Schwirse sought LHWCA benefits for his injuries.

Schwirse had no recollection of the fall. The employer’s safety man investigated and saw no slippery substances, cones, or other obstructions near the site of the accident.

This may sound like an easy case. But it is not due to the employer's burden to prove the intoxication defense. The employer must clear two hurdles: (a) overcoming a presumption in favor of the worker that intoxication was not the sole cause; and, (b) meeting its burden of showing that intoxication was the sole cause of the injuries. 33 U.S.C. § 903(c).

Administrative Law Judge Torkington first rejected the employer's intoxication defense and awarded LHWCA benefits because of the lack of direct evidence of the chain of events and because his fall may have been caused by his carelessness. The Board reversed, however, holding that the judge failed to review all the relevant evidence. On remand, Judge Torkington found Schwirse’s claim was barred because his injury was due solely to intoxication, in part due to the evidence that Schwirse did not trip over a cone as he claimed. Claimant appealed.

The U.S. Court of Appeal for the Ninth Circuit affirmed Judge Torkington's denial of LHWCA benefits in a short, unpublished opinion. Schwirse argued that the concrete and metal slab upon which Schwirse fell was the cause of his injury not his intoxication. The Ninth Circuit panel rejected that argument because it would render the intoxication defense "insignificant, if not wholly superfluous." There was substantial evidence supporting Judge Torkington's finding that Marine Terminals rebutted the presumption of compensability, and that Marine Terminals did not have to rule out every other possible cause -- such as Schwirse's argument that the ground caused his injuries. The appeals court went on to say that there was sufficient evidence supporting the judge's finding that intoxication was the sole cause of Schwirse's injuries. The denial of LHWCA benefits was affirmed.

Schwirse v. Dir., OWCP, 496 Fed. Appx. 734 (9th Cir. October 23, 2012).

by Matthew H. Ammerman on September 21st, 2012

The LHWCA has been interpreted to encompass the navigable waters of foreign countries despite the plain language of the Act that states an injury must occur on the "navigable waters of the United States." Here, Joseph Tracy worked as a barge foreman in Indonesia and Singapore. Tracy argued he was entitled to LHWCA benefits because his injuries occurred while he was on the "high seas." The "high seas" are referenced in an obscure section of the Act concerning the establishment of compensation districts. Tracy argued that meant Congress intended to include injuries that occurred outside the U.S. The U.S. Court of Appeals for the 9th Circuit disagreed with Tracy, holding that an injury in the waters of another country cannot support LHWCA coverage. There is a presumption against applying the laws of the U.S. extraterritorially. The court seems to leave the door open for injuries that might occur on the high seas that are uncontrolled by another country -- leaving that fight for another day.

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).

by Matthew H. Ammerman on August 27th, 2012

The work place in both of these recently decided cases was a container repair facility.

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.

Posted on June 27th, 2012

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:

by Matthew H. Ammerman on June 13th, 2012

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

by Matthew H. Ammerman on March 10th, 2012

The LHWCA’s Section 20 presumption in favor of the worker flips the burden of proof. If the presumption is not rebutted by the employer with substantial evidence, the worker will be entitled to benefits. Disputes often center on causation-- was the problem really caused or aggravated by work? To evaluate, determine if there is proof (not speculation) that the worker’s symptoms are not caused by work. This recent unpublished opinion from the Fifth Circuit is an example of what happens when the employer does not produce sufficient rebuttal evidence. Island Operating Co. v. Dir. OWCP [Doucet], 2012 U.S. App. LEXIS 3714 (5th Cir. February 24, 2012).

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.

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