U. S. Department of Labor
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Compensation
201 Varick Street, Room 740
Post Office Box 249
New York, NY 10014-0249
FAX (646) 264-3002
All case-related mail thereafter, e.g., letters, medical, LS-206, LS-207, et al. should bear the OWCP number and be sent here AFTER the case is created:
U. S. Department of Labor
Office of Workers’ Compensation Programs
Division of Longshore and Harbor Workers’ Compensation
400 West Bay Street, Suite 63A, Box 28
Jacksonville, FL 32202
FAX (904) 357-4787
Checks payable to the DOL for penalties, etc. now go to the DLHWC’s Branch of Financial Management in Washington, D.C.
The details are in the notice available on the OWCP's website, along with FAQs here: http://www.dol.gov/owcp/dlhwc/index.htm#.UPcuHWc5ht0
Though not stated in the notice, the implication is that all correspondence will be scanned at the central repositories.
This should be interesting.
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.
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).
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.
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 maximum compensation rate pai or incurred percentage of responsibility presumption ramos rate rebuttal recreational vessel seaman situs status substantial nexus winchester test winchester zepeda