How To Determine Compensation For A Work Injury

Transcription

1 SATHER BYERLY & HOLLOWAY LLP ATTORNEYS NORMAN COLE Licensed in Oregon Direct Dial: LHWCA CASELAW SUMMARY Decisions published in Westlaw.com through December 10, 2012 Distributed December 18, 2012 Attorney Fees Amount Request to depose attorney regarding fee petition denied. Nichols v. Ceres Marine Terminals, Inc., 2012 WL (BRB , 2012) (unpublished) Employer filed objections to claimant s fee petition and sought to depose counsel and those attorneys from whom he obtained supporting letters regarding hourly rates. The ALJ denied the request to depose the attorney and quashed subpoenas. The Board affirmed. Fee requests should not result in second major litigations. As both parties submitted evidence of market rates that complied with the evidence the 4 th Circuit has deemed sufficient, employer did not establish error or an abuses of discretion. Fee reduction for lack of success must consider degree of success. Huggins v. Massman Traylor Joint Venture, 2012 WL (BRB , 2012) (unpublished). The ALJ concluded claimant s knee and back conditions, but not a psychological condition, were compensable and awarded TTD followed by PTD. The ALJ reduced the hours claimed for securing disability and medical services 40% due to limited success regarding the psychological injury claim. On appeal, claimant objected to the 40% reduction. The Board reversed and remanded. When claimant prevails on some, but not all claims, the ALJ must apply a two part analysis. First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? In this claim, the ALJ concluded there were no severable issues. When looking at the second prong, the ALJ failed to assess claimant's success in terms of the results obtained. Claimant was awarded PTD, which is the fullest recovery of disability compensation possible, irrespective of the ALJ s finding that the claimant s psychological condition was not work-related. On remand the ALJ must determine claimant s success based on the results achieved and not solely on the basis of successful issues. The administrative law judge then must assess the fee request in terms of this success. 111 SW Fifth Avenue Suite 1200 Portland, OR Tel.: Fax:

2 PAGE 2, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 Charles Robinowitz attorney fee decisions. Below is a partial summary of 2012 attorney fee award to Charles Robinowitz. Note: some awards were based on the 2006 Oregon State Bar Economic Survey. None were based on the most recent OSB economic survey published in 2012 at Per the 2012 survey, the average hourly rate for attorneys engaged in civil litigation was $ for the 75 th percentile and $ for the 95 th percentile Source Decision Conclusion ALJ Pulver ALJ Clark, affirmed by BRB ALJ Clark ALJ Dorsey ALJ Dorsey ALJ Berlin, affirmed by BRB ALJ Berlin, affirmed by BRB Selthon v. Jones Stevedoring (OALJ 2006-LHC-00980, February 8, 2012). Petitt v. Sause Brothers (OALJ 2008-LHC-00942, July 14, 2011); (BRB , August 8, 2012, unpublished). Osborn v. Dyncorp (2009- LDA-00363, July 18, 2012) Tucker v. West Coast Marine Cleaning (2011-LHC-00959, September 18, 2012) Modar v. Maritime Services (2006-LHC-00022, September 19, 2012) Wilson v. Honeywell (2010- LDA-00074, June 29, 2011; BRB , June 15, 2012, unpublished) Shirrod v. Pacific Rim Environmental Resources (OALJ 2008-LHC-01585, November 4, 2011; BRB , September 18, 2012, unpublished) $384; $ In a July 14, 2011 order, Judge Clark relied on Etchingham in DiBartolomeo, Judge Gee in Eberly Sherman, and Judge Berlin in Castillo v. Sundial 1 to award Robinowitz $316 for ALJ Clark placed Mr. Robinowitz in the 75 th percentile, per the 2006 OSB survey, with rates of $371; $368; $375. ALJ Dorsey awarded Mr. Robinowitz $350 per hour for services in ALJ Dorsey concluded Mr. Robinowitz market hourly rate in 2012 was $350. ALJ Berlin rationally awarded Mr. Robinowitz $316 per hour for 2010 services. He was in the top quartile, not the top 5% of attorneys. ALJ Berlin rationally concluded the market rate in 2011 was $340 per hour. He was in the top quartile, not the top 5% of attorneys. 1 Judge Gee s decision was appealed to the BRB and remanded February 23, 2012 for further consideration of the OSB Survey.

