LHWCA CASELAW SUMMARY

Transcription

1 SATHER BYERLY & HOLLOWAY LLP ATTORNEYS NORMAN COLE Licensed in Oregon Direct Dial: LHWCA CASELAW SUMMARY Decisions published in Westlaw.com through April 20, 2012 Distributed, April 22, 2012 Attorney Fees - Amount Partial augmentation of fee due to delay services paid at 2008 rates, but regular rates for 2006 and 2007 services. Stramiello v. Service Employees International, Inc., 2012 WL (BRB , 2012) (unpublished). In a July 9, 2008 order, District Director Staats awarded attorney Charles Robinowitz $240.00/hour and awarded his legal assistant $120.00/hour. Claimant appealed, and the Board vacated and remanded for determination of a rate consistent with the Christensen and Van Skike decisions. On remand, the District Director awarded fees identical to rates allowed in the Christensen cases, i.e., $ for 2007, $ for 2008, $384 for 2009, and $392 for On appeal, claimant sought further augmentation to account for delay. The Board concluded the delay in receiving a fee award on July 2008 for services in 2006 and 2007 was not so egregious or extraordinary to require a delay enhancement. Further delay in payment was due to the appeals of the fee award, so no enhancement is appropriate. More than two years elapsed between the time of services in 2005 and the order in July An augmentation of the hourly rate for 2005 services is appropriate services should be $370, the rate in effect in Ninth Circuit affirms $309/hour for attorney Robinowitz, $ for legal assistant. Eberly-Sherman v. Department of Navy, 2012 WL72229, (9 th Cir 2012) (unpublished). BRB awarded $309/hour for attorney Robinowitz and $110.00/hour for his legal assistant. The court affirmed, finding: (1) BRB did not error in refusing to place Robinowitz in the top 10% of his peers. The ALJ had an opportunity to observe Robinowitz filings in the fee proceeding and had access to the record. A different ALJ observed Robinowitz had made sophomoric, careless, and egregious errors in his representation. (2) ALJ could consider rates charged by workers compensation attorneys in calculating hourly rate because ALJ determined workers compensation practice required legal skills similar to those required by a LHWCA practice. (3) ALJ could consider Oregon market rates instead of Portland market rates. The district court was located in Portland, but its jurisdiction includes the entire state of Oregon. Robinowitz 111 SW Fifth Avenue Suite 1200 Portland, OR Tel.: Fax:

2 PAGE 2, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH APRIL 20, 2012 failed to submit satisfactory evidence proving an hourly rate for attorneys providing similar services to Longshore Act work was higher in Portland than in the rest of Oregon. Attorney Fees Entitlement Fee allowed when employer waited more than 30 day for information needed to determine amount due. Prestly v. Electric Boat Corporation, 2012 WL (BRBN , 2012) (unpublished). On November 10, 2010 the District Director served employer with claimant s cumulative trauma claim. On December 21, 2010 Dr. Willetts concluded claimant had a 5% impairment of each knee, with a portion due to work activities. Counsel forwarded the report to the district director January 6, 2011, and on January 19, 2011 employer paid compensation without an award consistent with the rating. Claimant s counsel sought a fee. Employer argued it did not decline to pay. It paid upon receipt of Dr. Willetts report because until then it did not know how much to pay. The Board held claimant s attorney was entitled to a fee because there was no payment within 30 days. Its inaction during the 30 day period after receipt of notice of claim meant it declined to pay per 28(a). Nothing in the Act requires claimant to submit evidence of disability or impairment with the claim for compensation. According to the Board, the 30-day period allows an employer sufficient time to have a claimant examined and to determine whether to pay or controvert the claim. 28(b) fee denied (5 th Circuit decision). Rochelle v. East Coast Cranes & Electric, Inc., 2012 WL (BRB (2012) (unpublished). Employer initially paid compensation but later disputed the nature and extent of disability and entitlement to medical services. Following an informal conference the District Director did not recommend employer take any action but later recommended employer authorize certain treatment, and employer informed the district director it would allow such treatment. At a hearing before the ALJ claimant was partially successful. The ALJ denied a fee and the Board affirmed. As there was no conference or written recommendation regarding any dispute over the timely payment of Dr. Steuer s medical bills, and employer complied with the district director s recommendation to authorize treatment, the criteria for fee liability under 28(b) was not met. Causation - 20 Presumption. COPD symptomatically but not permanently aggravated by work. Presumption not rebutted. Lamon v. A-Z Corporation, 2011 WL (BRB No , 2011). Claimant worked as welder for several employers and stopped working September 2007 when diagnosed with severe, disabling chronic obstructive pulmonary disease. He alleged his COPD had been caused or aggravated by occupational exposures to welding fumes and smoke. Dr. Tudor testified occupational inhalation of dust and fumes was at least part of claimant s progressive respiratory symptoms and lung function decline, but it did not result in a permanent worsening. The ALJ and Board agreed this was sufficient to invoke the 20(a) presumption and also held testimony from Dr. Tudor and another physician that claimant had no permanent worsening of the underlying disease was insufficient to rebut the presumption because both doctors attributed exacerbations of the

