LHWCA CASELAW SUMMARY

SATHER BYERLY & HOLLOWAY LLP ATTORNEYS NORMAN COLE Licensed in Oregon Direct Dial: 503.595.2131 ncole@sbhlegal.com LHWCA CASELAW SUMMARY Decisions published in Westlaw.com through March 18, 2015 Distributed March 19, 2015 Attorney Fees Amount Charles Robinowitz (of Portland, Oregon) awarded $350/hour by ALJ Larsen. Oxford v. Jones Stevedoring Company, 2010-LHC-00519, -02187 (11/13/14, filed 11/19/14 OALJ decision). Charles Robinowitz sought $450 per hour for services from February 18, 2010 to June 10, 2013. ALJ Larsen awarded $350 per hour ($150 per hour for legal assistant), rejecting as relevant or persuasive affidavits from Mr. Goldsmith and Mr. Markowitz. He also criticized counsel for approaching the application as if it was a negotiation, demanding a rate higher than the evidence supports. He also reduced from 5.5 to 1.5 hours the time requested to prepare a fee petition, noting very similar petitions had been offered in other claims. When employer stipulated to pay reasonable attorney fees employer could not exclude services before controversion. Serfontein v Erinys International, 2014 WL 7249177 (BRB 14-0051 (2014) (unpublished). The parties agreed to settle the claim per 8(i) and pay reasonable attorney fees. Employer objected to pre-controversion services, among other objections. The ALJ reduced the requested rate, disallowed some entries, and disapprove pre-controversion work and costs Claimant appealed. The Board held when Employer stipulated to pay reasonable fees and costs it necessarily agreed to pay pre-controversion fees. irrespective of fee shifting provisions. [Note: In Dyer v. Cenex Harvest States Cooperative, 563 F.3d 1044 (9 th Cir 2009), the 9 th Circuit held a successful claimant is entitled to both pre and post controversion fees.] 61% reduction in fees because services were for collateral services, petition lacked specificity, services were unnecessary or duplicative, or were clerical. Costs denied because itemization was vague and inadequately documented. Heyden v. Chet Morrison, Inc., 2015 WL 1010143 (BRB 14-0090, 2015). 111 SW Fifth Avenue Suite 1200 Portland, OR 97204-3613 Tel.: 503.225.5858 Fax: 503.721.9272 www.sbhlegal.com

PAGE 2, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 ALJ approved a 8(i) settlement. Claimant s attorney sought $95,944.85 in fees, plus $2,600.61 costs. The ALJ reduced the fee 61% and denied all expenses. The reduction was not based on the degree of success, which was significant. The petition contained entries for collateral services, such as claimant s Jones Act claim and potential medical malpractice claim. Some items lacked specificity. Some were unnecessary, excessive, and/or duplicative, and some were clerical in nature. Costs were denied because the description was vague, merely listing photocopy charges, postage, records requests, employment records, filing fee, courier fee, medical records, online legal research, deposition costs, PACER costs, along with corresponding dollar figures expended for each. Claimant did not provide invoices or other information concerning the reasonableness and/or necessity of the expenses or statement as to whether the expenses are related to the Jones Act claim or the LHWCA claim The Board affirmed. Claimant did not demonstrate an abuse of discretion. The essential goal in shifting fees is to do rough justice, not to achieve auditing perfection. No reduced fee when claimant received de minimis award for asbestos disease. Palardy v. Electric Boat Corporation, 2015 WL 629544 (BRB 14-0158, 2015). Claimant sought 17% PPD for work related asbestos plaques and asbestosis, but the ALJ concluded claimant had no impairment and instead awarded medical benefits and a nominal award of $1 per week. Claimant requested $17,281.9 in fees for 35 hours of attorney time and 14.5 hours of paralegal services. The ALJ reduced the hourly rate requested and awarded $16,941.92 but did not discount the fee due to lack of success. The ALJ concluded disability and a medical claims were interrelated and based on a common core of facts regarding claimant s lung condition, and the overall relief was not insignificant in light of the modest number of hours claimed. The Board agreed the claimant achieved overall success in relation to the number of hours spent and employer did not establish an abuse of discretion in determining a limited success reduction was not warranted. Attorney Fees Entitlement ILWU-PMA Welfare Fund attorney awarded fee payable by Employer. Oxford v. Jones Stevedoring Company, 2010-LHC-00519, -02187 (11/13/14, filed 11/19/14, ALJ decision). In a controverted claim the ILWU-PMA Welfare Plan intervened to recover its lien. The claim was found compensable, and Employer (Jones) was ordered to pay compensation. The attorney for the Plan sought payment for 56.25 hours @ $250.00 per hour. Jones argued a medical provider or an insurer who intervened could receive fees, but the Plan should not receive fees because the ILWU-PMA cannot deny medical care to a claimant who signs an Agreement to Reimburse Benefits form, Jones is already funding ILWU- PMA under contract, and an award of fees would upset the calculus under which it does so. ALJ Larsen rejected these arguments and awarded fees. Fee claimant paid to state claim attorney in addition to compensation in state claim not owed by LHWCA carrier. Hunter v Huntington Ingalls, 2014 WL 5795791 (BRB 4-0029, 2014). Claimant pursued compensation for right and left knees under the LHWCA and the Virginia Workers Compensation Act. During an informal conference employer agreed to accept both knees and pay TTD. Employer also agreed to accept compensability under