3 PAGE 3, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 Matthew S. Sweeting of Tacoma awarded fee based on OSB 2006 survey, 75 th percentile, adjusted to reflect lower cost of living in Tacoma. Anthony v. Washington United Terminals, 2012 WL (BRB , 2012) (unpublished). The District Director calculated a market rate fee based on the top quartile rates of attorneys who practice in the areas of general civil litigation and personal injury litigation in Portland, based on the 2006 Oregon State Bar survey. He then referenced Sperling s Best Places cost of living calculator, at which reflected as of May 12, 2011 the cost of living in Tacoma was 14% lower than in Portland, but he applied a 2007 rate for all services. On appeal, the Board affirmed the District Director s use of the OSB survey and the adjustment for Tacoma but held the rate must be adjusted from year to year based on the federal locality pay tables for Portland. This resulted in rates of $255 for 2007, $274 for 2009, and $280 for $2010. Attorney Fees Entitlement No fee when claimant unsuccessful. Diblase v. Logistec of Connecticut, 2012 WL (BRB , 2012) (unpublished). The sole issue at an informal conference was claimant s request for authorization for left shoulder surgery. After the informal conference, the doctors agreed surgery was not warranted. Despite having his shoulder condition further analyzed and treated with an injection, for which employer paid, counsel was not successful in obtaining the treatment claimant initially sought, i.e., surgery. As counsel s services did not result in benefits obtained for claimant, he is not entitled to an employer paid fee under 28(a) or (b). No fee when compensation paid within thirty days. Cimalore v. Electric Boat Corporation, 2012 WL (BRB ) (unpublished). On January 11, 2011 claimant filed a claim for hearing loss. The district director served the claim on employer on January 24, Employer accepted the claim and made its first payment of compensation on January 31, Claimant s counsel sought a fee for $1, The district director awarded a fee, and employer appealed. The Board reversed. Employer paid compensation within 30 days of receipt of the claim from the district director. No other controversy regarding entitlement to benefits arose. Average Weekly Wage - 10(a) 10(a) could not be applied when there was no evidence of the number of days worked or whether claimant was a five or six day per week worker, and when claimant only worked weeks before the the injury. Ciechorski v. Reicon Group,LLC, 2012 WL (BRB , 2012) (unpublished). 10(a) could not be applied because the record contained no evidence of the number of days claimant actually worked or whether he was a 5 or a 6 day worker. Also, he only worked weeks before the injury and did not work substantially the whole of the year immediately preceding the injury.

4 PAGE 4, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 Causation Intervening Injury Employer is not responsible for a subsequent non-subject injury unless the new injury is the natural or unavoidable result of the compensable injury. Callender v. Department of the Navy, 2012 WL (BRB , 2012) (unpublished). Claimant sustained compensable injuries on November 11, 2003 and February 27, 2005 when employed by the Department of the Navy. She had another on the job injury December 14, 2006 but did not file a claim for this and then two off the job injuries, February 14, 2007 and June 2, She became unable to work as of June 15, The ALJ concluded claimant was entitled to compensation due to the December 14, 2006 injury. The Board remanded. Because there was no claim for the 2006 injury, the ALJ erred by applying the standard for determining liability as between two covered employers, i.e., natural progression vs. aggravation, rather than determining whether an incident at claimant s subsequent employment constituted a intervening cause of her low back condition. The aggravation/last responsible employer rule extends only to determine liability among employers subject to the coverage provisions of the act. The employer is responsible for the natural or unavoidable result of the original injury. If the subsequent progression of the condition is due to an intervening cause, employer is relieved of liability for disability attributed to the intervening cause. Employer is not liable for compensation for the added injury. Causation - 20 Presumption Rebutting presumption requires evidence that could satisfy a reasonable fact finder the injury was attributable to a non covered cause. Truczinskas v. Director, OWCP, 699 F.3d 672 (1 st Cir 2012).. Claimant was found dead of asphyxiation in Saudi Arabia, where he worked for employer. His spouse filed a claim for death benefits. The ALJ denied the claim, and on appeal claimant contended employer did not rebut a presumption of compensability. Suicide was one possible explanation for death, and the other related possible explanation was not entirely speculative and would not give rise to coverage, namely misadventure. The ALJ said the cross dressing activity and the alleged affair with another woman may have generated internal conflict, explaining suicide. This same evidence made the misadventure explanation colorable as well. Suicide and misadventure were sufficient to counter the presumption against coverage. The substantial evidence test merely requires evidence that could satisfy a reasonable fact finder that the claimant s injury was attributable to a non covered cause.