3 PAGE 3, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH APRIL 20, 2012 COPD to work exposures. As neither physician opined claimant s working conditions did not aggravate the symptoms of claimant s COPD and, in fact, stated that it did, the ALJ properly concluded employer did not meet its burden of producing substantial evidence sufficient to rebut the 20(a) presumption. Defense Base Act DBA precludes intentional tort claim against employer. Fisher v. Halliburton, 667 F.3d 602 (5 th Cir 2012). Spouses and family members of civilian drivers of a US military supply truck convoy in Iraq filed suit against Halliburton, Kellogg Brown & root and various subsidiaries and affiliates (collectively KBR) who employed the decedents. The court held employment was subject to the Defense Base Act, and the DBA barred plaintiffs from pursuing the claim. Although plaintiffs argued KBR committed an intentional tort by failing to act to protect plaintiffs from substantially certain injury, the district court held there was no evidence in the record supporting the proposition KBR desired any of the drivers be injured or killed in an attack by Iraqi insurgents. The Court held plaintiffs could not proceed with an intentional tort claim. The DBA precludes an injured employee from recovering from his employer under a substantially certain theory of intentional tort liability. This decision did not apply to a situation in which an employer personally assaults an employee or conspires with a third party to inflict an assault. Discrimination Discrimination finding affirmed. Reinstatement decision postponed. Ventura v. Marisco, Ltd., 2012 WL (BRB , 2012) (unpublished). Following compensable injury employer was terminated for his failure to comply with employer s sick-line policy (an obligation to call in daily). The ALJ concluded the callin policy was a pretext to terminate claimant, constituting a violation of 49. Employer did not consistently apply its call-in policy. ALJ ordered claimant reinstated and remanded to the District Director to calculate a back pay award and assessed a $5,000 penalty. Substantial evidence supported the finding of discriminatory animus, but the Board also remanded the claim to the ALJ to obtain evidence regarding periods when claimant was not entitled to receive TTD and therefore would be entitled to back pay. If claimant has reached maximum medical improvement and cannot resume his former work, the ALJ should terminate the order of back pay and reinstatement. Hearings Evidence. Causation - 20 Presumption Evidence in LHWCA claim not subject to Daubert standard. Dill v. Service Employees International, Inc., 2012 WL (BRB , 2012) (unpublished). Surviving spouse sought compensation for death allegedly due to occupational stress, resulting in suicide. The ALJ concluded death was due to an irresistible suicidal impulse, and not by a willful intent to kill himself. In doing so, ALJ applied Daubert v. Merrell Dow Pharm., Inc., 509 US 579 (1993), a decision dealing with admissibility of scientific evidence, and concluded the opinion of Dr. Whyman was scientifically