PAGE 3, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 the state act, and the state commission issued an award for compensation, with credit for compensation paid in the LHWCA claim. No additional compensation was due because everything due had been paid in the LHWCA claim. The commission also directed claimant to pay her attorney $500 for additional services. Claimant paid the fee and asked employer for reimbursement. The ALJ denied the request, and Board affirmed. The 3(e) credit applies to amounts paid to claimant under another workers compensation law, but nothing was paid to claimant pursuant to Virginia s worker s compensation law. No 28(a) fee when employer paid two weeks PPD within 30 days. Woods v. Bunge North America, Inc., 2014 WL 724900 (BRB 14-0112, 2014) (unpublished). On June 4, 011 claimant filed a claim for hearing loss. Within 30 days of formal notice of the claim employer paid $1,71.36, representing two weeks of compensation, and authorized purchase of hearing aids. Ultimately the parties agreed to 17% binaural impairment. Employer paid 7.3% and the Special Fund paid the balance. Claimant s counsel requested, and the OWCP awarded, a fee based on the belief the initial payment was a token payment that did not constitute compensation within the meaning of 28(a). Employer appealed. The Board reversed, relying on Lincoln v. Director, OWCP 744 F. 3d 911 (4 th Cir. 2014), which held an employer need not pay all compensation to avoid payment of a fee under 28(a). Here, employer paid compensation tethered to the claim and did not decline to pay any compensation within 30 days. Whether the payment was intended as a mechanism to avoid attorney fees is immaterial when the payment was, in fact, compensation. The Board reversed the award of fees. Causation - 20 Presumption 20(a) presumption not rebutted by evidence claimant filed vague late report of injury. Wilhelmsen Technical Solutions v. Director, OWCP, 576 Fed Appx 301 (5 th Cir. 2014) (unpublished). ALJ concluded claimant invoked the presumption with respect to a specific incident on August 13 lifting an oil drum and subsequent employment related aggravation of his condition. Employer presented evidence regarding claimant s vague or delayed report of his injuries but did not offer evidence the work, which involved moderate to heavy physical activity, could not have caused or aggravated claimant s herniated disc. The ALJ held employer did not rebut the presumption. The Board affirmed. Evidence of the vague nature of claimant s report of his injuries did not constitute substantial evidence the August 13 accident could not have caused or aggravate claimant s injury. Employer made no attempt to show the nature of the work was not such that it could have caused or aggravated his back condition.