5 PAGE 5, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 ALJ did not consider all evidence and imposed an improper burden on employer when concluding employer failed to rebut the presumption. Aubert v. American Sugar Refining, Inc., 2012 WL (BRB , 2012) (unpublished). The ALJ failed to address evidence which could establish claimant was not exposed to injurious noise levels at work, including testimony claimant wore hearing protection 100% of the time, did not have to raise his voice to communicate, and his ear plugs provided at least 13 decibels of protection. On remand the ALJ was told to address all of the evidence to determine if claimant was exposed to noise at work that could have caused his hearing loss. Dr. Gianoli testified it was highly unlikely exposure to noise at work caused claimant s hearing loss. The ALJ concluded this statement was insufficient to rebut the 20(a) presumption. The Board thought this conclusion was improper. Per Plaisance, all employer must do is advance evidence to throw factual doubt on the prima facie case. Having produced substantial evidence, the employer then casts the duty on the ALJ to weigh all the record evidence. Defense Base Act DBA claims are heard by an ALJ, with appeal to the BRB and then to the Circuit Court. Truczinskas v. Director, OWCP, 699 F.3d 672 (1 st Cir 2012). Claimant was found dead of asphyxiation in Saudi Arabia, where he worked for employer. His spouse filed a claim for death benefits. The matter was transferred to the district director s office in Boston, the location closest to the spouse s home, and adjudicated there. The ALJ denied the claim, and the BRB affirmed. Claimant appealed to the Circuit Court, contending there was no jurisdiction for the prior decisions. In 1941 deputy commissioner decision regarding injuries outside of the USA under the DBA were reviewed in the district court of the judicial district where the deputy commissioner who entered an compensation order was located. But, the act also provided the LHWCA applied, except as modified. Under 1972 amendments, an ALJ s decision was reviewed by the BRB and then by a circuit court. The 1 st Circuit held appeals in DBA claims go to the BRB and then to the Circuit Court, rather than to a district court. Relevant labor market for attorney fees in DBA claim is where the court sits. Mbule v. EOD Technology, Inc., 2012 WL (BRB , 2012) (unpublished). Ugandan national was injured in Iraq. His attorney was from Michigan. Employer was located in Tennessee. The insurer was located in Dallas, Texas, and its counsel was from San Francisco. There was no oral hearing. The ALJ was from Newport News, Virginia. The ALJ concluded the relevant community for determining a market hourly rate was where the court sits, i.e., Newport News, Virginia. The Board affirmed.

6 PAGE 6, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 Exclusions Other The injury due to intoxication was the cause of the accident rather than the mechanism of the injury. Schwirse v. Director, OWCP, 2012 WL (9 th Cir. 2012) (unpublished). Claimant fell on a concrete and metal slab. The ALJ concluded the injury was occasioned solely by the intoxication of the employee, but on appeal claimant argued the slab was the cause of the injury, not his intoxication. The BRB interpreted injury to mean the cause of the accident rather than the mechanism of the injury. The 9 th Circuit affirmed. Including the mechanism of the injury as a cause in addition to intoxication would render the intoxication exception insignificant, if not wholly superfluous. Hearings Other Issue can be raised at any time. Calvillo v. Profab Construction, 2012 WL , BRB , 2012) (unpublished). Claimant sustained a work related head injury. He subsequently filed a claim for PTD and medical benefits for cognitive and psychological problems. On appeal, employer argued the 20(a) presumption did not apply to claimant s consequential psychological condition. Instead, claimant had to prove, without benefit of the presumption, the psychological condition was the natural and unavoidable consequence of the initial injury. The Board agreed the 20(a) presumption attached only to claims made, but considerable literality is allowed in amending claims, and a claimant is not limited to issues raised in the initial filing. An ALJ may consider allegations raised in the prehearing statement, at the formal hearing, in briefs, or in other filings sufficient to put the employer on notice of additional injury or disability claimed. Here, the entirety of the claim concerned whether claimant s psychological and cognitive difficulties were caused or aggravated by the work related head injury. Employer was not surprised or prejudiced by this issue. Also, there was no subsequent condition here. The psychological and cognitive injures were directly caused by the injury to the head. The ALJ properly applied the 20(a) presumption. Interest Interest should be compounded annually based on the weekly average 1 year constant maturity Treasury yield, 28 USC 1961(a). Price v. Stevedoring Services of America, 697 F3d 820 (9 th Cir. 2012). The Court affirmed continued use of the 1 year constant maturity Treasury yield rate for calculating interest but concluded interest should be compounded annually, rather than calculated as simple interest. Maximum and Minimum Compensation Newly awarded means newly entitled. Boroski v. Dyncorp International, 700 F3d 446, (11 th Cir 2012). 6(c) provides determinations of the NAWW shall apply to employees or survivors currently receiving compensation for PTD or death benefits during such period, as well as