4 PAGE 4, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH APRIL 20, 2012 unreliable and consequently inadmissible to rebut the 20(a) presumption. The Board remanded for further consideration. The ALJ is not bound by common law or statutory rules of evidence or technical or formal rules of procedure, per 23(a), and the ALJ should admit relevant evidence, i.e., evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Exhibit excluded. Violation of pretrial order. Collins v. Electric Boat Corporation, 2011 WL (BRB , 2011). At an August 10, 2010 hearing employer sought introduction of letter written July 26, 2010 by Dr. Garrahan in response to ex parte communication from employer s claims adjuster and disclosed eight days before the hearing. Claimant s attorney objected because it was not timely exchanged in compliance with the pretrial order. The ALJ excluded the letter. The BRB affirmed exclusion, noting the ALJ had discretion to exclude even relevant and material evidence for failure to comply with the terms of a pretrial order. Employer did not demonstrate due diligence in developing its evidence and did not prove the ALJ s ruling was arbitrary, capricious, or an abuse of discretion. OCLA OCLA coverage extends beyond continental shelf. Pacific Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680 (2012). Employee spent 98% of his time working on an offshore drilling platform on the Outer Continental Shelf but was killed in an accident while working at employer s onshore facility. His surviving spouse sought compensation under the LHWCA, as extended by the Outer Continental Shelf Lands Act (OCSLA). The OCSLA covers disability or death resulting from an injury occurring as the result of operations conducted on the outer Continental shelf. The Court held the Act did not require an injury occur on the outer Continental Shelf. Rather, coverage extends to any injury, regardless of where it happens, as long as it occurs as a result of operations conducted on the outer Continental Shelf. Claimant must establish a substantial nexus between the injury and the extractive operations on the outer Continental Shelf. The court acknowledged its test may not be the easiest to administer, but the ALJ and courts should be able to determine if an injured employee established the required significant causal link. Penalties Enforcement Discussion of enforcement procedure and options. Brown v. Avondale Industries, Inc., 2012 WL (BRB, , 2012) (unpublished). Claimant alleged prior awards had not been paid in full and asked an ALJ to order payment plus a penalty. Per 18(a), a claimant may, within one year of an alleged default, apply to the district director for a supplemental order declaring default and after obtaining the order may obtain enforcement in federal district court. An employer is in default if payment has not occurred within 30 days of filing. 21(d) authorizes a claimant to apply to the district court for enforcement of a compensation order that has become final. An order becomes final within 30 days after it is filed. The ALJ concluded 18(a)

5 PAGE 5, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH APRIL 20, 2012 was inapplicable because claimant had not sought a supplemental order declaring a default within one year of the alleged default, and claimant s remedy was to seek enforcement in federal district court per 21(d). On appeal, the Board held some alleged payments were not in default, but claimant had timely requested review of PTD payments within one year, and the ALJ was required to make findings of fact. Permanent Disability PTD. Maximum and Minimum Compensation. TTD and PPD subject to maximum compensation rate on date of injury. PTD subject to maximum compensation rate during period of entitlement, rather than maximum compensation rate on date PTD is awarded. Roberts v. Sea-Land Services, Inc., 132 S. Ct. 2012, (2012), affirming Roberts v. Director, OWCP, 625 F.3d 1204, 2010 WL (9 th Cir 2010). Claimant was injured on February 24, At time of injury his average weekly wage was $2,853.08, and the maximum compensation rate was $ Per an October 12, 2006 Decision and Order, claimant was awarded periods of TTD, PTD, and PPD, but never more than the maximum compensation rate as of the date of injury: Type Period Rate Awarded Max Comp Rate TTD 03/11/02 09/30/02 $ $ TTD 10/01/02 09/30/03 $ $ TTD 10/01/03 09/30/04 $ $1, TTD 10/01/04 07/11/05 $ $1, PTD 07/12/05 09/30/05 $ $1, PTD 10/01/05 10/09/05 $ $1, PPD 10/10/05 continuing $ $1, (When awarded PPD, claimant s residual earning capacity was $ per week, which would have yielded PPD of $1, but for a maximum compensation limit.) 6(b)(1) states the rate of compensation shall not exceed 200% of the applicable NAWW. 6(c) states determinations [of the NAWW] with respect to the period shall apply to employees * * * currently receiving compensation for PTD * * * during such period, as well as those newly awarded compensation during such period. Newly awarded compensation means newly entitled to compensation. Because claimant became newly entitled to compensation in fiscal year 2002 (March 11, 2002), the ALJ properly applied the 2002 fiscal year maximum ($966.08) to compensation for TTD and PPD rather than the maximum compensation rate on October 12, 2006, when the ALJ formally awarded compensation. Regarding PTD, claimant was entitled to receive PTD from July 12, 2005 through September 30, 2005 and from October 1, 2005 through October 9, Claimant was entitled to receive compensation subject to the maximum compensation rate in each period ($1, and $1,073.64).