PAGE 4, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 Claimant not credible. Failed to prove injury. Partain v. Huntington Ingalls, Inc., 2014 WL 7249293 (BRB 14-0171, 2014) (unpublished). The ALJ addressed the totality of the medical and testimonial evidence and concluded claimant failed to establish an accident occurred on January 1, 2011, as claimant alleged. Claimant first reported the fall on February 3, 2011 but before that the had seen doctors and told them he fell in the snow in December 2011. A physician opined claimant s right rotator cuff injury was three years old. Having found claimant did not testify credibly to the occurrence of a January 2011 fall and that the medical evidence did not support his claim of a new injury, the ALJ concluded claimant did not fall in the parking lot before his shift on January 12, 2011. The BRB affirmed. Credit Other Claims Claimant had less impairment after prior settled injury but could still have compensable new injury. Employer could be entitled to credit Myshka v. Electric Boat Corporation, 2014 WL 435954 (BRB 14-0161, 2014). Claimant filed claims for bilateral injuries to hands and arms due to cumulative trauma as a welder. One examiner said he had 14% impairment of each hand. He settled the claims per 8(i). Thereafter claimant returned to work as a welder for employer and his hand problems worsened. He filed a new claim, had surgeries, and employer paid 5% PPD for the right arm and 2% for the right 4 th finger. The ALJ concluded claimant did not establish he sustained a new injury or aggravation of his right hand attributable to his work for employer. The Board reversed. That claimant may have had a lower impairment rating after his recovery from carpal tunnel release surgery than the prior 14% rating does not establish the absence of a work injury in 2011. If the ALJ concludes claimant has permanent hand impairment caused or aggravated by his employment with employer, the ALJ cannot deny the claim simply because the percentage of residual impairment after surgery is lower than that previously found. The credit doctrine provides the employer with a credit for the amount of the prior scheduled award against the liability for permanent partial disability resulting from an injury to the same schedule member. The employer receives a credit for the actual dollar amount of compensation paid of the prior injury rather than for the prior percentage of impairment. Death - Other Injury caused addiction, leading to death. Hamil v. Deltide Fishing and Rental Tools, Inc., 2014 WL 7249183 (BRB 14-0054, 2014) (unpublished). Decedent compensably injured his right fibula and ankle. Doctors prescribed narcotics for pain. Decedent sought and obtained additional narcotic pain medicine from other doctors and died due to an overdose. Decedent s children filed a claim for compensation for death. The ALJ concluded claimant developed a dependency on pain medication and death was the natural and unavoidable result of the work related ankle injury and not an intervening cause. The Board affirmed. With a minor exception the record reflected no narcotic drug use by the deceased before the work injury

PAGE 5, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 Death Qualified Beneficiary If initially living apart for justifiable cause, ALJ must decide if subsequent conduct severs the conjugal nexus. Johnston v. Baker, 2014 WL 5795792 (BRB 14-003, 2014). 2(16) defines widow as the decedent s wife living with or dependent for support upon him at the time of death, or living apart for justifiable cause or by reason of his desertion at such time. If the separation was for justifiable cause, there must be a conjugal nexus between the decedent and the claimant. This depends in large part on the behavior of the claimant. Where justifiable cause exists for the initial separation, subsequent conduct of the parties may sever the conjugal nexus and thus claimant will not be considered the widow under the Act. Decedent died September 10, 2009. Decedent s spouse (claimant) sought compensation for death, but they had separated on August 11, 2004, signed a separation agreement on May 30, 2005, and the agreement was filed on June 1, 2005. Pursuant to this agreement, property was divided, decedent paid for claimant s health insurance, and claimant received her community share of decedents retirement pension plan but did not receive spousal support. Decedent met a new girlfriend, Ms. Hultgren, in November 2005, filed for divorce in May 2009, and according to Ms. Hultgren, decedent proposed to her in August 2009 but they did not marry because the divorce was not final before the date of death. When decedent was hospitalized before his death he gave claimant a durable power of attorney and wrote a will giving her half of his belongings. After learning claimant called decedent s attorney to ask about his workers compensation claim, decadent got mad, changed his will to give her nothing, and refused to have anything to do with her. The ALJ concluded claimant was not entitled to compensation because the conjugal nexus had been severed at least as of May 2009 when decedent filed for divorce. On appeal, the Board did not address claimant s argument she was dependent on decedent at time of death because this issue had not been raised at hearing. It held claimant must show claimant was living apart from decedent for justifiable cause and a conjugal nexus remained between them at time of death. Decedent was arrested for physically abusing claimant on August 31, 2004, and decedent removed claimant from her house without her belongings on the day of separation. It appears they initially lived apart for justifiable cause, but the Board remanded, instructing the ALJ to determine if at the time of death there no longer was justifiable cause for claimant and decedent to be living apart. If the original justification persisted, the ALJ must decide if the conjugal nexus had been severed.