7 PAGE 7, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 those newly awarded compensation during such period. 10(f) provides persons who are PTD shall receive a yearly increase in relation to the increase in the NAWW. Claimant argued (1) newly awarded compensation meant the actual entry of a compensation award and (2) currently receiving compensation meant the time compensation was actually received. In an earlier decision, the 11 th Circuit agreed with claimant s first argument, but the Supreme Court vacated this decision in light of Roberts v. Sea-Land Services, Inc., US, 132 S. Ct (2012), wherein the Supreme Court held newly awarded compensation in 6(c) meant newly entitled to compensation. On remand, the 11 th Circuit considered claimant s second argument and concluded currently receiving meant currently entitled to compensation. Every worker with the same average weekly wage and disability therefore should receive the same amount, without regard to when an order is entered. This does not encourage employers to delay payment because workers are entitled to payment of interest on past due compensation. Maximum Medical Improvement Maximum medical improvement in spite of possibility of surgery. Jackson v. Ceres Gulf, Inc., 2012 WL (BRB , 2012) (unpublished). On appeal, employer argued claimant had not reached maximum medical improvement. The Board observed the date disability reaches permanency is a question of fact determined solely by medical evidence. If surgery is anticipated, maximum medical improvement has not been reached. If surgery is not anticipated, or if the prognosis after surgery is uncertain, the claimant s condition may be permanent. Here, the ALJ rationally concluded surgery was not anticipated, and claimant had sustained a permanent hearing loss. Medical Services Other ALJ thought ER visits represented drug seeking but on remand should consider totality of circumstances, including distance to the attending physician. Duncan v. Danos and Curole Marine Contractors, Inc., 2012 WL (BRB , 2012) (unpublished). ALJ concluded employer did not have to pay for emergency room visits at Thibodaux Regional and Terrebonne General hospitals. The ALJ viewed claimant s ER visits as necessitated by his desire to seek medication, and such visits did not result in hospitalization and were not reasonable or necessary. Claimant contended New Orleans, where his treating physician practices, was one hour from his home, and it was necessary for him to occasionally seek treatment closer to his residence. The Board held the ALJ should have considered whether, in light of the distance, claimant s complaints of pain required he occasionally seek treatment closer to his residence. Hospitalization was not required. Miscellaneous Employer cannot challenge 17 lien. Ronne v. Kinder Morgan Bulk Terminals, inc., 2012 WL (BRB , 2012) (unpublished). Claimant filed a claim against Jones. Jones joined Kinder, and Kinder joined Rogers. The ILWU-PMA Welfare Plan filed a lien application with the district director naming