6 PAGE 6, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH APRIL 20, 2012 Awarded PTD because symptoms would return if returned to work. Lamon v. A-Z Corporation, 2011 WL (BRB No , 2011). Claimant worked as welder for several employers and stopped working September 2007 when diagnosed with severe, disabling chronic obstructive pulmonary disease. He alleged his COPD had been caused or aggravated by occupational exposures to welding fumes and smoke. Dr. Tudor testified occupational inhalation of dust and fumes was at least part of claimant s progressive respiratory symptoms and lung function decline, but it did not result in a permanent worsening. After concluding claimant s condition was compensable because employer had not rebutted the 20(a) presumption, because no doctor opined claimant s working conditions did not aggravate the symptoms of claimant s COPD, the Board approved an award of PTD. That claimant s symptoms may be alleviated by a departure from the workplace does not support a finding the work related aspect of the condition has resolved. Medical opinions that claimant s return to work is contraindicated due to the likely exacerbation of an underlying condition will support a prima facie case of total disability, even if the underlying disease is not permanently worsened by the exposures. Permanent Disability Vocational Evidence ALJ should evaluate labor market survey even if claimant working. Bartley v. Service Employees International, Inc., 2012 WL (BRB , 2012) (unpublished). ALJ awarded PPD based on earnings at Target. Employer offered a labor market survey which, it argued, established a higher earning capacity than actual post injury earnings. The ALJ did not discuss the report and relied instead on actual wages. The Board remanded. That post injury employment was regular and continuous does not preclude employer from proving claimant could earn higher wages on the open market. The ALJ must consider the labor market survey before determining claimant s residual earning capacity. ALJ may not assume use of narcotics limits employment options. Farlow v. Electric Boat Corporation, 2012 WL (BRB , 2012) (unpublished). Employer petitioned for modification as of date claimant completed computer training classes. The ALJ concluded employer failed to establish availability of suitable alternative employment because the surveys failed to consider claimant s narcotic pain medication as a medical limitation. On appeal, Employer argued medical evidence did not impose any work restrictions due to his drug regimen. The BRB vacated the ALJ s decision because doctors had not placed restrictions on employment due to the medication regimen, and the ALJ did not rely on claimant s testimony to identify any physical restrictions due to medications. On remand, the Board directed the ALJ to determine claimant s physical restrictions and vocational factors and compare them to the requirements of the jobs identified in the labor market surveys to determine if employer established the availability of suitable alternative employment. If employer established the availability of suitable alternate employment, the ALJ must determine if claimant diligently pursued work opportunities but was unable to secure a position.

7 PAGE 7, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH APRIL 20, 2012 Status Integral Employment ALJ must decide if security guard work was integral to employment. Decision inadequate for review. Gelinas v. Electric boat Corporation, 2011 WL (BRB , 2011). Claimant was a security guard at a facility where employer constructed submarines. He also was required to respond, as a consequence of his EMT certification, to medical incidents which occur at employer s facility. He filed a claim for hearing loss. 2(3)(A) excludes coverage for any individual employed exclusively to perform security work. The ALJ concluded he lacked coverage because his additional duties as an EMT were not maritime in nature. The BRB found the ALJ s decision inadequate for review because the ALJ did not cite case precedent relevant to security guards and did not discuss evidence concerning claimant s job duties. On remand, the ALJ was instructed to determine if claimant s work was integral to the shipbuilding process and explain his findings. Vocational Rehabilitation Rehabilitation plan affirmed. Burgess v. Service Employees International, Inc., 2012 WL (BRB , 2012) (unpublished). Employer appealed a Rehabilitation Plan and Award allowing a two year training program. It contended retaining was not necessary because it established the existence of other employment and claimant would not substantially increase earning capacity through training. The Board affirmed. Employer did not prove the district director abused his discretion or failed to comply with regulatory criteria. The identification of alternative jobs does not preclude claimant from participating in training, make retraining unnecessary, or make him ineligible for the program.