PAGE 6, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 Evidence Expert Medical Evidence 7(e) examiner selected by OWCP not entitled to dispositive weight. Jackson v. Ceres Marine Terminals, Inc, 2014 WL 749188 (BRB 14-0071, 2014). The OWCP referred claimant to an independent examiner who opined claimant did not have PTSD and no psychiatric condition prevented him from returning to work. The ALJ concluded claimant had PTSD and could not return to regular work. Employer contended the OWCP examiner was entitled to dispositive weight but the BRB disagreed. The ALJ was entitled to evaluate the opinion like any other report. Medical Services - Other Medical monitoring and vaccinations allowed for asbestos disease. Fabre, Jr. v. Ramsey Scarlett & Co., 2014 WL 5308938 (BRB 14-0031, 2014) (unpublished). Claimant had asbestosis. His pulmonologist recommended yearly chest x-rays, evaluations, and pulmonary function studies and influenza and pneumonia vaccinations to prevent chest infections because patients with asbestosis have amore difficult time recovering from such conditions. Another doctor stated persons with asbestosis have a greater and more severe incidences of pneumonia and bronchitis because their lungs were already damaged. The ALJ concluded claimant was entitled to past and future monitoring for his asbestosis, including treatment of bronchitis and pneumonia. Employer objected because bronchitis and pneumonia were not caused by asbestos. The Board affirmed. The ALJ did not conclude bronchitis and pneumonia resulted from asbestosis. Claimant established a causal relationship because persons with asbestosis are more susceptible to bronchitis and pneumonia due to their damaged lungs, and such lung infections are often more severe. Therefore, claimant is entitled to these medical benefits. Miscellaneous Zone of danger not relevant in LHWCA claim. Jackson v. Ceres Marine Terminals, Inc, 2014 WL 749188 (BRB 14-0071, 2014). In tort, the zone of danger test limits recovery to those plaintiffs who sustain a physical impact as a result of a defendant s negligent conduct or who are placed in an immediate risk of physical harm by that conduct. Recovery for negligent infliction of emotional distress is available under FELA but the zone of danger test has limited the scope of the recovery. The ALJ concluded claimant sustained a compensable work related psychological injury, but employer argued the zone of danger test prevented claimant from recovering compensation, The Board held the zone of danger test does not apply to LHWCA claims. Modification Mistake in Fact. No mistake in fact. Claimant selectively interpreted the record, but the ALJ decision was supported by substantial evidence. Watson v. Fluor Daniel Corporation, 2015 WL 1010106 (BRB 13-0374, 2015).

PAGE 7, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 Claimant requested modification of an ALJ decision due to a mistake in fact The ALJ issued a show cause order requesting claimant provide evidence of a change in condition or mistake in fact. Claimant responded with a letter and documentation alleging eight specific mistakes in fact in the ALJ s initial decision. The ALJ addressed each contention and concluded claimant s assertions of error and new evidence did not establish a mistake in fact in the initial evaluation of the evidence of record. The Board affirmed. The ALJ concluded claimant selectively interpreted his own medical history and ignored the evidence of a preexisting cardiac condition. Claimant presented no evidence or argument sufficient to overturn the ALJ s reliance on the opinion of Dr. Fyfe or to warrant a change in his decision to not rely on the opinion of Dr. Chen. These findings are rational and supported by substantial evidence and were affirmed. Additional evidence would not demonstrate mistake in fact. Carolyn Rubidoux, 2014 WL 5308937 (BRB 14-0022, 2014) (unpublished). Claimant alleged decedent was exposed to asbestos during WW II employment at three shipyards and died due to lymphoma, which claimant alleged was due in part to asbestos. Decedent was previously deposed in a civil case and denied working with or around asbestos in the shipyards, contrary to his answers to interrogatories which indicted he had worked with or around asbestos in the shipyard. Prior to hearing on the death claim, Dr. Kagan, pathologist, opined asbestos was a cause of lymphoma. He referenced a history of exposure from standard answers to interrogatories. The answers to interrogatories was not submitted as an exhibit at hearing. Dr. Richard Cohen, occupational medicine specialist, had no opinion on whether asbestos caused lymphoma, but he testified based on Exhibit A decedent had been exposed to asbestos. Exhibit A was a summary shipyard employment asbestos exposures prepared by claimant s attorneys and referenced Mr. Goodloe, rather than Mr. Rubidoux. Dr. Rischitelli, on behalf of the employer, reviewed records and concluded the lymphoma was not due to asbestos. At hearing he testified he could not know if claimant was exposed to asbestos in the shipyard. Claimant s attorneys did not comply with the pre-trial order and were not allowed a continuance to take testimony from Dr. Kenneth Cohen, an industrial hygienist, or Dr. Kagan. The ALJ initially held claimant failed to invoke the 20 presumption because there was no evidence the deceased was exposed to asbestos in the shipyard. Claimant appealed, and the Board remanded with instructions to determine if there was some evidence of exposure. Prior to the ALJ s decision on remand, claimant petitioned for modification based on a mistake in fact. On remand the ALJ concluded claimant had not produced some evidence of exposure, and the evidence claimant sought to admit through modification would not demonstrate a mistake in fact because the new evidence would necessarily rely on the decedent s earlier testimony, which the ALJ concluded failed to demonstrate exposure to asbestos. The BRB affirmed. Responsibility Last Injurious Exposure Rule Last employer responsible. Worsening of symptoms is enough. Wallace v Ceres Marine Terminals, Inc, 2014 WL 749205 (BRB 14-014, 014) (unpublished) A second injury need only aggravate, exacerbate, or combine with a prior condition and result in disability to be compensable. There is no requirement the second injury fundamentally or permanently alter the underlying condition, as a worsening of a