8 PAGE 8, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 Jones but not Rogers. The ALJ directed claimant to repay the Plan for the money received from Rogers. Per 20 CFR (c), only the claimant may dispute the right of the trust fund to the lien or the amount stated. Thus, Rogers did not have standing to challenge the plan s lien on Rogers compensation liability to claimant. Permanent Disability Employer s Burden Lawful narcotics does not necessarily preclude employment. Johnson v. SSA Marine Terminals, LLC, 2012 WL (BRB , 2012) (unpublished). ALJ awarded PTD because, among other reasons, employer s vocational consultant did not inquire into the willingness of the employers to hire someone taking narcotic pain medication. The Board concluded the ALJ erred, because a vocational counselor is not required to contact prospective employers to inquire whether claimant s use of legal prescription medication would preclude his ability to pass drug testing and thus disqualify him from otherwise suitable employment, and the consultant had no obligation to address how claimant s condition might affect the workplace. It was not employer s burden to establish claimant will have to pass a preemployment drug test. There was no evidence employers tested prospective, disabled employees for legal, prescription drugs and no evidence claimant took a drug test in the past and failed due to legally prescribed drugs and had been denied employment as a result. The effects of medication is best limited to the physical restrictions resulting from the use of the medication. Situs Navigable Waters Foreign territorial waters are not a covered situs. Keller Foundation v. Tracy, 696 F.3d 835 (9 th Cir. 2012). Claimant initially worked for Global as a barge foreman on a barge in Louisiana. The Court concluded this was work as a Jones Act seaman. He was transferred to ports in Singapore and Indonesia, where he claimed to have had an injury upon the navigable waters of the United States because navigable waters includes high seas, and high seas included foreign territorial waters. The court disagreed. A determination the Act applies to the high seas, where no single nation is sovereign, cannot compel the conclusion Congress also intended the Act to apply to the territorial sea, internal waters, and adjoining land of other nations, all areas in which those nations exercise sovereign control. Foreign territorial waters and their adjoining ports and shore based areas are not the navigable waters of the United States. Status Integral Employment Work constructing pipeline which would be used to move oil to barges could provide status. Nguyen v. B.V. Weston Construction, LLC, 2012 WL (BRB , 2012) (unpublished). Before Hurricane Katrina, oil was pumped from storage tanks into barges for transportation to a refinery. The hurricane destroyed almost everything. Claimant worked for a contractor hired to reconstruct the facility. Claimant was injured when welding the pipelines that would be used to pump oil from the storage tanks to barges or trucks. The ALJ concluded claimant lacked status because his work was not integral to

9 PAGE 9, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 loading or unloading of vessels at time of injury. The ALJ did not discuss Manguia v. Chevron USA, Inc., 999 F.2d 808 (5 th Cir 1993), which held employment activities not intrinsically maritime in nature become maritime employment when undertaken to enable a ship to engage in maritime commerce. The ALJ must look to the purpose of the work and not solely to the particular skills used. As the ALJ did not discuss the relevant law, the BRB vacated the decision and remanded for consideration of whether claimant spent at least some of his time engaged in work integral to the loading of vessels. Status Significant Time Beach cleaner lacked status. Work was not in furtherance of maritime commerce.. Smith v. Labor Finders, 2012 WL (BRB , 2012) (unpublished). Claimant was hired as a temporary laborer to assist the cleanup of Horn Island, Mississippi following the oil spill resulting from the Deepwater Horizon explosion. He traveled to Horn Island on a transport vessel, on which he loaded his tools and supplies. After a minute trip, he unloaded his gear, set up a tent, put on his HazMat protection, and collected oil residue, oil balls, and other contaminants and pollutants on the beach, without going into the water, in bags or buckets for removal and disposal. He brought his buckets to a designated drop spot, where another crew dumped the buckets into bags or other containers and loaded them onto ships for disposal. A few times at the end of the day he carried some bags of debris onto the debris vessel. He would then board the transport vessel and return to the mainland. One day while returning to the transport boat, the trailer in which he was riding ran into another trailer, resulting in claimant s injury. The ALJ granted employer s motion for summary decision. The island was only used for recreational purposes. There was no loading, unloading, building, repairing, or dismantling of vessels on the island. Claimant did not routinely participate in loading buckets onto vessels. The Board affirmed. Although claimant collected debris which eventually was loaded on ships, claimant s work was not in furtherance of maritime commerce. The purpose of cleaning the island was to protect the wildlife preserve and enable reopening of the island for recreational purposes. Although claimant loaded and unloaded his tools and supplies, these items did not enable a vessel to engage in maritime commerce. Loading collected oil to the debris vessel was not part of claimant s regularly assigned duties, and it was not a duty he could be assigned pursuant to the cleaning contract.

10 PAGE 10, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH DECEMBER 10, 2012 Temporary Disability Entitlement Intervening and unrelated prostate cancer did not necessarily prevent claimant from receiving TTD. Macklin v. Huntington Ingalls Inc., 2012 WL (BRB , 2012). Claimant was disabled due to a compensable knee injury from December 4,2009 through December 17, Thereafter, he was released to return to work with restrictions due to the knee, but he did not return to work immediately due to newly diagnosed prostate cancer. The ALJ denied TTD from December 18, 2009 through February 23, 2010 because disability was due to the cancer. The Board remanded because an intervening cause does not cut off liability for disability attributable to the original injury and to the natural progression of that injury. The ALJ failed to address evidence relevant to the disabling effects of claimant s work related knee condition separate and part form the disability associated with the prostate cancer. That claimant was totally disabled by his cancer does not forecloses his entitlement to disability if the knee, considered alone, rendered him totally or partially disabled.