PAGE 8, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 claimant s symptoms is sufficient The record contained substantial evidence supporting the AJL s finding the injury in 2011 aggravated or combined with claimant s back condition after his 2010 injury, resulting in his disability and need for surgery. The second injury was responsible. Settlements Can settle with one party in multiparty claim. Stovall v. Total Terminals, LLC, 2015 WL 1010141 (BRB 14-0666, 2015). Claimant filed a claim with several employers but agreed to settle per 8(i) with one employer. The ALJ refused to approve the settlement because not all parties agreed to the settlement The BRB reversed and remanded. Any potentially liable employer may opt to settle separately with claimant Situs Navigable Waters Storm channel and Los Angeles River not a navigable waterway. O Donnell v. Nautilus Marine Protection, Inc., 2014 WL 724960 (BRB 14-0147, 2014). Claimant was hired to work on a project to fabricate a trash collection boom and install it into the Los Angeles River. No commercial activity occurred on the storm channel of the LA River, and it was not used as commercial highway. It was a man made section that fed rain runoff to the Los Angeles River, was 16 feet deep, and was not used for commercial activity. There were no piers, wharves, or docking areas at employer s work site and the river itself was not navigable above red and white buoys located several hundred yards downstream from the collection boom where claimant was injured. The ALJ concluded claimant was not injured adjacent to or near navigable water. The Board affirmed. There was no evidence of any present commercial use of this section of the LA River or of its susceptibility for future commercial use as an interstate artery of commerce It did not adjoin navigable waters. It was not customarily used for maritime activity. That the US Coast Guard and Army Corps of Engineers declared the LA River navigable where claimant was inured was not dispositive of the navigability in fact inquiry under the LHWCA.

PAGE 9, LHWCA CASELAW REVIEW CASES PUBLISHED IN WESTLAW THROUGH MARCH 18, 2015 Temporary Disability - Entitlement Involuntarily terminated when able to work, did not return to work, subsequently had surgery, but not entitled to TTD. Kogut v. Electric Boat Corporation, 2014 WL 530894 (BRB 14-0046) (unpublished). Claimant injured his knee and eventually was released to return to regular work. Claimant did not respond to employer s five day letter and was terminated effective April 7, 2011. He did not return to work. In April 2011 his doctor recommended additional knee surgery, and on September 7, 2012 he had surgery. His doctor said he was disabled from working from September 7, 2012 and January 10, 2013. The ALJ refused to award TTD. The Board affirmed. Where a claimant is performing his usual work post injury and his inability to continue to do so is not due to the work injury, the employer does not have the burden of establishing the availability of suitable alternate employment. Claimant was terminated for reasons unrelated to his injury. His later work related surgery when he was still not working on his own accord was not altered by virtue that it rendered him physically unable to work. Claimant had no wages to be replaced, and no wage earning capacity at the time of surgery.